Dunstan and Comcare

[2010] AATA 449

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 449

ADMINISTRATIVE APPEALS TRIBUNAL      )   

)    No: A2007/0023

GENERAL ADMINISTRATIVE DIVISION        )    and A1996/449

ReColin Dunstan

Applicant

And    Comcare

Respondent

DECISION

TribunalMr RP Handley, Deputy President

Dr I Alexander, Member

Date17 June 2010

PlaceCanberra

Decision      The Tribunal:

1. (a)   affirms the decision under review dated 7 June 1995;

(b) varies the decision under review dated 3 September 1996 by determining that Comcare is liable to pay Mr Dunstan compensation for incapacity for the period commencing after 2 January 1996 when he became incapacitated for work and ending on his return to work in December 1996.

2.  It is open to the parties to make submissions to the Tribunal in relation to the costs of the proceedings in matter number 1996/449 within 14 days of the publication of these Reasons.  In the absence of any such submissions, the Tribunal orders that the Respondent is to pay the Applicant’s costs in matter number 1996/449 as agreed or assessed. 

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

Mr RP Handley
  Deputy President

CATCHWORDS

COMPENSATION – compensation claimed for depression – harassment by a female colleague – alleged ill-treatment at workplace – relevant period for compensation – whether disease or aggravation of disease was suffered – whether employment contributed to disease or aggravation of disease in material degree – injury – whether disease or aggravation of disease is caused by reasonable disciplinary action or failure to obtain a promotion, transfer or benefit in connection with employment – Decisions under review varied and otherwise affirmed.

PRACTICE AND PROCEDURE – witness summons – whether oppressive – whether issued in good faith for the purpose of obtaining relevant evidence – whether summonsed witnesses able to give relevant evidence – whether abuse of process – summons set aside.

Administrative Appeals Tribunal Act 1975, s 35(2)(b)

Safety, Rehabilitation and Compensation 1988, s 4(1), s 14, s 19, s 23(2)

Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98

Comcare v Maganga (2008) 101 ALD 68; (2008) 47 AAR 487; [2008] FCA 285

Comcare v Sahu-Khan (2007) 156 FCR 536; 44 AAR 523; [2007] FCA 15

Commonwealth of Australia v Albany Port Authority [2006] WASCA 185

Dunstan v Comcare (2006) 93 ALD 390; (2006) 44 AAR 359; [2006] FCA 1655

Re Dunstan and Comcare (2008) 106 ALD 206; (2008) 49 AAR 92; [2008] AATA 1064

Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885

Dunstan v Orr (2008) 171 IR 135; [2008] FCA 31

Re General Merchandise & Apparel Group Pty Ltd and CEO of Customs and Anor

(2009) 51 AAR 1; [2009] AATA 988

Hart v Comcare  [2005] FCAFC 16; (2005) 145 FCR 29; (2005) 87 ALD 341

Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 19; (1988) 79 ALR 1; (1988) 62 ALJR 420; [1988] HCA 31

R v Dunstan (2000) 112 A Crim R 53; [2000] ACTSC 35

Wiegand v Comcare Australia  (2002) 72 ALD 795; [2002] FCA 1464

REASONS FOR DECISION

June 2010

Mr RP Handley, Deputy President

Dr I Alexander, Member

1. Colin Dunstan claimed workers compensation for depression suffered in the course of his employment with the Australian Taxation Office (ATO) in 1991 and 1992, which was the subject of a decision by the Tribunal in 1996.  In November 2006, that decision was set aside by the Federal Court, which remitted the matter to the Tribunal for reconsideration.

Background

1. Mr Dunstan, who is now aged 54, joined the Commonwealth Public Service in 1975 and, from 1987, was employed in the ATO as a computer systems officer.  He first met Ms X in August 1982 while working in the Department of Housing and Construction where they worked together at various times until March 1986 when Ms X transferred to the Department of Administrative Services.  Notwithstanding this transfer, Ms X tried to maintain an ongoing relationship by telephoning Mr Dunstan and visiting him.  By about March 1989, a sexual relationship had commenced.

2. In about March 1990, Ms X transferred to the ATO where, after about a month, she was assigned to work in the Database Administration (DBA) subsection supervised by Mr Dunstan and they began working closely together.  According to Mr Dunstan, as a result of difficulties in their ongoing personal and sexual relationship, he became depressed and, at times, suicidal.  Mr Dunstan sought medical advice and began taking medication prescribed by his general practitioner, who also referred him to a psychiatrist, Dr Robert Tym, whom Mr Dunstan first consulted in July 1991 and is still consulting.

3. Both Mr Dunstan and Ms X also sought counselling and tried to end their personal relationship.  Each subsequently lodged grievances with the ATO about the other’s behaviour.  Mr Dunstan, who was married with three children, separated from his wife in June 1993.  In February 1993, he had been transferred to another area at the ATO, away from where Ms X was working, but, in December 1993, was reassigned to work in the same building as her, although in a different area.  Then in April 1994, he was moved to another building. 

4. On 26 May 1994, Mr Dunstan lodged a (first) claim for workers compensation.  He claimed that from June 1991 he suffered from depression caused by the conduct of a fellow employee, Ms X, and that he first received medical treatment for this condition on 11 July 1991.  The periods in respect of which Mr Dunstan claimed compensation were 11 to 16 July 1991 and 3 to 10 April 1992.  On 12 July 1994, Comcare refused Mr Dunstan’s claim on the ground that his employment had not materially contributed to his condition.  Mr Dunstan requested a review of this decision.  On 7 June 1995, a Comcare review officer confirmed the earlier decision.  Mr Dunstan applied to the Tribunal for a review of this decision on 4 August 1995.  The application was heard in Canberra on 2 and 3 May 1996.  On 28 June 1996, the Tribunal affirmed the decision on the ground that there was no material contribution to Mr Dunstan’s depression from his employment with the ATO. 

5. Mr Dunstan appealed against the Tribunal’s decision to the Federal Court.  These proceedings were initially delayed by other actions commenced by Mr Dunstan in the Federal Court. 

6. On 1 December 1998, Mr Dunstan sent 28 letter bombs to various recipients.  One of the devices exploded at Fyshwick Mail Centre slightly injuring a postal worker.  The other 27 devices were either delivered or located at the Mail Centre. Two of the six delivered were opened but did not explode.  Mr Dunstan was subsequently convicted of a number of serious offences and sentenced to nine years imprisonment.  He was released from prison on parole on 2 January 2008. 

7. Mr Dunstan’s Federal Court appeal against the Tribunal’s decision of 28 June 1996 was determined on 11 December 2006.  Mansfield J found that the Tribunal had erred in law when it directed itself – after having assumed the factual state of affairs to be as Mr Dunstan asserted – that the harassing conduct of a female colleague which caused his depression, even if it occurred to a significant degree in the workplace, could not as a matter of law support a conclusion that his employment contributed in a material way to his depression.  The Tribunal failed, by reason of that error, to assess whether Mr Dunstan’s exposure to that state of affairs in fact materially contributed to his depression.  Mansfield J therefore set aside the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration: Dunstan v Comcare (2006) 44 ALR 359; [2009] FCA 1655. (The remittal to the Tribunal has the file no 2007/23.)

8. On 30 January 1996, Mr Dunstan lodged a (second) claim for compensation for “exacerbation of recurrent depressive disorder” in respect of the period from 16 May 1994 to 1 June 1994 and from 1 January 1996 and continuing.  On 16 April 1996, Comcare refused this claim on the ground that his employment had not contributed to his condition in a material degree.  Mr Dunstan requested a review of this decision.  On 3 September 1996, a Comcare review officer confirmed the earlier decision.  On 16 October 1996, Mr Dunstan applied to the Tribunal for a review of this decision.  (This matter has the file no 1996/449.)  Proceedings in respect of the 1996 claim were stayed pending Mansfield J’s decision on Mr Dunstan’s appeal in respect of the 1994 claim.  The 1996 compensation claim was referred to by Justice Mansfield who noted that (at the time of the Tribunal proceedings) the claim had not been finally “adjudicated upon either by Comcare” (it was still undertaking a review of its determination at the time of the Tribunal hearing) or the Tribunal. 

9. Thus, there are two decisions before the Tribunal in these proceedings:

   ·     (by reason of the Federal Court remittal) the Comcare decision of 7 June 1995 to refuse Mr Dunstan’s claim for compensation for depression in respect of the periods 11 to 16 July 1991 and 3 to 10 April 1992; and

   ·     the Comcare decision of 3 September 1996 to refuse Mr Dunstan’s claim for compensation for “exacerbation of recurrent depressive disorder” in respect of the period from 16 May 1994 to 1 June 1994 and from 1 January 1996 and continuing. 

1. In 2008, a preliminary issue arose as to whether Mr Dunstan could claim compensation for ongoing incapacity for work for the period from 1 November 1998: Dunstan v Comcare [2008] AATA 1064. After hearing submissions from the parties, Senior Member Constance held, at [9], that the clear words of s 23(2) of the Safety, Rehabilitation and Compensation 1988 (the Act) precluded the payment of compensation to a person under s 19 (in respect of incapacity for work) “in respect of any period during which the employee is imprisoned in connection with his or her conviction of an offence”, in Mr Dunstan’s case in respect of the period following his conviction on 3 December 1999 and until his release from prison on 3 January 2008.. However, because the subsection specifically refers to a period of imprisonment “in connection with his or her conviction of an offence”, a person cannot be imprisoned in connection with a conviction of an offence prior to the conviction taking place.  Thus, the Tribunal has jurisdiction to consider a claim only in respect of the period 1 November 1998 to 2 December 1999. 

2. Senior Member Constance noted, at [15], referring to Mansfield J’s decision:

   In my view it is clear that the Court is not excluding the jurisdiction of the Tribunal to deal with a period for which compensation is claimed after the reviewable decision, provided that compensation of that type had been claimed and considered. Rather it is making clear that the Tribunal does not have jurisdiction to deal with a type of compensation which had not been considered by Comcare in accordance with the processes set out in the Act.

The legislative framework and issues

1. In terms of the definitions in s 4(1) of the Act at the relevant times, there is no dispute that Mr Dunstan suffered from an ‘ailment’, namely depression.  An ailment suffered by an employee was included in the definition of ‘disease’:

   disease means:

   (a) any ailment suffered by an employee; or

   (b) the aggravation of any such ailment;

   being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

2. Thus, in the case of an ailment suffered by an employee or the aggravation of any such ailment, the ailment or its aggravation were required to have been “contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”.

3. The definition of ‘injury’ included a disease suffered by an employee but contained certain exclusions:

   injury means:

   (a) a disease suffered by an employee; or

   (b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

   but does not include any such disease, injury or aggravation 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. 

4. In summary, the issues for the Tribunal to determine are:

   (a) in respect of the Mr Dunstan’s first (26 May 1994) claim for compensation for depression in respect of the periods 11 to 16 July 1991 and 3 to 10 April 1992, did Mr Dunstan suffer an ailment, or the aggravation of such an ailment, that was contributed to in a material degree by his employment by the Commonwealth?

   (b) in respect of Mr Dunstan’s second (30 January 1996) claim for compensation for “exacerbation of recurrent depressive disorder” in respect of the period from 16 May 1994 to 1 June 1994 and from 1 January 1996 and continuing, did Mr Dunstan suffer an aggravation of his depression that was contributed to in a material degree by his employment by the Commonwealth?

   (c) in respect of either claim, was the disease or its aggravation suffered as a result of ‘reasonable disciplinary action’ taken against Mr Dunstan or failure to obtain a promotion, transfer or benefit in connection with that employment?  If the answer to this question is ‘yes’ in respect of a claim, then that disease or its aggravation in respect of that claim was excluded from the definition of ‘injury’ in s 4(1) and was thus non-compensable under the Act.

5. Under s 14 of the Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee that results in death, incapacity for work or impairment.  Compensation in respect of incapacity for work is payable in accordance with s 19. 

Confidentiality order

1. On 30 January 2008, the Tribunal made a confidentiality order under s 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) stating that “until further direction, the parties shall not publish any matter contained in documents released to the parties by the Tribunal in this matter which would reveal information which directly or indirectly identifies Ms X”. At the commencement of the hearing on 12 October 2010, Mr McCarthy, representing Ms X, and Mr Stretton, for Comcare, asked for a continuation of this order. Mr Stretton said the events that gave rise to the issues in dispute involved sexual conduct and the breakdown of relationships, noting that Ms X has children and that publication of her name would cause her distress. Mr McCarthy said there is no necessity for her name to be revealed.

2. While Mr Dunstan said that no application for a confidentiality order was made in respect of the original Tribunal proceedings in 1996, it appears he may be mistaken because a s 35(2)(b) order was made by the Tribunal in respect of Ms X on 2 May 1996 and recorded on the Tribunal’s file, and Ms X’s name was not revealed in the decision of the Tribunal dated 28 June 1996. Nor was her name revealed in the decisions of Mansfield J dated 21 December 2005 (Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885) and 11 December 2006 (the remittal decision). Ms X was not a party to those proceedings.

3. In the Tribunal’s view, since Ms X is not a party to these proceedings, there is little or no relevant public interest in her identity and it is desirable because of the nature of Ms X’s involvement with Mr Dunstan, including sexual conduct, and her current medical state, discussed below, to give a further direction under s 35(2)(b) of the AAT Act prohibiting the publication of any material in these proceedings which would reveal information that would directly or indirectly identify Ms X.

Summonses

1. At Mr Dunstan’s request, the Tribunal exercised its power under s 40(1A) of the AAT Act and issued summonses to eight persons requiring them to attend the hearing to give evidence. His application in respect of other persons was rejected on the ground of relevance. Of the eight persons summonsed, all lodged objections and, at the commencement of the hearing, their legal representatives applied to have the summonses set aside.

2. Mr McCarthy, acting for seven of those summonsed, referred the Tribunal to the general principles that apply to the issue of summonses.  These are the same principles that apply to the issues of summonses by a court.  The principles were discussed in a recent decision by Deputy President Forgie: General Merchandise and Apparel Group Pty Ltd and CEO of Customs and anor [2009] AATA 988, at [205] ff. The grounds on which a summons may be set aside include that it is oppressive, that it was not issued in good faith for the purpose of obtaining relevant evidence and that the person to whom the summons was issued is unable to give relevant evidence: Botany Bay Instrumentation & Control Pty Ltd v Stewart (1984) 3 NSWLR 98 at 100 (per Powell J). Bennett J noted in Comcare v Maganga [2008] FCA 285, at [37]:

   the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings …

3. A court (and the Tribunal) has an inherent power:

   to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people …

   (per Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, at 536, applied for example, in Commonwealth of Australia v Albany Port Authority [2006] WASCA 185, at [20].)

4. An ‘abuse of process’, while not capable of precise definition, includes proceedings that are “seriously and unfairly burdensome, prejudicial and damaging” or “productive of serious and unjustified trouble and harassment” (Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, at 247), and also extends to situations where proceedings are invoked for an illegitimate purpose. (See also Commonwealth of Australia v Albany Port Authority [2006] WASCA 185, at [21].)

5. Mr McCarthy submitted that in this instance, the Tribunal needs to weigh the benefit of the witnesses’ evidence for Mr Dunstan’s case against the interests of the witnesses.  The Tribunal also notes that in making its decision on whether to set aside the summonses, it must take into account its obligation to afford Mr Dunstan procedural fairness.

6. In the light of these principles, the Tribunal has made determinations in respect of the eight persons summonsed.  Consideration of each summons follows.

Ms X

1. While Mr Dunstan’s relationship with Ms X is a central part of the events that led to his sending 28 letter bombs in December 1998, the Tribunal notes that Comcare does not contest Mr Dunstan’s evidence of his relationship with Ms X and Mr McCarthy submits that the Tribunal does not need to make detailed findings about that relationship.  There is nothing she can say that would be relevant to the issues before the Tribunal.  In any event, there is evidence from Ms X in the documents, including a statement dated 27 April 1999 that she made to the Australian Federal Police about the events leading up to her being the addressee of a letter bomb intercepted at the Fyshwick Mail Exchange in December 1998.  Mr McCarthy said Ms X has no wish to put her side of the story. 

2. Mr McCarthy submitted that for Ms X to be required to give evidence would be oppressive and would bring the administration of justice into disrepute.  He referred to the sentencing remarks of Higgins J on 26 April 2000 when Mr Dunstan was found guilty of nine offences in relation to his sending of the 28 letter bombs and sentenced to a term of nine years imprisonment: R v Dunstan [2000] ACTSC 35. Justice Higgins said, at [43], that the crimes “were a product of self-pity and a desire for revenge” and, at [12], that “[t]he terror and alarm he caused spread beyond the class of intended addressees to others, including postal workers and members of the addressees’ families”. At [15], his Honour described Mr Dunstan’s employment difficulties as “objectively trivial: his obsession with them was totally unreasonable, and his actions to vindicate himself absurdly self-centred and disproportionate”. Mr Dunstan commented there was no evidence before Higgins J as to events pre-1998.

1. Mr McCarthy also referred to a Pre-Release Report prepared by a Probation and Parole Officer, Mike Ryan, dated 24 February 2004.  Mr Ryan said that “Mr Dunstan has not shown any signs of remorse for his actions, and still presents himself as the aggrieved party”. Mr Ryan said that while Mr Dunstan continued to receive “excellent reports from Custodial, Industrial and Inmate Development staff, there are concerns he has not adequately addressed his offending behaviour”. 

2. Mr Dunstan objected that this report was biased.  He referred to other reports which present a different view.  For example, Dr Hugh Veness, Mr Dunstan’s treating psychiatrist in the period before his conviction and imprisonment, said, in a report dated 20 September 2000, prepared for an appeal by Mr Dunstan, that Mr Dunstan’s “moral judgement was seriously impaired by his depressive illness at the time he made these devices and sent them through the mail”.  Moreover, a psychological report dated 22 March 2004, by Sonya Maude, Intern Psychologist, and signed off by Josephine Clifford, Senior Psychologist, for the NSW Department of Corrective Services, assessed his having “approximately 11.7% chance of recidivism … with the major area of risk being his history of depression”.  Mr Dunstan said he continues to see his treating psychiatrist, Dr Robert Tym, every two weeks.

3. With regard to Ms X’s health, Mr McCarthy provided medical reports from Dr Zoltan Zsadanyi, Consultant Psychiatrist, dated 28 January 2010, from Robert Davies, a Mental Health Consultation – Liaison Nurse Practitioner of Calvary Hospital, dated 28 January 2010, and letters from Ms X’s general practitioner, Dr Lyn Thew, dated 18 January 2010 and 25 January 2010. 

4. In relation to whether Ms X was fit to appear and give evidence at the hearing, and the potential consequences for her, Dr Zsadanyi said:

   It is my considered opinion that Ms X is not fit to appear, give evidence and answer questions from the applicant at the AAT hearing.  Most notably, she is acutely distressed and severely depressed by the prospect of having to give evidence, especially considering that the applicant had previously sent her a letter bomb in the post.  She is fearful for her safety in relation to the applicant.

   I consider that Ms X does not have the capacity to give evidence based on the severity of her mood symptoms and how this has impacted on her cognition …

   Ms X has reported that she has considered killing herself due to the dread of being requested to attend the hearing.  I consider that she is at a high risk of self harm to herself were she asked to give evidence.  Of particular note is that the crisis team is due to be contacting her again this evening.

5. Mr Davies said Ms X had been referred to the Emergency Department by Dr Thew and seen by himself and the psychiatric registrar, Dr Donna Clarke (who asked him to prepare a report), for assessment of Ms X’s acute stress reaction, which appeared to be a direct response to the request for her tribunal attendance.  Ms X was prescribed medication to assist with her “current stress and anxiety and insomnia” and it was recommended that she see a psychologist for ongoing counselling. 

6. In a letter dated 18 January 2010, Dr Thew said Ms X had a “recurrence of trauma reaction/acute depression and anxiety requiring medication” and requested that she not be required to appear in the tribunal proceedings.  In a referral to the Mental Health Crisis Psychiatrist dated 25 January 2010, Dr Thew said Ms X had become acutely depressed and anxious and was experiencing a “reactivation” of Post Traumatic Stress Syndrome.

7. Mr Dunstan responded that Ms X seems to have been quite well until recently and said that he had no intention to embarrass her.  He said Ms X can give evidence about allegations made and the versions of the events described in the statements of other witnesses.  His purpose is not an abuse of process – he merely wants to clarify the events that took place in order to put his case.

8. The Tribunal is not satisfied that any evidence Ms X could give would be of any significant relevance to the issues in dispute, which relate specifically to any material contribution to Mr Dunstan’s condition made by his employment.  Comcare does not contest Mr Dunstan’s evidence of his relationship with Ms X and, as Mr McCarthy pointed out, there is documentary evidence from Ms X before the Tribunal as to what occurred.  Moreover, the Tribunal’s view is that it would be oppressive in the circumstances to require her to give evidence given the medical evidence set out above and the fact that she was the addressee of a letter bomb.  Although Mr Dunstan emphasised that he did not want to embarrass Ms X, he did not appear to appreciate how his questioning those to whom he sent letter bombs might affect them.  Given these circumstances, to require Ms X to give evidence is also likely to bring the administration of justice into disrepute among right-thinking people.  The Tribunal therefore decided to set aside the summons issued to Ms X.

Linda Higginson

1. Ms Higginson (nee Millar) provided a statement to the Australian Federal Police dated 6 December 1998.  She stated that between early 1992 and October 1993 (when she resigned from the ATO), she was employed by the ATO as an Equal Employment Opportunity (EEO) Adviser, the majority of her work being counselling staff on discrimination and harassment issues.  During the course of her work, Ms Higginson counselled both Ms X and Mr Dunstan.  Ms Higginson was the addressee of a letter bomb sent by Mr Dunstan and her name was also written on some of the letter bomb parcels that he sent identifying her as the sender.

2. Mr McCarthy said Ms Higginson’s role was very small and nothing she could tell the Tribunal would be of any relevance to the issues in dispute.  She wrote a memorandum to Moira Scollay, Senior Executive responsible for EEO, dated 2 September 1993, in which she expressed concern about Ms X’s safety and welfare as a result of her relationship with Mr Dunstan.  Mr McCarthy said Ms Higginson has no interest in maintaining the correctness of the memorandum and, as confirmed by Mr Stretton, Comcare will not rely on it in any way.  Questioning Ms Higginson about the memorandum would be purposeless.  Mansfield J, in his decision in Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885, at [77], noted that Ms Higginson’s memorandum “might have been seen as one sided and judgemental”. He said, however, that “not having heard all the evidence on that topic, I do not (and do not need to) formally determine its accuracy”. Mr McCarthy said it is, of course, open to Mr Dunstan to give evidence about the relevant events.

3. Mr McCarthy said that, in the circumstances, to call Ms Higginson as a witness would be oppressive.  He provided the Tribunal with a report from Dr Stan Doumani, Ms Higginson’s general practitioner, dated 10 September 2009, and a report from Peter Fox, Ms Higginson’s treating clinical psychologist, dated 16 September 2009.  Dr Doumani said Ms Higginson “is currently undergoing counselling for major depression and anxiety and is also on medical treatment for these conditions”.  He said that Ms Higginson becomes “tearful and visibly shaken” when talking about Mr Dunstan and, given “her current treatment for depression/anxiety and her fear for her safety and that of her children”, he has advised her not to attend hearings involving Mr Dunstan because “I feel sure it would pose a significant threat to her mental health and well-being”.  Mr Fox said that for Ms Higginson to appear at the Tribunal hearing would be “re-traumatising” and to be questioned by Mr Dunstan “would likely represent a new traumatic assault by him”.  In Mr Fox’s opinion, “she is not fit to deal with the prospect or the actuality of such abuse”.

4. Mr Dunstan said Ms Higginson’s oral evidence was “essential so that the Tribunal may make findings about the actual state of affairs to which the Applicant was exposed in his employment”, contrary to the evidence of Comcare’s witnesses. 

5. The Tribunal is not satisfied that any evidence Ms Higginson could give would be of material assistance in resolving the issues in dispute, especially in view of Mansfield J’s comments about the reliability of her evidence and Comcare’s non-reliance on her evidence.  Moreover, the Tribunal’s view is that it would be oppressive, unfairly burdensome and potentially damaging to require her to give evidence given the medical evidence set out above and the fact that she was the addressee of a letter bomb.  Given these circumstances, to do so is also likely to bring the administration of justice into disrepute among right-thinking people.  The Tribunal therefore decided to set aside the summons issued to Ms Higginson.

Kim Bennett

1. Ms Bennett is a solicitor who has been employed by the Australian Government Solicitor (AGS) since 1999.  Mr McCarthy said she has no direct knowledge of Mr Dunstan’s involvement in the facts in issue and there is no evidence she could give that would be relevant to such facts.  Moreover, as a solicitor with AGS, anything she knows in relation to these proceedings and any such evidence she could give is likely to be subject to legal professional privilege.  For example, the fact that in 2002 she apparently gave advice to the ATO in relation to Mr Dunstan’s claims concerning the events of 1993 is irrelevant to the issues before the Tribunal which are set out in the above paragraph [16] of these Reasons. 

2. Mr Stretton expressed general agreement with Mr McCarthy’s comments and referred the Tribunal to the decision in Dunstan v Orr [2008] FCA 31, at [16], where Besanko J commented that Mr Dunstan:

   remains obsessed by what he perceives to be the injustice involved in the way in which he was treated by the ATO, officers of the ATO and others.  He tended to focus on matters which were not directly relevant to the issues in the proceeding.  He is convinced there was a conspiracy against him …

3. In written submissions, Mr Dunstan referred to Ms Bennett’s involvement in his dispute with the ATO and to the ATO documents to which she has had access with regard to that dispute.  He said she could give evidence about the state of affairs to which he was exposed in his employment.

4. The Tribunal is not, however, satisfied that Ms Bennett’s evidence would be relevant to the issues in dispute.  She began working in the AGS and became involved in the matter in 1999, well after the occurrence of the events that gave rise to Mr Dunstan’s compensation claims which are the subject of these proceedings.  Moreover, as Mr McCarthy pointed out, as a solicitor advising the ATO, it is likely that at least part of any evidence she might give would be subject to legal professional privilege.  The Tribunal therefore decided to set aside the summons issued to Ms Bennett.

Sue Langford

1. Ms Langford, who is a psychologist, provided a statement to the Australian Federal Police dated 5 December 1998.  Between 1991 and 1995, she was employed by an agency called EASACT providing employer assistance programs for government and non-government departments and agencies, including counselling services for employees and their families.  The ATO had a contract with EASACT and Ms Langford provided services for ATO staff. 

2. Ms Kennedy, for Ms Langford, noted that Ms Langford was the recipient of a letter bomb.  Her last contact with Mr Dunstan – 16 years ago – was in her capacity as an employee of EASACT, which retained all the records in relation to her work.  Ms Kennedy said there would be no utility in Ms Langford’s evidence and a balancing of interests favoured the summons being set aside.  Ms Langford is apprehensive that she will be asked questions about matters that will cause her anxiety.

3. Mr Stretton contended that any evidence Ms Langford would be able to give – about the relationship between Mr Dunstan and Ms X – would not be relevant to the questions to be determined by the Tribunal.  In any event, given the length of time since Ms Langford’s involvement, she would have no specific recollection of events outside the notes she made at the time.  The utility of her evidence needs to be balanced against the harm that might be caused to her if she is required to give evidence.

4. Mr Dunstan noted that Ms Langford had conducted counselling sessions with him and Ms X, both separately and together.  He wishes to ask Ms Langford questions about entries in her clinical notes, which are in evidence before the Tribunal. 

5. Having considered the parties’ submissions, the Tribunal is not satisfied that Ms Langford’s evidence, which would be concerned with the relationship between Mr Dunstan and Ms X, is relevant to the issues before the Tribunal relating to whether Mr Dunstan’s employment made a material contribution to his condition or its aggravation.  In any event, the Tribunal has Ms Langford’s statement and her clinical notes and it is unlikely that, after 16 years, she would be able to do anything other than rely on her clinical notes.  Any further evidence she would be able to give is unlikely to be of any utility and, given that she was the recipient of a letter bomb, in our view it would be oppressive to require her to give evidence and also likely to bring the administration of justice into disrepute among right-thinking people.  The Tribunal therefore decided to set aside the summons issued to Ms Langford.

Robyn Orr and John Higham

1. Ms Orr and Mr Higham were senior officers employed by the ATO.  Both were recipients of letter bombs.  On 4 June 1997, Ms Orr, as the delegate of the Secretary of the ATO, suspended Mr Dunstan from duty in relation to alleged computer mainframe usage and alleged systems violations in the period December 1996 to May 1997.  On 18 June 1997, Mr Higham was appointed to investigate the matter and to consider whether Mr Dunstan should be charged with breach of his duties. Mr Dunstan’s application to the Federal Court for a review under the Administrative Decisions (Judicial Review) Act 1977 in respect of the conduct of Ms Orr, Mr Higham and another officer was dismissed by Besanko J in Dunstan v Orr [2008] FCA 31.

2. Mr Stretton submitted that neither Ms Orr’s nor Mr Higham’s evidence would be relevant to these proceedings since their involvement was not until 1997, after the original Tribunal decision on 28 June 1996.  Mr Stretton drew attention to Justice Besanko’s comment, at [16], that Mr Dunstan “remains obsessed by what he perceives to be the injustice involved in the way in which he was treated by the ATO, officers of the ATO and others”.  His Honour found that both Ms Orr and Mr Higham had acted in good faith.

3. Mr Dunstan said that the action taken against him by Ms Orr and Mr Higham was similar to that in 1995/1996, and essentially a continuation of the previous course of conduct. 

4. The Tribunal is not satisfied that Ms Orr’s and Mr Higham’s evidence would be relevant to the issues before the Tribunal since their actions in relation to Mr Dunstan took place after the events which were the subject of Mr Dunstan’s compensation claims currently before the Tribunal.  The Tribunal therefore decided to set aside the summons issued to Ms Orr and that issued to Mr Higham.  The Tribunal notes that their conduct was reviewed by the Federal Court in Dunstan v Orr [2008] FCA 31, in which Besanko J rejected Mr Dunstan’s claim that they had acted improperly.

San Neo Ong

1. Mr Dunstan said that Ms Ong worked in the training section of the ATO and approached him about attending a training course.  Ms Ong witnessed his unsuccessful attempts at gaining computer access which were the subject of the misconduct charges laid against him.  Mr Dunstan submitted that Ms Ong could give evidence directly relevant to Comcare’s claim that the disciplinary action commenced against him in 1997 was reasonable.  He said Ms Ong’s evidence could help establish that his motive was innocent and that, in fact, he was trying to be helpful, with the result that the misconduct charges were particularly distressing for him.

2. Mr Stretton noted that Ms Ong was not called to give evidence in the Federal Court proceedings in Dunstan v Orr [2008] FCA 31. Since her involvement with Mr Dunstan was in relation to the computer violations that took place after the original tribunal proceedings, there is nothing to indicate that her evidence would be relevant to the current proceedings.

3. The Tribunal agrees with Mr Stretton that Ms Ong’s evidence does not relate to the period concerning the compensation claims which are the focus of the these proceedings.  Thus, the Tribunal is not satisfied that Ms Ong’s evidence would be relevant and therefore decided to set aside the summons issued to her.

Ursula Billings

1. Ms Billings provided a statement to the Australian Federal Police dated 5 December 1998.  She has been an employee of the ATO for some years and in 1992 was employed in the personnel section, where her duties included grievances and discipline.  In the period 1992 to 1994, Ms Billings was involved in discussions and grievance handling in relation to Mr Dunstan and Ms X.  She was subsequently the recipient of a letter bomb. 

2. Mr Stretton said that Ms Billings’ was prepared to give evidence by telephone, but he contended that her involvement was peripheral. 

3. Mr Dunstan said that it is essential for the Tribunal to hear Ms Billings’ evidence because she was the grievance officer – the gatekeeper in respect of grievances – who has personal knowledge of the state of affairs to which he was exposed in his employment. 

4. The Tribunal is satisfied that Ms Billings’ evidence may be relevant to the issues before it.  The Tribunal dismissed the application to set aside the summons issued to Ms Billings on the basis that, in view of the fact that she was the recipient of a letter bomb, she be allowed to give evidence by telephone, and on condition that all relevant documents were identified and supplied to her beforehand. 

The relevant facts

1. The facts surrounding this matter are complex and span a significant number of years.  The Tribunal has been selective and has sought to summarise only those facts that are relevant to its determination of the issues in this matter.

2. Mr Dunstan was the middle and only male child of five children in his family.  He attended school in Wollongong where he excelled in science and mathematics.  He commenced tertiary study at the ANU in 1972, studying two years full-time and two years part-time and graduating with a Bachelor of Arts in Computer Science, Sociology, Human Sciences and Asian Civilisations in 1977. Mr Dunstan married in January 1977. He and his wife had three daughters, the eldest born in 1979 and twins born in 1985.

3. Mr Dunstan joined the Australian Public Service in October 1975 working in various departments before transferring to the Department of Housing and Construction as a computer systems officer in July 1982.  He first met Ms X in August 1982 when she transferred to the same Department and was placed under his supervision. Mr Dunstan was seconded to another Department in December 1983, returning in June 1985 when he again supervised Ms X. 

4. In March 1986, Ms X transferred to the Department of Administrative Services. Mr Dunstan states that from that time, Ms X began “an escalating and obsessive pattern of contact” with him.  In October 1986, having discussed this with his wife, who threatened to leave him if he spoke with Ms X again, Mr Dunstan tried to break off all further contact with Ms X.  However, Ms X tried to persist with the relationship, telephoning Mr Dunstan at work on many occasions.

5. About February 1987, Mr Dunstan transferred to the ATO where he was promoted to the position of Senior Information Technology Officer and Assistant Director of the DBA subsection.  In March 1987, Ms X resumed telephoning Mr Dunstan, often on several occasions every day and keeping him on the phone for long periods. On three or four occasions, she came to his office.

1. In March 1989, Ms X transferred to the Australian Bureau of Statistics at Belconnen and, at about the same time, Mr Dunstan commenced some part-time teaching at Belconnen TAFE for a computer programming course. Ms X would come to where his car was parked in the car park to meet him and, according to Mr Dunstan, made various demands of him, threatening to tell his wife if he did not comply.  The demands included that he sexually stimulate her and on some occasions she reciprocated by stimulating him. 

2. In about April 1990, Ms X and Ms Betty Hand transferred to the Data Products unit of the ATO. However, after about a month, Ms X was assigned to work in the DBA subsection supervised by Mr Dunstan. Thereafter, they would often have lunch together and sometimes engage in sexual stimulation in Mr Dunstan’s car.  They first had sexual intercourse in December 1990.  According to Mr Dunstan, Ms X’s behaviour towards him was frequently punctuated by bouts of jealousy directed at his wife and periods of hostility towards him. 

3. Ms Hand provided a statement dated 16 October 2009 and gave oral evidence at the hearing.  She stated that about mid 1990, some months after she transferred to the ATO, a member of the administrative staff told her of jokes circulating in the database area about Mr Dunstan and Ms X, and suggested that Ms Hand, as one of the senior women in the database area, should speak with Ms X about this.  Ms Hand said she spoke first to Mr Dunstan’s supervisor, Don Bartley (Director of Database Services), about this and he agreed that Ms Hand should speak with Ms X.  Ms Hand took Ms X to a coffee shop where she told Ms X about the jokes.  Ms X became very upset and talked of leaving the ATO because it was so embarrassing.  She denied a close personal relationship with Mr Dunstan.  Ms Hand reassured Ms X that it was not necessary for her to resign but suggested that Ms X take someone else for tea or coffee once in a while. 

4. Ms Hand said that the next day, Mr Dunstan called her into a room and asked her about the source of the jokes.  He was angry and aggressive and wanted to know who had made the jokes.  Ms Hand was upset because she thought she had been doing the right thing by trying to protect Ms X. 

5. Ms Hand said Mr Dunstan had particularly good technical skills but was not a good manager.  At various times, he acted as her manager in the course of the rotating management system.  He did not join in social activities, gave preference to certain duties and ignored other tasks, and gave preferential treatment to some staff including Ms X.  (In his evidence, Mr Dunstan denied this.)  Ms Hand said staff morale dropped when Mr Dunstan was their acting manager.  In her view, he liked to retain control and to set rules and boundaries.

6. Mr Dunstan said that after the first occasion when he and Ms X had intercourse (in December 1990), Ms X was away for a few weeks.  When she returned in early 1991, she had become even more jealous, parking across the road from his house in the mornings, following him when he took his children to school, driving past his house at weekends, telephoning him at home and threatening to come to his house to have dinner with him and his family.  In April 1991, he therefore booked into a motel for a few nights in order to cook some meals for Ms X.  However, when she arrived for a meal, she just wanted to go to bed.  He insisted that they eat first because he did not want the meal to overcook.  Mr Dunstan said that after having intercourse on this second occasion, and also on the following day, there was no further sexual activity between them for six or seven months. 

7. Mr Dunstan said that it was in this period that he first suffered severe depression and consulted his general practitioner, Dr Angela Garrett (later Dr Angela Nimmo).  On 11 July 1991, Dr Garrett referred him to a psychiatrist, Dr Robert Tym, describing Mr Dunstan as being “profoundly depressed”.  Mr Dunstan first saw Dr Tym on 17 July 1991.  In a report to Dr Garrett dated 22 July 1991, Dr Tym noted that Mr Dunstan was depressed and said he had advised him to increase the dose of Prothiaden (originally prescribed by Dr Garrett at 75 mgs) to 150mgs at night.

8. Mr Dunstan said that in October 1991, when Ms X was attending a training program in Sydney, she invited him to go to Sydney to meet her.  He flew to Sydney after work and after they had had a meal at a nearby restaurant, they went to her room, he stimulated her and eventually they had intercourse.  There was no further sexual activity between them until February/March 1992 when Ms X invited him to meet her in Sydney again.  They stayed in the same motel and engaged in mutual sexual stimulation but not intercourse.  In the morning, Mr Dunstan caught the bus back to Canberra while Ms X attended her training course. 

9. Mr Dunstan said his relationship with Ms X fluctuated around this time and he initiated counselling for both himself and Ms X with Sue Langford of EASACT Australia Pty Ltd (referred to as EASACT earlier in these Reasons, which provided counselling services for ATO employees) with a view to ending their relationship.  His wife also became aware of his relationship with Ms X about March/April 1992 and in June 1992 he and Ms X decided to end the relationship.  According to Mr Dunstan, he and Ms X had no further contact until August 1992 when he made a suicide attempt and was hospitalised.  On 27 August 1992, when Ms X telephoned Mr Dunstan at home, his wife answered and she subsequently visited Ms X at her home and Ms X told her husband of the relationship with Mr Dunstan. 

10. On 30 August 1992, Mr Dunstan and his wife and Ms X and her husband came to an agreement for Mr Dunstan and Ms X to end their relationship and have no further contact, an agreement which is in Mrs Dunstan’s handwriting and which they all signed.  Ms X also agreed to seek an immediate transfer from the ATO to another department while Mr Dunstan agreed to take three weeks leave.  It was at this time that Mr Dunstan’s direct supervisor, Mr Bartley, became aware of Mr Dunstan’s relationship with Ms X and Ms X requested a transfer.  Mr Bartley reported to the Assistant Commissioner in the IT Services Group, John Growder, who in turn reported to the First Assistant Commissioner in charge of IT Services, Geoff Seymour.  After discussion between Mr Bartley and Mr Seymour, Mr Seymour asked Mr Bartley to arrange an interim ‘outposting’ for Ms X within the ATO while arrangements were made for her transfer elsewhere. 

11. On 18 November 1992, Ms X withdrew her application for a transfer and asked to return to the DBA subsection stating that she would no longer have difficulty working in the same area as Mr Dunstan.  On 20 November 1992, Mr Dunstan wrote to Mr Seymour requesting that Ms X be moved to another area in the IT Services Group.  On 24 November 1992, Mr Seymour and Mr Bartley met with Mr Dunstan and his counsellor, Ms Langford, who advised that Mr Dunstan was severely depressed and that for the sake of his psychological well-being he should not work in the same vicinity as Ms X.  Ms Langford repeated this advice in a meeting on 9 December 1992 when Mr Seymour and Mr Bartley met with Ms X and her counsellor, Lorraine Fox.  (These facts are documented in Mansfield J’s decision in Dunstan v HREOC (No 2) [2005] FCA 1885, at [65] to [67]. Further references to Mansfield J’s decision in this case are to the specific paragraphs in his judgment.)

12. On 10 December 1992, Mr Seymour in consultation with Mr Bartley, and motivated by a desire to treat them both equally, decided to move both Mr Dunstan and Ms X out of the DBA subsection (Mansfield J at [69] to [75]).  In February 1993, they were transferred to different sections within the ATO.  In March 1993, Mr Dunstan, who states that he was depressed on being moved from the DBA subsection, contacted Linda Higginson, an ATO EEO adviser, who had been counselling Ms X.  According to Mr Dunstan, Ms Higginson told him that Ms X spoke positively of him, and he thought if this was the case, they might both return to the DBA subsection.  He therefore telephoned Ms X, who “hung up” on him and subsequently complained to Mr Seymour.  Mr Seymour reprimanded Mr Dunstan for this conduct.  When, on 26 April 1993, Mr Dunstan wrote to Ms X, and Mr Seymour learned of this, he asked Mr Dunstan for his consent to contact Dr Tym and Ms Langford to discuss the treatment and counselling he had received.  Mr Dunstan claims that Mr Seymour threatened to suspend him from duty if he refused to consent, which Mr Seymour denied (see Mansfield J at [80]).  Mr Dunstan gave his consent. 

13. On 9 May 1993, Mr Dunstan received legal advice regarding three possible claims against Ms X, a copy of which he provided to Mr Seymour together with a memorandum describing his experiences with Ms X.  On 10 May 1993, Ms X lodged a workplace grievance against Mr Dunstan alleging workplace harassment.  On 14 May 1993, Mr Dunstan wrote to Mr Seymour requesting that he and Ms X be transferred back to the DBA subsection.  Mansfield J, at [83], states that Mr Seymour did not consider this wise. 

14. Ms Hand said that in about early 1993, when she was on leave, she received a telephone call at home from another member of the DBA subsection team to say that Mr Bartley was canvassing staff to see how they would feel if Mr Dunstan was to return to work in the area.  Ms Hand subsequently organised a meeting on 14 May 1993 of staff in the team with Linda Millar, the Equal Opportunity Officer in the IT Services Group, to discuss their views, on condition that the meeting not be documented.  Because staff had concerns for their personal safety and were afraid of Mr Dunstan commencing litigation against them, they did not want the views expressed recorded and attributed to particular named staff.  At the meeting, complaints were raised about Mr Dunstan’s poor management skills and the staff present were unanimous that he should not return to work in the DBA subsection.  Ms Hand said that Mr Bartley later told her that Ms X had withdrawn her objection to Mr Dunstan returning to the DBA subsection and so he had decided that Mr Dunstan would return although he would located in a different area. 

15. In August and September 1993, Ms X and Mr Dunstan made various allegations against each other to the ATO.  In mid-August 1993, Mr Dunstan made a formal request to return to work in the DBA subsection.  On 6 September 1993, Mr Dunstan met with Mr Bartley who told him of the concerns expressed by the DBA subsection staff.  On 17 September 1993, Mr Dunstan complained of sexual discrimination by the ATO to the ACT Human Rights Office.  On 29 October 1993, Tony Butterfield of the ATO Personnel section, replied separately to Ms X and Mr Dunstan informing Ms X that she had no legitimate complaint because there were no current harassment issues related to the workplace, and informing Mr Dunstan that his complaint of 6 September 1993 did not disclose sexual harassment relating to the workplace.

16. On 1 November 1993, Mr Dunstan made another formal complaint of sexual harassment in the workplace.  On 29 March 1994, Acting First Commissioner Mobbs informed Mr Dunstan that the complaint could not reasonably be sustained. 

17. On 15 April 1994, Mr Dunstan made a further complaint of sexual harassment by the ATO to the Human Rights and Equal Opportunity Commission.  On 21 April 1994, Mr Seymour directed Mr Dunstan to attend a meeting with him.  Mr Dunstan said he agreed to do so under “duress”, being “very emotionally distressed at the time”, and subsequently made a complaint of workplace harassment against Mr Seymour, later found to have no basis (Mansfield J at [107]).  Then on 3 May 1994, Mr Dunstan attended a meeting with Mr Growder and others at which Mr Dunstan’s right to return to a position in the DBA subsection was discussed. 

18. On 26 May 1994, Mr Dunstan lodged his first claim for compensation in respect of “depression”, claiming compensation for incapacity in July 1991 and April 1992.

19. However, Mr Dunstan states that these events in April/May 1994 were the reason for the stress reaction he suffered which gave rise to his being incapacitated for work at that time (from 16 May to 1 June 1994) and which was included in his second claim for compensation for “exacerbation of recurrent depressive disorder” lodged on 30 January 1996 (see below). 

20. On 18 June 1994, at the request of Comcare, Mr Dunstan was examined by a psychologist, Tom Sutton.  Mr Sutton said that, in his opinion, Mr Dunstan suffers from mild Paranoid Personality Disorder which predated his work with the ATO and that his depression was related to perceived attacks and emotional disruptions caused by Ms X which were not work related.  On 12 July 1994, Comcare notified Mr Dunstan that it denied liability for his claim for depression.  Mr Dunstan sought a review of this decision. 

21. In about August 1994, Ursula Billing (who was employed in the ATO Personnel section with responsibilities including grievances and discipline, and who at the time was also acting as the Equal Opportunity Officer) asked Mr Bartley to prepare a report on Mr Dunstan’s work performance in the period 7 June to 22 August 1994.  Mr Bartley reported Mr Dunstan was performing satisfactorily: “His  work output has been good and his working relationship with colleagues appears fine.”  Ms Billings (who was the recipient of a letter bomb sent by Mr Dunstan) provided a statement to the Australian Federal Police dated 5 December 1998 and gave evidence at the hearing.  She said she sent the report prepared by Mr Bartley to the Commonwealth Medical Officer (CMO) for the purpose of assessing Mr Dunstan’s fitness for duty. 

22. Also in about August 1994, Mr Dunstan asked Mr Bartley for permission to attend a training program.  Mr Bartley refused because he did not think the course was of direct relevance to Mr Dunstan’s duties.  On 9 September 1994, Mr Dunstan responded by sending Mr Bartley an email threatening to make a grievance complaint against all staff of the DBA subsection for “making malicious and unwarranted attacks against me” (Mansfield J at [112]).  On 16 November 1994, Mr Dunstan made a formal complaint about Mr Bartley’s conduct to the ATO alleging discrimination and victimisation (at [113]). 

23. On 22 November 1994, Mr Bartley engaged Henry Price, a psychologist with EASACT, to explore the prospect of resolving the conflict between Mr Dunstan and other staff in the DBA subsection with a view to Mr Dunstan being able to return to work there.  This process ultimately took 12 months with Mr Price reporting to Mr Bartley on 5 December 1995. 

24. Ms Hand gave evidence that Mr Bartley asked her and others to attend a meeting with Mr Price to explore the possibility of reconciliation between Mr Dunstan and the rest of the staff.  Several staff, including Ms Hand, agreed to attend, but on condition that their names were not recorded and that they were able to view any documentation prepared by Mr Price before it was handed to Mr Bartley.  Ms Hand said that to the best of her recollection there were three meetings with Mr Price, two earlier and one later in 1995.  She only recalls seeing one letter drafted by Mr Price, a letter to Mr Bartley dated 17 February 1995.

25. Mr Price met with Mr Dunstan in late 1994 and met with four or five staff from the DBA subsection on 25 January 1995.  It was these meetings that were the subject of Mr Price’s letter to Mr Bartley dated 17 February 1995.  There followed other meetings, further complaints made by Mr Dunstan made to the ATO and other agencies involved, and consequent correspondence. 

26. On 31 May 1995, Mr Dunstan commenced long service leave until the end of November 1995.  He subsequently asked for this to be extended until the end of December 1995 when he learned that the conflict resolution process facilitated by Mr Price had not been completed.  By letter dated 11 December 1995, the ATO informed him that deductions had been made from his salary because his application for sick leave in March/April 1995 had not been supported by medical certificates.  Mr Dunstan said this was incorrect because he had supplied a medical certificate with his sick leave application. 

27. Mr Dunstan said the result of these deductions from his salary was that his child support payments were stopped and his wife, who had separated from Mr Dunstan, did not receive the regular payments for their children for the Christmas period and had to borrow money as a result.  Mr Dunstan said this caused him considerable stress.  Mr Dunstan first phoned Mr Bartley about this on 7 December 1995.  Mr Bartley apparently sent Mr Dunstan’s additional documentation regarding his sick leave situation to Mr Seymour and not to the ATO Personnel section.  Mr Dunstan phoned Mr Bartley again on 14 December 1995 and he sent the relevant forms to the Personnel section where they were received on 17 December 1995.  However, it was too late at this stage for his pay to be remedied before Christmas.  It was not until mid January 1996 that the Personnel section fixed the problem and paid him properly.

28. Mr Dunstan continued to press to return to work in the DBA subsection.  On 21 December 1995, John Growder, the Assistant Commissioner in the IT Services Group, who was Mr Bartley’s supervisor, wrote to Mr Dunstan informing him that on his return to work he was to be placed in the IT Services Costing project and of his work location.

29. Mr Dunstan said when he returned to work on 2 January 1996, he was given an office in a building across the road from where his direct supervisor was located. Mr Dunstan found the office “unpleasant and makeshift” (Mansfield J at [174]): he considered the office more of a storage area and felt very isolated.  He spent the day identifying irregularities in the processing of his leave entitlements which had resulted in his child support payments being stopped in late 1995 and disrupted his salary payments in November and December 1995. 

30. Mr Dunstan said he thought that the ATO were being deliberately provocative: that what had happened had been designed to upset him and that it was obvious that the ATO did not want him back at work.  He was very distressed and this was the trigger for him to go and see his general practitioner who gave him a certificate stating that he was unfit for work for a couple of weeks.  Mr Dunstan said he also went to see his union representative.  While Mr Growder’s evidence before Mansfield J was to deny Mr Dunstan’s suspicions and, indeed, Comcare states the area had standard public service accommodation facilities, it is Mr Dunstan’s perception and the effect of that perception on his medical condition that is important for these proceedings.

31. On 4 January 1996, Mr Bartley wrote to Mr Dunstan informing him of the unsuccessful outcome of the process undertaken by Mr Price and of the decision that he could not return to work in the DBA subsection.  Mr Dunstan lodged a grievance against Mr Bartley in relation to this decision on 25 January 1996.  On 30 January 1996, Mr Dunstan lodged a second claim for workers compensation for “exacerbation of recurrent depressive disorder, exacerbation of mental disorder (depression/anxiety)”.  On 16 April 1996, Comcare denied liability for this claim and Mr Dunstan sought a reconsideration of this decision. 

32. In the meanwhile, it appears there were discussions involving Mr Growder and Mr Dunstan about a possible return to work by Mr Dunstan, but Mr Dunstan found the options put to him were unacceptable (Mansfield J at [175].) Mr Dunstan said various documents had been released to him in connection with his ongoing complaints before the ACT Human Rights Office and proceedings in the Tribunal in relation to his first claim for compensation. It seems that Mr Dunstan’s perception of his ill-treatment by the ATO was reinforced by what he learned from the documents released to him, and by the course of the events through 1996.

1. On 28 June 1996, the Tribunal affirmed the reviewable decision of Mr Dunstan’s first workers compensation claim.  (This was the Tribunal decision set aside by the Federal Court on 11 December 2006.)

2. In October 1996, Mr Dunstan’s paid leave entitlements were exhausted which he states created stress for him and his ex-wife and children.  Eventually, in mid-December 1996, Mr Dunstan returned to work at the ATO under the supervision of Mr Growder. 

3. Mr Dunstan continued with various legal proceedings in 1997.  In May 1997, it was alleged that Mr Dunstan’s use of the computer mainframe system was in violation of his access requirements.  Mr Dunstan has always denied this.  On 4 June 1997, Mr Dunstan attended a meeting at which this allegation was discussed, in the course of which he was suspended from duty so that his alleged violation could be investigated.  (He remained suspended until his arrest on 4 December 1998.)  Following the investigation, disciplinary charges were laid and, it appears, were never concluded.  On 24 October 1997, Mr Growder wrote to Mr Dunstan stating that his position had been identified as excess to ATO requirements and asking whether he was interested in voluntary retrenchment.  If so, a formal offer would be made; if not, Mr Dunstan would be subject to a retention period of between seven and 13 months during which “HR Policy and Support staff” would assist him in seeking redeployment.  Mr Dunstan states that on seeking a clarification of his position in 1998, he was informed that none of the options described in Mr Growder’s letter were open to him. 

4. On 4 December 1998, Mr Dunstan was arrested and charged with a number of criminal offences in relation to his conduct in sending 28 letter bombs to various recipients.  He was detained in custody until 19 March 1999 when he was released on bail.  That bail was subsequently revoked and Mr Dunstan was in custody between 9 April and 7 July 1999, when he was freed on bail as a result of a decision of the Full Federal Court.  On 26 April 2000, Mr Dunstan was convicted of a number of offences and sentenced to nine years imprisonment.  He was released on parole on 2 January 2008.

The Medical Evidence

1. The Tribunal heard evidence in person from Mr Dunstan’s treating psychiatrist, Dr Robert Tym, and from the psychiatrist who treated Mr Dunstan during 1999 and 2000 at the time of the criminal proceedings, Dr Hugh Veness.  Dr Norman Rose, to whom Comcare referred Mr Dunstan for assessment, gave evidence by conference telephone from Melbourne.  In addition, the file evidence includes reports from other specialists by whom Mr Dunstan has been treated or assessed at various times. 

2. Dr Tym first saw Mr Dunstan on 17 July 1991.  In a report to Mr Dunstan’s general practitioner, Dr Angela Garrett, dated 22 July 1991, Dr Tym described Mr Dunstan as being depressed and said that he had advised Mr Dunstan to increase his dosage of Prothiaden (first prescribed by Dr Garrett) to 150 mgs.  In a Workers Compensation Medical Certificate completed by Dr Tym on 16 May 1994, he described Mr Dunstan as suffering from “exacerbation of recurrent depressive disorder” and in another Certificate completed on 23 January 1996, from “exacerbation of mental disorder (depression/anxiety)”.

3. On the fourth day of the hearing, 4 February 2010, Dr Tym provided a report to the Tribunal of that date in support of Mr Dunstan’s application for an adjournment of the hearing on that day.  Dr Tym said he did “not consider Mr Dunstan to be mentally ill but prone to high levels of anxiety and depressed moods, with occasional suicidal ideation…”.  He said, “In my opinion, he [Mr Dunstan] has the Attention Deficit Disorder (ADD) type brain” which “can give rise to an [sic] extreme and dangerous emotional difficulties with severely depressed moods and anxiety under certain circumstances”. 

4. Dr Tym stated that for many years Mr Dunstan’s anxiety and mood have been stabilised by use of the medication tranylcypromine (Parnate).  At one time, he took Mr Dunstan off Parnate and trialled him on dexamphetamine, but when this did not prove successful, Parnate was restored.  Parnate is a potent anti-anxiety agent.  Dr Tym said that in his clinical judgement, “Mr Dunstan does not suffer from nor has he ever suffered from any categorical-type mental disorder in the form of Major Depressive Disorder …”, and “I do not believe that he has any form of personality disorder, including Paranoid Personality Disorder”. 

5. In a report dated 11 March 2010, Dr Tym noted that in 1991, “[i]t had been suspected that Mr Dunstan was suffering from a mental illness of categorical (abnormal) type Major Depressive Disorder (MDD) DSM IV TR 296.22”.  Dr Tym suggested as an alternative explanation for Mr Dunstan’s “persisting profoundly depressed mood” that he suffers from a Dysthymic Disorder, and Dr Tym said this is what he is treating Mr Dunstan for currently.  

6. In oral evidence, Dr Tym said Mr Dunstan’s scholastic record is not inconsistent with his having the ADD type brain.  Dr Tym acknowledged that Mr Dunstan does not meet some of the criteria for ADD in DSM IV, but he said he finds DSM IV “of very little use”, as do his colleagues who specialise in the treatment of ADD.  Dr Tym agreed that he thought Mr Dunstan very depressed when he first saw him on 17 July 1991.  However, he said that people with ADD can become profoundly depressed and he has changed his view of the correct diagnosis for Mr Dunstan’s condition since first seeing him in 1991.  He said it is a common mistake that a depressed mood is misdiagnosed as a depressive disorder. 

7. Dr Rose has prepared two reports in relation to these proceedings, dated 7 July 1999 and 22 March 2010.  In his first report, Dr Rose diagnosed Mr Dunstan as suffering from a chronic Major Depression according to the diagnostic criteria in DSM IV, for which he will continue to need treatment indefinitely.  He said Mr Dunstan “is unable to perform any duties whatsoever” and “has absolutely no fitness for per-injury occupation or duties”.  He could not be certain that Mr Dunstan suffers from a personality disorder, but “[h]is personality certainly has borderline narcissistic and paranoid features, as well as obsessional features”, stemming from “his genetic endowment and from his very difficult emotionally deprived childhood”.  Dr Rose said he did not believe Mr Dunstan’s employment made a material contribution to his condition.  Rather, it was the result of his relationship with Ms X. 

8. In Dr Rose’s second report dated 22 March 2010, he was asked to comment on Dr Tym’s reports of 4 February 2010 and 11 March 2010.  Dr Rose expressed surprise that Dr Tym was “reluctant to diagnose any axis 1 psychiatric illness despite the fact that Mr Dunstan has had occasional suicidal ideation and that in the past he has attempted serious, dangerous self-harm”.  Dr Rose said he could find no evidence of ADD, but suggested that rather than having ADD, Mr Dunstan’s personality “exhibits paranoid and obsessional traits”. 

9. In oral evidence, Dr Rose acknowledged that Mr Dunstan’s involvement with Ms X and how it affected his life, his family and his work, had a devastating effect on him.  He said he was not aware of Parnate being used to treat ADD.  To his knowledge it is used to treat depression.  Mr Dunstan’s history of treatment with Parnate reinforces a diagnosis of chronic Major Depression. 

10. Dr Veness said his reports were prepared in relation to the criminal proceedings involving Mr Dunstan.  He saw Mr Dunstan on more than 30 occasions and prepared reports dated 8 January 1999, 22 June 1999, 16 July 1999, 5 August 1999, 29 February 2000 and 20 September 2000.  In the first of these reports, Dr Veness diagnosed Mr Dunstan as suffering from a Major Depressive Illness shortly after he was apprehended.  He was treated appropriately and rapidly recovered with the anti-depressant drug Parnate.  In his report dated 20 September 2000, Dr Veness said Mr Dunstan’s depression, “though precipitated by external events, is a biological illness which responds very well to the drug Parnate”. 

11. In oral evidence, Dr Veness said that there are obessional traits to Mr Dunstan’s personality but he does not have a Paranoid Personality Disorder according with the criteria in DSM IV.  He does, however, have a Major Depressive Disorder conforming with the criteria in DSM IV.  Recent studies show that about 30% of those who suffer from this disorder have a genetic propensity, while for 70% the disorder is exogenous.  Dr Veness said Mr Dunstan has a strong family history of mental illness and probably a genetic propensity, and the events of 1991 led to a major depression that became chronic.  (The Tribunal notes that in his report dated 7 July 2009, Dr Rose recorded that both Mr Dunstan’s paternal grandparents suicided and that his oldest daughter, now aged 30, suffers from bipolar disorder.)  Dr Veness considered it unlikely that Mr Dunstan has an ADD type brain.  He is aware that Parnate has been used to treat ADD but has no special knowledge of this. 

Discussion

Does Mr Dunstan suffer from an ‘ailment’?

1. The Tribunal notes that when Dr Tym first saw Mr Dunstan he described him as being depressed.  In a Workers Compensation Medical Certificate completed by Dr Tym on 16 May 1994, he described Mr Dunstan as suffering from “exacerbation of recurrent depressive disorder” and in another Certificate completed on 23 January 1996, from “exacerbation of mental disorder (depression/anxiety)”.  Even in a relatively recent medical certificate (30 October 2008) completed for Centrelink, Dr Tym diagnosed Mr Dunstan’s condition as “Major depressive disorder with Anxiety” as well as ADD, referring to the symptoms of the major depressive disorder as “major depression not responding to treatment, suicidal ideation”.  The Tribunal notes that Dr Rose diagnosed Mr Dunstan as suffering from a chronic “Major Depression” and Dr Veness diagnosed Mr Dunstan as having a “Major Depressive Disorder”, both referring to the diagnostic criteria in DSM IV. 

2. The Tribunal prefers the evidence of Dr Rose and Dr Veness.  The Tribunal did not find convincing Dr Tym’s evidence that Mr Dunstan suffers from an ADD type brain, particularly since Dr Tym’s diagnosis did not conform with the diagnostic criteria for such a condition in DSM IV.  Moreover, Dr Tym had recognised from his first treating Mr Dunstan that he suffers from symptoms of depression for which he has prescribed Parnate, a drug associated with the treatment of depression.  Parnate has proved effective in treating Mr Dunstan’s symptoms for many years, as Mr Dunstan stated during the course of the hearing.  The Tribunal is therefore satisfied that Mr Dunstan suffers from chronic major depression, which is an ‘ailment’ in terms of the definition of disease in s 4(1) of the Act in effect at the relevant time.  That Mr Dunstan suffers from such an ailment is not disputed by Comcare.

When was the clinical onset?

1. The Tribunal notes Mr Dunstan’s evidence of there being a family history of mental illness, referred to by Dr Rose and summarised above, and of Dr Veness’s evidence that recent studies show that about 30% of those who suffer from major depression have a genetic predisposition.  Mr Dunstan’s evidence is that as an adolescent in 1970-1972, he recalls experiencing “some symptoms like those of depression for short periods but did not need treatment and was not diagnosed as suffering from depression or any other mental illness at any time prior to 1991”.  The Tribunal is therefore satisfied that the clinical onset of Mr Dunstan’s depression occurred in 1991 when he was first treated for this.

2. The Tribunal notes the evidence does not support a finding that Mr Dunstan suffers from a Paranoid Personality Disorder.  There is clear evidence of his having obsessional traits, which both Dr Rose and Dr Veness recognised and which Mr Dunstan now accepts.  However, in the Tribunal’s view, nothing turns on this factor - it is Mr Dunstan’s suffering from depression that appears to be the relevant matter in terms of his incapacity to work. 

Did Mr Dunstan’s employment contribute to the ailment in a material degree?

1. Having found that the clinical onset of Mr Dunstan’s major depression was in 1991, the Tribunal must determine whether his employment contributed to that ‘ailment’ in a material degree.  If it did so contribute, the ailment will fall within the definition of a ‘disease’ in s 4(1) of the Act.  The Tribunal finds that the clinical onset of Mr Dunstan’s depression in 1991 was associated with his relationship with Ms X.  Mr Dunstan first met Ms X in August 1982 while both were working at the Department of Housing and Construction.  Mr Dunstan’s evidence is that Ms X’s “escalating and obsessive pattern of contact with him” commenced in about March 1986 when she transferred to the Department of Administrative Services and continued after Mr Dunstan transferred to the ATO in about February 1987. 

2. At the time Ms X transferred to the Australian Bureau of Statistics in Belconnen in March 1989, Mr Dunstan also commenced some part-time teaching for a computer programming course at Belconnen TAFE.  Ms X would come to the TAFE car park to meet Mr Dunstan and made various demands of Mr Dunstan, including sexual stimulation, threatening to tell his wife if he did not comply.  About a month after Ms X transferred to the ATO in about April 1990, she was assigned to work under Mr Dunstan’s supervision.  Mr Dunstan’s evidence is that they would often have lunch together and would sometimes engage in sexual stimulation in Mr Dunstan’s car.  They first had sexual intercourse in December 1990.  Mr Dunstan’s evidence is that during 1990, Ms X’s frequent hostility towards him came in unpredictable random cycles and that his emotions became “increasingly unstable and dependent upon Ms X’s”.  Nevertheless, they also had periods of productive collaboration, and Mr Dunstan states that in February and March 1991, they designed an innovative program for which they received a letter of appreciation. 

3. Mr Dunstan’s evidence is that from April to the end of October 1991, Ms X’s angry, jealous demands continued, but her behaviour towards him became more sexually provocative.  The second occasion on which they had sexual intercourse was in April 1991.  On 11 July 1991, Mr Dunstan consulted his general practitioner, Dr Garrett, who referred him to Dr Tym describing Mr Dunstan as being “profoundly depressed”.  As stated above, in the Tribunal’s view, this marked the clinical onset of Mr Dunstan’s depression.

4. Comcare submits that it is not enough for the person’s employment to be the setting in which the development of the ailment or its aggravation takes place.  The contribution from the person’s employment must be substantial or considerable: Comcare v Sahu-Khan [2007] FCA 15, at [15]. Mr Dunstan contends that the ATO was sufficiently informed of his psychological ailments and pre-dispositions that damage from the conditions of his employment was foreseeable.

5. In the Tribunal’s view, the ATO did not become aware of Mr Dunstan’s personal relationship with Ms X until about mid-1990 when Ms Hand told Mr Dunstan’s supervisor, Mr Bartley, of the jokes circulating about this.  There is no evidence that the ATO was aware of what Mr Dunstan describes as “his psychological ailments and pre-dispositions” until he took sick leave from 11 to 16 July 1991, the first period in respect of which he seeks incapacity payments. 

6. The Tribunal finds that the relationship between Mr Dunstan and Ms X developed outside Mr Dunstan’s work environment in the ATO and was established well before Ms X transferred to the ATO in about April 1990.  The relationship appears to have intensified in the period 1986 to 1989 described above.  In the period between March and December 1989, any physical contact took place largely outside the workplace as did many subsequent meetings, including when they had sexual contact in Mr Dunstan’s car or, on three occasions, in hotel rooms.  The harassing telephone calls from Ms X which Mr Dunstan described took place both in the workplace and when Mr Dunstan was at home, and he described how Ms X parked across the road from his house, followed him when he was taking his children to school and drove past his house at weekends.

7. Thus, while their relationship continued to develop after Ms X transferred to the ATO, the Tribunal is not satisfied that Mr Dunstan’s employment was anything more than part of the setting in which this took place and is not satisfied that his employment contributed in a ‘material degree’ to the clinical onset of his ailment.  Mr Dunstan’s depression arose from his relationship with Ms X and not by reason of any aspect of his employment other than their being employed in the same workplace.  Comcare is not, therefore, liable for Mr Dunstan developing this ailment and is not liable for his incapacity for work during the period 11 to 16 July 1991.

Did Mr Dunstan’s employment contribute to the aggravation of his ailment in a material degree?

1. Mr Dunstan’s first claim for compensation identifies a second period of incapacity for work during the period 3 to 10 April 1992.  This was not long after Mr Dunstan stayed with Ms X at a hotel in Sydney on a second occasion, and he initiated counselling for both himself and, on some occasions, for Ms X with Sue Langford of EASACT from 25 March 1992 onwards.  It was also at this time that his wife became aware of Mr Dunstan’s relationship with Ms X.  Presumably, because in October 1986 his wife threatened to leave him if he spoke with Ms X again, his wife’s discovery of the relationship would have caused Mr Dunstan significant stress. 

2. The Tribunal is not satisfied on the evidence before it that Mr Dunstan’s employment contributed in a ‘material degree’ to an aggravation of his ailment in April 1992.  Again, it was his relationship with Ms X which was the cause of the aggravation of Mr Dunstan’s depression, including incidents such as the liaison in Sydney and the stress caused by his wife discovering the relationship.  Comcare is not, therefore, liable for Mr Dunstan’s incapacity for work during the period 3 to 10 April 1992.

3. Mr Dunstan’s second claim for compensation identifies two periods of incapacity: from 16 May to 1 June 1994, and from 1 January 1996 and continuing.  In respect of the first period, we note that Mr Dunstan was at this time pursuing a complaint of sexual harassment in the workplace and had also lodged a personal grievance against Ms X.  Further, following a direction by Mr Seymour that he attend a meeting with him on 21 April 1994, he made a grievance complaint against Mr Seymour for workplace harassment.  While this complaint was later found to be baseless, Mr Dunstan states that these events were the reason for the stress reaction which gave rise to his claim for compensation lodged on 26 May 1994. 

4. Mr Dunstan referred the Tribunal to the decision of Von Dousa J in Wiegand v Comcare Australia [2002] FCA 1464, at [31]:

   31 In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand.  For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.

1. In the Tribunal’s view, Mr Dunstan’s evidence indicates that his perception of these events, which arose out of his employment, contributed to an aggravation of his depression to a material degree.  Thus, the aggravation falls within the definition of disease in s 4(1) of the Act. 

2. Turning to the second period of incapacity, from 1 January 1996 and continuing, the evidence establishes that Mr Dunstan was on long service leave from 31 May 1995, initially until the end of November 1995, but later extended until the end of December 1995, with Mr Dunstan returning to work on 2 January 1996.  During this period, Mr Dunstan’s complaint to the Human Rights and Equal Opportunity Commission of disability discrimination by the ATO was still before the Commission and he was awaiting the outcome of the conflict resolution process facilitated by Mr Price (and also by his colleague Mr G Magdulski) with a view to Mr Dunstan being able to return to work in the DBA subsection.  This process had not yet been completed when, on 16 November 1995, Mr Dunstan wrote to Mr Bartley requesting that he return to the DBA subsection.  

3. Mr Bartley sought to arrange a meeting with Mr Dunstan but Mr Dunstan refused to meet while he was on leave.  In a letter dated 4 December 1995, Mr Dunstan said “the continuing uncertainty over my future at work is distressing to me” and asked for a written response to his request to return to his former position in the DBA subsection.  Mr Bartley replied on 5 December 1995 that there had been no progress overcoming the concerns of others in the DBA subsection about Mr Dunstan returning to work there.  On 21 December 1995, Mr Growder wrote to Mr Dunstan informing him of a new placement in the IT Services Costing Project.

4. By letter dated 11 December 1995, an ATO Personnel Officer informed Mr Dunstan that because two applications for sick leave in March and April 1995 had been submitted without a supporting medical certificate, various deductions were to be made from his salary.  Mr Dunstan was subsequently able to establish that he had submitted supporting medical certificates with his applications for sick leave and that these deductions were in error.  However, he said that the consequence of the deductions was that his wife did not receive child support payments for their children for the Christmas period and had to borrow money as a result.  His attempts to rectify the situation in a telephone call to Mr Bartley on 7 December 1995 were frustrated because, Mr Dunstan states, Mr Bartley sent the additional documentation provided by Mr Dunstan to Mr Seymour rather than to the Personnel section, and when Mr Dunstan phoned Mr Bartley about this again on 14 December 1995 and Mr Bartley sent the forms to the Personnel section, they were not received there until 17 December 1995, too late to rectify the situation before Christmas.  It was not until mid January 1996 that the Personnel section fixed the problem and paid him properly.  All of this caused Mr Dunstan considerable stress.

5. This appears to have been compounded when Mr Dunstan returned to work on 2 January 1996 and found himself placed in an office he thought unpleasant, and in a location removed from his immediate supervisor where he felt isolated.  Moreover, he then spent much of that first day back at work sorting out what he referred to as “the irregularities” in the processing of his leave applications.  His perception was that the ATO were being deliberately provocative and did not want him back at work.  As a result, he was very distressed and went to see his general practitioner who provided him with a medical certificate. 

6. Once again, in the Tribunal’s view, Mr Dunstan’s evidence indicates that his perception of these events, which arose out of his employment, contributed to an aggravation of his depression to a material degree.  Thus, the aggravation falls within the definition of disease in s 4(1) of the Act. 

7. In the period following Mr Dunstan commencing sick leave, there followed further correspondence between him and the ATO over his work placement.  On 4 January 1996, Mr Bartley informed him of the unsuccessful outcome of the attempted conflict resolution process undertaken by Mr Price, and that Mr Dunstan could not return to work in the DBA subsection.  This was the basis of Mr Dunstan’s grievance against Mr Bartley lodged on 25 January 1996. 

8. Mr Dunstan lodged his second claim for compensation on 30 January 1996.  Dr Tym examined Mr Dunstan on 20 February 1996 and, in a report dated 22 February 1996, Dr Tym said Mr Dunstan:

   is currently (20.02.96) incapacitated for work because of the psychological stress (as defined) experienced by him at his most recent workplace because of the implications of this workplace environment – seemingly specifically selected as an isolated office, far away from his colleagues.

9. Over the next few months, Mr Dunstan’s claim against Ms X for victimisation to the ACT Human Rights Office proceeded.  Mr Dunstan was also assessed by Dr John Champion, Psychiatrist, on behalf of Comcare on 15 February 1996.  In a report dated 22 March 1996, Dr Champion said while Mr Dunstan complained of vague symptoms of depression, his examination “revealed no evidence of any current psychiatric disorder”.  However:

   It seems highly probable that Mr Dunstan suffers with a paranoid personality structure which causes problems in his relationship with his employers and also with relationships in his private life. The underlying personality structure is likely to be associated with feelings of anxiety and depression and associated with paranoid misperception from time to time.

10. Between February and April 1996, Mr Growder was involved in discussions with Mr Dunstan over his return to work but there was no resolution.  Mr Dunstan had various ongoing legal proceedings in ensuing months.  On 16 September 1996, Mr Dunstan was examined by Commonwealth Medical Officer, Dr R Feltham, to assess his fitness for work.  Dr Feltham said:

    Mr Dunstan’s depression appears well-controlled on medication.  While he may exhibit certain perfectionist and obsessive character traits which would make him more prone to depressive illness, I could detect no paranoid elements in his discourse.

11. Dr Feltham noted that Mr Dunstan wanted to and was anxious to get back to work and said that Mr Dunstan was fit for work as a Senior Information Technology Officer Grade B and that he should return to work as soon as possible but not before a round table conference is convened with Mr Dunstan.  Dr Feltham said that Mr Dunstan’s work place should be a normal office environment and that it “would not be conducive to his good mental health to have him isolated as the only person working on a particular task”. 

12. In September 1996, Mr Dunstan commenced further legal actions against ATO employees.  In October 1996, his paid leave entitlements were exhausted which he states created stress for him and his ex-wife and children.  Mr Dunstan states that in October 1996, he commenced proceedings in the Australian Industrial Relations Commission alleging wrongful dismissal by the ATO having previously been told by Mr Growder that there was no job available for him.  Eventually, in mid-December 1996, he returned to work as a Senior Information Technology Officer Grade B under the supervision of Mr Growder. 

13. In the Tribunal’s view, Mr Dunstan’s ongoing dispute with the ATO over his employment contributed in a material degree to what appears to have been an ongoing incapacity for work through this period.  While the ATO had discussions with Mr Dunstan about options for his return to work, Mr Dunstan found those options unacceptable (Mansfield J at [175]).  The incapacity resulting from the aggravation of Mr Dunstan’s depression came to an end when he returned to work in December 1996.  The Tribunal concludes that the aggravation of his depression in the period commencing after 2 January 1996 and ending when he returned to work in December 1996, when he was no longer incapacitated, falls within the definition of disease in s 4(1) of the Act.

Was the aggravation of Mr Dunstan’s depression in 1994 and 1996 the result of reasonable disciplinary action taken against Mr Dunstan or his failure to obtain a transfer or benefit in connection with his employment?

1. The third issue for the Tribunal in relation to the aggravation of Mr Dunstan’s depression that incapacitated him for work from 16 May to 1 June 1994 and from after January 1996 until his return to work in December 1996, is whether those aggravations were the result of reasonable disciplinary action taken against Mr Dunstan or his failure to obtain a transfer or benefit in connection with his employment.  If the answer to this question is ‘yes’, then the aggravations will be excluded from the definition of compensable ‘injury’ in s 4(1) of the Act, thereby absolving Comcare from any liability to Mr Dunstan in respect of that incapacity.

2. In Hart v Comcare [2005] FCAFC 16, at [22], the Full Federal Court held that the exclusionary provision in the definition of ‘injury’ operates where one of the designated matters (for example, failure to obtain a transfer or benefit) made a material contribution to the injury, even if there are other employment-related factors that contributed to the injury in a material degree.

3. First in relation to Mr Dunstan’s incapacity in the period 16 May to 1 June 1994, and the events of that time, Mansfield J, at [106] to [107], states that in April 1994, Mr Seymour needed to speak with Mr Dunstan regarding his returning to work in the DBA subsection and contacted him to arrange a meeting.  Mr Dunstan was strongly opposed to meeting Mr Seymour because he was emotionally distressed at the time and was, therefore, unresponsive.  Mr Seymour therefore directed Mr Dunstan to attend a meeting with him and Mr Dunstan agreed to the meeting “under duress”.  Mr Dunstan subsequently made a complaint of workplace harassment against Mr Seymour which was ultimately found to be baseless.  Then on 3 May 1994, Mr Dunstan attended a meeting with Mr Growder at which Mr Dunstan’s right to return to a position in the DBA subsection was discussed.  Mr Dunstan states that these events were the reason for the stress reaction he suffered which gave rise to the second claim for compensation lodged on 26 May 1994.

4. In the Tribunal’s view, these events are covered by the exclusion applicable where an employee fails to obtain a transfer in connection with his employment.  Mr Dunstan was seeking a transfer back to the DBA subsection and whilst in his closing submissions he states that he suffered further stress from a chance encounter with Ms X, he also implicitly acknowledges that events connected with his pursuit of his transfer, contributed to am material degree to his stress reaction.  The aggravation is thereby excluded from the definition of injury in s 4(1) of the Act and is non-compensable. 

5. Second, in relation to Mr Dunstan’s incapacity in the period after January 1996 until his return to work in December 1996, the Tribunal notes that his becoming incapacitated for work after 2 January 1996 followed what appears to have been a rather tortuous conflict resolution process through most of 1995 with a view to resolving differences between Mr Dunstan and other employees in the DBA subsection.  The fact that Mr Dunstan was left in limbo and was not informed about what position he would return to and where he would be located on his return from long service leave until a few days before that leave was due to expire appears to us very unsatisfactory in circumstances where it was known to the ATO that Mr Dunstan had been suffering from depression.  The Tribunal attributes this to a failure of management rather than specifically to a failure to obtain a transfer. 

6. Other relevant factors at this time included errors made by the Personnel section in processing Mr Dunstan’s sick leave applications that led to his salary being reduced before Christmas with the result that his wife did not receive the child support payments for their children and had to borrow money for the Christmas period.  Mr Dunstan said this caused him considerable stress.  Then when he returned to work on 2 January 1996, not only did he discover the mistakes made by the Personnel section in processing his leave applications, he also found himself located in what he clearly regarded as a makeshift office, located away and isolated from his direct supervisor.  It was as a result of these events that Mr Dunstan’s depression became aggravated so to render him incapacitated for work.

7. Again, given the ATO’s knowledge of Mr Dunstan’s chronic depressive illness, the way in which these matters were handled appears was, in our view, less than satisfactory and contributed in a material degree to the aggravation of his depression.  This was not in itself a result of a failure to obtain a transfer or benefit but rather the result of a failure of management, albeit in difficult circumstances.  Thus, we conclude that the exclusion in the s 4(1) definition of ‘injury’ does not apply in respect of the commencement of this period of incapacity. 

8. With regard to the ongoing period of incapacity beyond January 1996, Dr Tym’s report of 22 February 1996 supports a finding that Mr Dunstan’s incapacity at that time was still as a result of the events surrounding his return to work on 2 January 1996.  In the light of the other medical evidence, the Tribunal does not find Dr Champion’s opinion that Mr Dunstan suffers from a paranoid personality disorder (report dated 22 March 1996, referred to above) convincing, noting that at the time Dr Champion examined Mr Dunstan and found no evidence of any current psychiatric disorder, Mr Dunstan was taking Parnate and may not, therefore, have been experiencing symptoms associated with depression.  

9. We prefer the diagnoses of Dr Veness and Dr Rose that Mr Dunstan suffers from chronic depression.  For most of the remainder of 1996, until Mr Dunstan returned to work in December 1996, he states that he experienced stress as a result of his various legal proceedings, in particular the proceedings before the Tribunal in relation to his first compensation claim and in relation to his complaint of discrimination against the ATO which was referred to the Human Rights and Equal Opportunity Commission for hearing.  There also appear to have been ongoing discussions about Mr Dunstan’s returning to work with his being assessed by Dr Feltham, as stated above.  This period was then followed by the proceedings brought against the ATO by Mr Dunstan in the Industrial Relations Commission in relation to his employment prior to his returning to work. 

10. In the Tribunal’s opinion, these events were primarily concerned with Mr Dunstan returning to work in suitable employment with the ATO rather than specifically being related to a transfer back to the DBA subsection.  Thus, the exclusion in the s 4(1) definition of ‘injury’ does not apply in respect of period of incapacity between January 1996 and Mr Dunstan’s return to work in December 1996. 

11. In conclusion, Comcare is liable to pay compensation to Mr Dunstan in respect of his incapacity from the aggravation of his depression in the period after 2 January 1996 and until he returned to work in December 1996.  It is not clear from the evidence before the Tribunal exactly what that period is, and we note that Mr Dunstan received paid leave until about September 1996.  In our view, therefore, the appropriate outcome in respect of this part of Mr Dunstan’s claim is for us to remit the amount of compensation payable to Mr Dunstan for incapacity payments in this period to Comcare for determination.

12. The Tribunal:

    1. (a)   affirms the decision under review dated 7 June 1995;

    (b) varies the decision under review dated 3 September 1996 by determining that Comcare is liable to pay Mr Dunstan compensation for incapacity for the period commencing after 2 January 1996 when he became incapacitated for work and ending on his return to work in December 1996.

    2.  It is open to the parties to make submissions to the Tribunal in relation to the costs of the proceedings in matter number 1996/449 within 14 days of the publication of these Reasons.  In the absence of any such submissions, the Tribunal orders that the Respondent is to pay the Applicant’s costs in matter number 1996/449 as agreed or assessed. 

I certify that the 153 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President and Dr I Alexander, Member

Signed:   ....[sgd]....................................................................
               Associate

Date/s of Hearing:  1-5 February and 17-20 May 2010
Date of Decision:  17 June 2010
Applicant representative:                   Self-represented
Respondent representative:              Mr L Dobelsky, DLA Phillips Fox
Respondent counsel:  Mr G A Stretton