Engelbrecht and BHP Transport and Logistics Pty Limited - [2002] AATA 1127

DECISION AND REASONS FOR DECISION [2002] AATA 1127

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/327

GENERAL ADMINISTRATIVE DIVISION       )
           Re      THEODORE PATRICK ENGELBRECHT
  Applicant
           And    BHP TRANSPORT AND LOGISTICS PTY LIMITED
  Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President) Dr D Weerasooriya (Part-time Member)

Date1 November 2002
PlacePerth

Decision      The applicant is entitled to compensation in respect of a disease which was contributed to by his employment in a material degree and which was not a result of reasonable disciplinary action taken against him by his employer.
  [Sgd Hon C R Wright QC}
  Deputy President
CATCHWORDS
Seafarers' compensation – stress related illness arising from working environment – whether such illness was a result of reasonable disciplinary action.
Seafarers' Rehabilitation and Compensation Act 1992 – s3

REASONS FOR DECISION

1 November 2002 The Hon C R Wright QC., (Deputy President) Dr D Weerasooriya (Part-time Member)
The Claim

The applicant is a 65-year-old ships officer, born on 11 March 1937. He commenced employment with the respondent company in 1989 as a third mate after a varied career, mainly working in the maritime industry. In 1990 he was promoted to second mate and in December 1993 he was promoted to first mate.
On 30 April 2000, the applicant claimed compensation pursuant to the provisions of the Seafarers Rehabilitation and Compensation Act 1992 ("the Act"). The applicant alleged that he was suffering from a psychiatric ailment caused by work stress, which has caused him to become permanently incapacitated for employment. The respondent denied liability alleging that the applicant's condition resulted from justifiable or, more accurately, reasonable disciplinary action taken by the respondent and is consequently not compensable.
The Legislation
Section 3 of the Act defines "ailment" as "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development".   Section 3 also defines "disease" as meaning
"(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."
The extent to which the employee's work or working conditions or environment must be shown to have contributed to the onset of the relevant condition was discussed in Federal Broom Co Pty Ltd v Semlitch (1994) 110 CLR 626: see also University of Tasmania v Cane (1994) 4 Tas Reports 156. Section 3 of the Act also defines "injury" as meaning:
"(a) a disease; 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 anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

The Issues

On the respondent's denial of liability on 15 May 2000, the applicant requested a reconsideration of that determination and when the respondent failed to respond to that request within 60 days a formal claim was lodged with the Administrative Appeals Tribunal pursuant to s79 of the Act. Statements of Facts and Contentions were lodged by the applicant on 4 April 2001 and by the respondent on 19 April 2001.
The respondent's contentions may be summarised as follows:

(a)The applicant has not suffered injury arising out of or in the course of his employment.
(b)If he did suffer injury that condition arose as a result of reasonable disciplinary action taken in connection with his employment.
(c)The applicant has not reasonably required any medical and/or hospital treatment expenses arising out of his claim.

The applicant also alleged generally (both in para. 4 and para.6) that the respondent is "not liable to make payments of compensation to the applicant". In context these last mentioned denials must be taken as relating to the issues of reasonable disciplinary action and the requirement of medical and/or hospital treatment referred to in paragraphs (b) and (c) above. We make these points at an early stage of our decision because the respondent attempted to broaden its defence to encompass the allegation that the applicant had caused his psychiatric condition by his own "serious and wilful misconduct", which pursuant to s26(3) of the Act would disentitle him to recover compensation.
The hearing of the applicant's claim commenced in Perth, Western Australia on 16 October 2001, where it continued on 17 October 2001. The hearing was then adjourned and resumed in Melbourne, Victoria on 18 February 2002. It continued there on 19, 20 and 21 February 2002. It was adjourned sine die on 21 February as documents being called for by counsel for the applicant could not be produced by the respondent's witness. A prolonged search for these documents overnight on 20 February 2002 and thereafter over a number of weeks proved fruitless, and after two further telephone directions hearings necessitated by the continued non production of these documents, the hearing of the claim finally resumed by way of videolink on 21 August 2002 when Captain Crawford, the witness who was giving evidence on 21 February concluded his testimony and counsel for each party presented his final address. The hearing on that day ran from 11.00 am (EST) to 4.20 pm. (EST). At no stage of the proceedings until about 20 minutes before the hearing concluded on the final day was the issue of "serious and wilful misconduct" mentioned in any way, shape or form.
It had not been mentioned by either counsel in their opening addresses to the Tribunal. It had not been pleaded. The case had run from its inception until the last day, a period of over 10 months, without the slightest hint or whisper that s26(3) of the Act may be raised.
In our opinion the issue cannot now be entertained without the risk of grave injustice to the applicant. The risk could not in our opinion be catered for or reduced by some cost penalty being imposed against the respondent. The whole case may need to be re-opened and new evidentiary and legal issues raised.
It was made very plain to the Tribunal from the outset that its decision was required essentially to resolve the issue as to whether or not the applicant's condition arose from "reasonable disciplinary action" taken by the respondent. The Tribunal was clearly informed that no assessment of the applicant's monetary entitlement was currently in issue. The core issue was the reasonable disciplinary action issue. No application was made to amend the respondent's Statement of Facts and Contentions to raise any other issue. In our opinion the serious and wilful misconduct issue is not properly before us and we decline to consider it in the context of these proceedings.
The Applicant's employment – (a) The Iron Newcastle
Work assessments made in respect of the applicant's efficiency and conduct were uniformly favourable until 1999 when the applicant was engaged as first mate on the respondent's cargo ship, "Iron Newcastle" on a swing of about 2 months duration involving a journey carrying, in the first instance, coal, from Newcastle in Australia to Oita, Japan, then to Singapore and Port Hedland in Western Australia. The Master of the ship was Captain Don Wilson who had sailed with the applicant on a number of previous swings. The second mate was Mr Bowtell-Harris. The third mate, was a 23-year-old female officer, Saffron Brewis. Ms Brewis was well qualified academically and had accrued a total of about 18 months sea time before joining the Iron Newcastle. However for a period of about 15 months immediately before commencing her time as third mate on the Iron Newcastle she had been engaged in servicing computer systems on the respondent's ships whilst awaiting work as a ships officer. The applicant claimed in his evidence that she was to some extent lazy and out of touch with her responsibilities as third mate on board the Iron Newcastle. Ms Brewis on the other hand claimed that she was completely competent and, in fact asserted that the applicant himself was lazy and incompetent. In her written statement to the Tribunal she went so far as to say "I had no professional respect for Englebrecht and in my mind believed him to be incompetent in some aspects of his position as mate" – strong views for a novice officer no matter how well trained.
The applicant, according to the evidence of Captain Wilson was a capable officer, but he "tended to be a bit of a bully". He was, and is, also grossly overweight and was described by one of the doctors who gave evidence as "morbidly obese". No doubt in physical terms alone he would present a fairly forbidding aspect to a young officer. It is also clear enough that his obesity made it difficult, if not impossible, to carry out some of his duties such as tank inspections, and this may have led to or contributed to her conclusion as to his laziness and incompetence.
We have been left with the clear impression that the respondent company has been anxious to introduce female personnel to its working ships. Its personnel officer, Maria Robbins (Senior Human Resources Consultant) says that this has been BHP policy for about 5 years. Laudable as this policy may be it is pretty obvious that it has created some attitudinal difficulties for some seafarers who have spent the greater part of their lives on "all-male-crewed" vessels.
The applicant claims that he was willing to give assistance and encouragement to Ms Brewis, but agreed that he came to regard her as a "know all" or a "smart arse" as the voyage progressed. Ms Brewis claimed the applicant referred to her in disparaging terms in the hearing of the crew and was frequently loudly critical of her performance. Several illustrations of incidents giving rise to personality clashes between them were given in evidence. Ms Brewis' version of events was to some extent confirmed by the evidence of Brent Warhurst, a trainee deck officer who was also on board the Iron Newcastle at the relevant time. Ms Brewis also complained about the attitude of the second mate, Bowtell Harris, but said that his conduct did not cause the same anger, irritation and frustration which was engendered by the applicant's dealings with her. It was clear from Ms Brewis' presentation in the witness box that she still feels deeply hurt by and resentful of what she regards as the applicant's unfair treatment of her during the voyage. It is also clear that she is highly intelligent and confident in her own abilities and would not suffer fools gladly. We are left in little doubt that she was emotionally labile during the voyage, and that to some extent this was probably attributable to relationship difficulties she was having with her boyfriend at the time. We are also far from satisfied that her disharmonious relationship with Bowtell Harris played no significant part in the build up of extreme tension which occurred, both before and at Port Hedland where events came to a head.
Evidence was given that whilst the Iron Newcastle was at Port Hedland, there was a cyclone alert which made it necessary for the ship to put to sea to ride out the storm.    The ship was at sea for nearly 1½ days in the big seas generated by a Force 5 cyclone.   Captain Wilson described events as follows:
"That was after the cyclone.   How did she "(Brewis)" behave during the cyclone? Did she pull her weight? --- Well, the cyclone – we came out of Port Hedland.   The water was quite shallow, so with the wind coming up so strong, the seas built up very sharply causing the ship to roll.   Of course we had – I can't remember now, I think it was about 40,000 tonnes or something in the bottom, so she was a like a big mixed jumping bay, very sharp, very jerky motion.
Did the cargo move? --- No. Things moved on the ship that hadn't moved in the 15 years the ship had been running.
It was pretty wild? --- It was wild.    People were sliding.   The deck took a slide right across the wheelhouse.   I was standing in the middle where you don't get as much, and I hear them talking; look at him, he is just standing there, he is not moving.   Everybody else was sliding around, there were books and papers and stuff going everywhere.   And of course it went on all night.   It started to abate around midnight, I would say, and we turned around and headed back towards Port Hedland and anchored again outside Port Hedland until the port reopened, and then re-berthed in the early afternoon, and resumed loading.
THE D PRESIDENT:   What was the force of the cyclone 1, 2, 3, 4, 5, can you --- ? --It was a 5.
A 5? --- Yes.
MR WALLACE:   That is pretty well as big as they get, isn't it? --- Yes, it is as big as they get.
And you, on entering back into port, had no concerns about the behaviour of any of the ship's officers, including Ms Brewis? --- No.   it had been a very stressful time, because with the wind blowing and that I don't think very many people got any sleep.   I know I didn't.   I was up for about 36 hours straight.
Mr Engelbrecht would have been up a fair bit of that time too, wouldn't he? --- Yes.
Because he would have had an important part to play in all this? --- Yes.   I can't recall exactly, but I think he probably went down about 10 o'clock, 9 or 10 o'clock, and was up again for his watch at 4 o'clock in the morning.   Ms Brewis would have knock off at midnight, and I believe she was called for anchoring around about 6, something around there.
Was that after there was the situation where she came to your cabin? --- No, this was before.
So things got back into port on to a schedule again for loading? --- Yes.
But an event happened at some early hours of the morning where Ms Brewis came to your cabin?--- Yes.
And how would you describe when you saw her?--- Completely and utterly distraught. She was sitting in the middle of my day cabin, screaming "I can't go on. I want to go home".
And you had a long conversation with her?--- Yes, I did.
And she poured her heart out to you basically, didn't she?--- Yes.
And in that conversation she complained about just about everything that had ever troubled her about being at sea, didn't she?--- Yes.
Ms Brewis' cabin was wrecked. She suffered a severe nervous breakdown with blackouts and hysterics. She left the ship at Port Hedland on 10 April 1999. She subsequently recovered her health and returned to sea for one voyage, but was thereafter soon persuaded by her friends and relatives to give up a sea going career. She dismissed suggestions that her anxiety and breakdown were contributed to by the cyclone. She said that during the storm she was "surprisingly calm". Yet it is almost immediately after this dramatic event that her breakdown occurred. We have no doubt it was a significant factor, particularly as there was no direct confrontation between Brewis and the applicant immediately before her emotional collapse.
Whilst on board the Iron Newcastle she made no effort to enlist the aid of Captain Wilson to assist in overcoming her conflict with the applicant or Bowtell Harris. The applicant said in evidence that during the relevant voyage he was feeling stressed and unwell himself and was having difficulty sleeping. We do not understand him to attribute the predominant cause of these problems to his differences with Saffron Brewis, but rather to the general pressures of work responsibilities which had increased to some degree over the years he had been with the respondent. He was also chagrined by the respondent's apparent policy of selling off its ships without regard for the impact of this practice on the crew. Ms Robbins agreed that the sale of ships was "often quite upsetting" and not unnaturally caused disillusionment to crew members.
The Brewis incident was the subject of an internal investigation by Maria Robbins and another employee of the respondent company, Milton Williams who was the Fleet Manager at that time. They spoke to the applicant about the matter on 15 December 1999 after the applicant had completed his next swing as first mate on the Iron Prince.
On 6 March 2000 a letter written by Williams and signed by Robbins was delivered to the applicant. It advised the applicant (inter alia):
"That as discussed with you on 15 December 1999 your performance over a two swing period will be assessed to ascertain whether corrective action needs to be addressed to assist you in your management style".

A note made by the applicant in his diary records his understanding of the discussion of 15 December 1999 referred to in this letter. The note reads:

"Accusation of harassment, excessive workload, constant and sustained criticism."

The applicant said in evidence that Mr Williams and Ms Robbins:

"Read out some specific allegations that Saffron has made and asked me to comment on them."

The applicant was not in fact accused in the letter of any specific breach of company policy or of any particular discriminatory offence in relation to Ms Brewis, but he must have realised his future conduct was under scrutiny. Whether this amounted to "disciplinary action" or "reasonable disciplinary action" may need to be considered later, but, in the context of the present proceedings we think that an initial problem of potentially crucial importance is whether or not the applicant's stress condition which forms the basis of his claim, "resulted" from any remedial or disciplinary action taken by the respondent. In assessing this question, it is necessary for us to consider his conduct subsequent to the Brewis matter and the medical opinions which were expressed both in written exhibits and oral evidence during the hearing. It is also necessary to evaluate the applicant's own evidence, particularly as his credibility was seriously damaged as a result of his cross-examination as to the contents of his diary recording certain aspects of a voyage that he made on the Iron Whyalla in February/March 2000.
(b) "The Iron Price" and "the Iron Whyalla"
Before dealing with the Iron Whyalla events it should be recorded that between October and December 1999, the applicant was the first mate on the Iron Prince and came under criticism by a prospective buyer who inspected the vessel. It was alleged that the applicant had been unhelpful and this criticism seems to have been engendered by the applicant swearing at the complainant whom he discovered walking about unescorted in a potentially dangerous area of the ship unescorted. There was a plausibility about the applicant's evidence regarding this event which, in the absence of contradiction by other witnesses, disposes us to accept what he says. In any event the Iron Prince incident do not appear to have formed the basis for any specific disciplinary action or charge against the applicant by the respondent, although it was referred to as "behaviour noted on the `Iron Prince'" in a document dated 17 April 2000 and titled "Performance Criteria" which was handed to the applicant by the Acting Fleet Manager, Euan Crawford on that date. Also at that time Captain Crawford handed the applicant a letter in the following terms:
"I refer to the investigation that was conducted on the Iron Whyalla by Maria Robbins and I [sic] on 27 and 28 March 2000.
"As a result of the thorough investigation that we made in accordance with BHP policy, we make the following findings and actions:

We find that you unfairly treated the Second Mate, Jerson Moniz, in particular by requiring him to conduct the safety drill in contravention to the Masters orders; in general terms in rostering of shifts and workload and the conduct of work and by inciting the MUA delegates to act in a manner prejudicially against him.
We find no specific instances in this case that you discriminated against the second mate under the terms of BHP policy and the discrimination legislation.
We do however find that the pattern of your behaviour on this ship and the claims made against you by Third Mate Saffron Brewis on the Iron Newcastle are sufficiently similar to enable us to conclude that you have acted in a manner that contravenes the discrimination legislation. Specifically, when the two matters are connected, you have acted with prejudice against Saffron Brewis on the grounds of gender and against Jerson Moniz on the grounds of race.
In addition, we find that your performance generally as First Mate is not up to standard. We find that you deliberately contravened the orders of the Masters and put the safety of the ship in question over the safety drill matter.
We find that you have been engaged in a serious breach of the BHP harassment guidelines and as a result we have grounds for your dismissal.
The outcome we apply is as follows:
We have ensured your safety and fitness for duty by paying you off the ship under S132 and providing you with follow up calls to our psychologist.
We are demoting you to Second Mate, never to be promoted to First Mate.
You will be required to meet minimum performance standards outlined in the attached document. This document comprises a first and final warning. Any breach of the attached performance standards will result in immediate dismissal.
You will be performance assessed for 2 swings. Any further evidence of behaviour similar to that of the Iron Newcastle incident of the Iron Whyalla incident or any reference to these confidential matters will result in instant dismissal.
We hope that you understand the seriousness of the matters before you and act in a manner appropriate to a BHP employee in the future."

To explain the terms of this document as they relate to the allegations concerning Second Mate Jerson Moniz, it is necessary to return to the chronology of events following the applicant's swing on the Iron Prince.
On 8 February 2000, the applicant drove by hire car from Sydney Airport to Port Kembla to join the Iron Whyalla, an ore carrying ship under the control of Captain Cecil Cuthbertson. During the journey from the airport the applicant was accompanied by Jerson Moniz, a seaman of Indian ethnicity who was to serve on the Iron Whyalla as Second Mate. That the relationship did not get away to a good start is evidenced by the applicant's diary entry on 8 February 2000.
The applicant kept a private diary, which he kept in a drawer on the bridge of the Iron Whyalla. This diary was of some significance in the context of this case for three reasons. In the first place it contained entries relating to Jerson Moniz. The applicant's diary entry for 8 February 2000 contained an entry "2/mate not much help as a navigator" – referring to Moniz's lack of assistance in getting to Port Kembla – it plainly did not refer to his capacities as a navigator of a ship at sea. The diary also contained subsequent entries somewhat more disparaging of the second mate's capabilities. For example, on 9 February reference is made to the second mate's reluctance to assist in taking a set of drafts. The entry reads in part: "Inclined to be lazy and complain about everyone and everything". The second mate discovered this diary a few days later and photocopied entries in it which related to him. However in doing so, a piece of paper jammed in the photocopier and when this came to the applicant's attention he realised that the diary had been inspected and copied by Moniz. Naturally enough the applicant was angered by this, not only because it was a private entry not intended for use by anyone but the applicant, but also because Moniz's explanation as to how he came to be aware of the diary and its contents was in the applicant's opinion, and also in ours, patently absurd. Moniz was not called to give evidence during the hearing so our capacity to judge his character and conduct is limited by what we have heard from other witnesses. It seems clear enough to us that he was very sensitive, in fact over sensitive, as to his Indian ethnicity and he tended to regard criticism of any kind as involving racial overtones. Oddly enough Ms Robbin seemed to regard the applicant's efforts to involve the first engineer, Mr Mascrenhas, also of Indian origin, in brokering a peaceful resolution of his differences with Moniz during the voyage, as confirmatory of "bias based on race" by the applicant. We cannot accept this proposition (see Exhibit R13, page 5). It is, to us, rather an indication that the applicant's attitude to Moniz was not grounded in vindictiveness. However the point we are making is that the applicant's diary was initially a clear cause of the mutual dislike which developed between the applicant and Moniz during the voyage.
The diary's secondary significance lay with the way it was used by the respondent's counsel to throw considerable doubt on the applicant's veracity as a witness. It became very plain to us as the applicant was asked to explain how and when he made several entries in the diary, that his claim that they had been made very close to the times of the recorded events were untrue. Why he should have kept up this pretence in the face of its manifest absurdity is somewhat puzzling because the diary was not produced in evidence as a virtually contemporaneous record by counsel for the applicant. Such documents often have a great deal of evidentiary value and if produced in this way without challenge as to authenticity the diary would undoubtedly have been of considerable evidentiary assistance. This is the third aspect of the diary entries which we think should be noted i.e. that although the applicant manifestly told untruths as to how and when some of the entries were made he did not, in the presentation of his case seek to put the diary forward as an authentic contemporaneous record.
Soon after the tensions developed between the applicant and Moniz arising from the entries in the diary, further problems were experienced because of the insistence by members of the ship's Safety Committee that the second made was required to participate in enhanced safety drills. This was a contentious issue because such participation would have necessitated the second mate breaking his sleep only 3 hours after finishing a watch. On 28 February 2000 new watch arrangements were organised with a view to avoiding disturbances to the second mate's rest. These arrangements were recorded by the Master, Captain Cuthbertson, in a minute, which was included in the evidence as T3. It was thought by Captain Cuthbertson that this had resolved the issue, but later events showed that this was not the case. In fairness to all concerned we should record that there is a substantial ambiguity in the minutes, but this does not explain the applicant's later attempt to manipulate the drill times to the disadvantage of Moniz. It is unnecessary to discuss the subsequent chronology of events in detail, but it is apparent that the applicant (who was also a member of the Safety Committee) used his influence over other members of the Committee, including industrial ratings, to undermine the new arrangements and press for the resumption of enhanced safety drills at times which were likely to impact upon the time available to the second mate for rest.
There were also other frictions, which developed between the applicant and Moniz. The applicant believed and still believes that Captain Cuthbertson was taking the side of Moniz in these matters, although our own assessment is that the Master was trying to deal with the growing relationship difficulties between the two men in an even handed manner. In retrospect it may be concluded that the problem could have been avoided, ameliorated or resolved if the Master had taken a more active role in trying to resolve the problems at sea or by using his wide ranging disciplinary powers to impose sanctions against one or other or both of them. He did keep a fairly comprehensive record of relevant events and advised head office of his concerns, but he decided to leave any action to the management team to deal with after the conclusion of the Iron Whyalla's voyage. Looking dispassionately at his notes and evidence, it is no easy task to assign particular blame for the deteriorating relationship to one man or the other, although we are satisfied that the initial ill-feeling generated by the diary incident was brought about by quite unjustified snooping by Moniz. It seems to us that both the applicant and Moniz are deserving of censure to some degree for subsequent developments, or rather, would be so deserving if it were not obvious that each of them was undergoing some form of quite severe stress disorder verging on paranoia by the end of the voyage. This is clear enough from Captain Cuthbertson's notes prepared on 16 March 2000 addressed to Maria Robbins (T4) see for example at page 10:
"Since first incidence [sic] I have not heard anything on the above matter from Mr Engelbrecht. He has gone out of his way to be obliging in his dealings with me although he does exhibit signs of stress". (Our emphasis)
In another of the Master's notes (T5 @ p.14) the following appears:
"From about this point" (a discussion as to the timing of the safety drills which occurred on 19th March) "Mr Engelbrecht's emotional state deteriorated.   Around about the 22nd of March I asked him to counter sign the OLB but he was unable to do so.   He was sitting in chair in my office and was close to tears I offered him the comfort that in a few days time it would all come to a conclusion and be over with.
The next day on the bridge he appeared normal and I asked him how he was and he said OK.   When ever on the bridge I endeavoured to make conversation but it was difficult to get past beyond small shipboard matters and into any social conversation.
I asked the third mate to keep his eye on the Mates emotional state and tell me if he detected any change for the worse and if he would make an effort to treat him kindly.
When next on the bridge I asked the Mate if he would sign the OLB and opened it to the appropriate page.   He started to do so using his left hand to steady his right but after signing twice he said could not go on, would I leave the book there and he would get back to it later.
He has a cadet on watch with him who will complete his cadetship in the next few weeks he has been asked to keep the mate under observation.
I have suggested to the mate that I would be willing to do his watch for him but he said that he prefers to do it himself as I it keeps him from thinking.
The day room in my accommodation has 2 large windows and it is possible, if the lights are extinguished in that room to sit in front of this window and watch the ocean and coast lines ahead i.e. from this vantage point the vessels progress and what is happening around can be observed.
On the afternoon of the 25th of March I spoke to Chief engineer and reminded him that the day work and Safety rounds etc started at 0800 with no excuses.   He said that it might have to be later to allow the cook and watchkeeper to have breakfast.   I told him that both the cook and the 4 to 8 watchkeeper had there breakfasts about 0730 and is was to be an 0800 start.
At 0645 I attended the bridge and relived the Mate.   This practice permitted him to spend a short period of time with the works committee previously mentioned and then have his breakfast.
He arrived at this meeting to find that the Chief engineer had replaced the acting 1st engineer (David Christie)   He had done so because on arrival the following day he would be reverting to his previous position on board the vessel.
He said to the Mate that the Safety rounds were to start at 0800 that day.   The first mate said "It is too soon for me I need time to change.   It will have to be at 0830.
The Chief engineer said that it was to be 0800.   The mate had in his hand a bowl of fruit.   The mate then threw the fruit bowl across the deck office where it shattered.   He said that he mate was so wild he thought he might be attacked.   The mate then went into a shaking state and this condition was such that the Chief engineer said that he feared for the Mates health and came up to the bridge to tell me about it.
While he was telling me about all this the mate arrived looking very distressed and said "I've had this about safety drills" and then started to shake.   He grasped the bridge front dodger for support.   His condition was such that I was seriously concerned for his life and the reaction could provide a stroke.   After 30 seconds or about that interval of time he recovered and I told him to go to his room, rest and I would do the remainder of his watch.
I phone Doctor Sue Austin the Duty medical officer at Balmoral Naval base.   We were unable to meet her prescription of anti depressants.   She suggested Panadeine Forte.   I asked the 3rd mate if he would have a look at the Mate and offer these tablets as the Mate regarded him as his friend.   He reported back that the Mate was settled and was taking tablets of his own.
At this point I phoned you.   You are familiar with the rest of the story.
From this time on the Mate has been under close observation to see that he does not come to harm."
Captain Cuthbertson also observed in oral evidence (Transcript 303) that when the ship arrived in Port Kembla, "Mr Moniz was in a terrible state".
There were other confrontations involving the applicant and Moniz during the voyage, but there is no need to discuss these in detail. It is clear that the smooth running of the ship could have been jeopardised by the frictions between them, but no real safety issues arose in fact.
Was the applicant's condition caused by "reasonable disciplinary action"
In assessing the cause of the applicant's disabling condition, it seems to us to be of fundamental importance to bear in mind the fact that no one, at any stage of the matter, has suggested that the applicant has been dissimulating or feigning illness to gain sympathy or material advantage.
This being so, it appears to us to be necessary to carefully scrutinise the evidence, particularly that of Dr Terace, which has been relied on as supporting the proposition that the applicant's condition resulted from reasonable disciplinary action.
In the absence of evidence suggesting that the applicant has treated his immediate subordinates in a consistently overbearing and harsh manner before his swing on the Iron Newcastle, it would in our opinion be a perfectly legitimate inference that his dealings with Ms Brewis and Mr Moniz manifested a significant and illuminating change in his personality rather than a studied or deliberate decision to cause stress and trauma to his work colleagues for some form of malicious satisfaction. Indeed, reviewing the whole of the evidence of Ms Brewis and Captain Cuthbertson and, for present purposes accepting it completely at face value, it tends to raise a strong inference, at least in our minds, that the applicant was a man developing paranoia, anxiety and depression. Although claiming no expertise in this field of medical diagnosis, this possible inference seems to present itself even more strongly if any credence at all is given to the applicant's claims to have suffered nausea, headaches, vomiting and other symptoms before any mention of possible disciplinary action was made. In discussing these alternatives it should not be thought that we have overlooked the evidence of Captain Wilson who described the applicant as "a bit of a bully". This is what he said:
"So how did that manifest itself? --- Well, he required things to be done his way and if they weren't then he would chastise the people.
THE D PRESIDENT: Sorry, I didn't catch that? --- Chastise the people.
Yes
MR WALLACE: And did he raise his voice when he did that? ---- Sometimes.
Would you just describe him as being a bit on the elderly side and gruff? --- I would say yes.
Do you find yourself that way at times?--- Yes, but I curb it."
In his statement (Exhibit R10) Captain Wilson said:
"I found Engelbrecht to be a competent officer. He knew how to do his job. He tended to be a bit of a bully. He did not treat junior officers and others as equals. There had been complaints by other personnel to me about his attitude as they didn't like being pushed around."

Captain Wilson doesn't appear to have found it necessary to discipline the applicant on any occasion and his evidence is the only direct evidence from any sources as to the applicant's behaviour before the Brewis affair. Captain Wilson also added:

"It seemed Engelbrecht was becoming stressed over the problems which arose with the Third Officer Brewis."

This comment appears to us to corroborate the applicant's evidence that he was experiencing stress and anxiety symptoms during his time on the Iron Newcastle. We might also add that we are a little surprised by the suggestion inherent in Captain Wilson's statement that a First Mate should treat subordinates as "equals". We would have thought that in an hierarchical command structure as exists on a seagoing vessel this carries the concept of equal opportunity too far.

The fact that the applicant first consulted medical practitioners after his discharge from the Iron Whyalla, only shortly before the visit of Captain Crawford and Ms Robbins to reprimand him in Perth on 17 April 2000 cannot in our opinion be taken as evidence that it was only then, when disciplinary conduct was clearly in the air, that he developed the psychiatric illness whatever its correct appellation may be for diagnostic, prognostic or forensic purposes. Nor, in our view, can it be said that aggravation of a pre-existing illness, even severe aggravation, can be relied on as a basis for claiming that any disability now existing "resulted" from reasonable disciplinary action.
It seems to us that the essential issue in these proceedings is not resolved by making a choice between the applicant's evidence and that of the respondent's witnesses even where there is a clear conflict between the two versions, because the cause of the applicant's psychiatric condition is not determined by a black and white choice between truthfulness and reliability on the one hand and untruthfulness and unreliability on the other.
It seems to us that the issues requiring resolution under the s3 definitions of "disease" and "injury" are not essentially dissimilar. We are left in no doubt that the applicant suffers from an "ailment" as defined. Applying the tests discussed in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and University of Tasmania v Cane (1994) 4 Tas R156, we are also satisfied that the applicant's ailment was a "disease". His ailment was, in our opinion, clearly contributed to in a material degree by his employment. We are satisfied that his working conditions together with his duties and responsibilities as second-in-command of an ocean going merchant ship contributed significantly (i.e. in a material degree) to the onset and development of his ailment. To conclude otherwise appears to us to fall into the same error as was identified by Pincus J in O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154 where he said @ 159:
"When the tribunal says that problems were `generated by the respondent himself', that seems to mean, by the condition from which he suffered. It is, of course, not the law that mental conditions caused by employment are compensable only if there is unusual stress or extra stimulus, although no doubt the absence of such stress would make it more difficult to show a causal connection between a mental condition and the employment. Nor is it the law that only neurotic conditions arising in circumstances in which an ordinary man of normal personality would become neurotic (if there are such circumstances) are compensable."

Dr Robert Terace in his written opinion (Exhibit R8) diagnosed the applicant as suffering major depression, which at the time of his report (19 August 2000) had resulted in the applicant being "probably totally incapacitated for his usual employment".
In paragraph 2.1 at page 7 of the report Dr Terace said:
"Mr Engelbrecht's psychiatric condition or psychiatric diagnosis (as described in my response to question one) is the product of and caused by the following interacting factors:
2.1.1Inherent personality and constitutional vulnerability (ie personality make-up), interacting with.
2.1.2The disciplinary process. However the reasonableness of this is an industrial and legal matter, which is outside my determination or role.
2.1.3The death of Mr Engelbrecht's closes friend in October 1999.
2.2Therefore, the specific trigger within Mr Engelbrecht [sic] employment is (POINT 2.1.2 ABOVE), which has in itself materially and significantly contributed to the contraction of his psychiatric condition and this appears to be the main employment factor, which has been causal to or contributory to from [sic] his employment to his condition."
The exact nature of the material placed before Dr Terace for the purpose of obtaining his opinion is not immediately clear. On page 1 of his report he says (inter alia):
"I am cognisant of –
1the relevant background and previous verdict, information and circumstances of the current claim as provided.
2.that you have enclosed copies of all medical documents on file for my perusal."
In addition to this he took a history from the applicant. After recounting that the applicant saw Dr Fisher in New South Wales and was placed on leave as of 27 March 2000, he goes on to describe his understanding of the symptoms described by the applicant at that time.
In paragraph 1.1 at page, Dr Terace says:
"In Mr Engelbrecht's own words `The symptoms I had for some period of time (our emphasis – not Dr Terace's) were –
Fatigue
Stress
Depression
Anxiety
Complete emotional instability.'"
Dr Terace then refers to the fact that the applicant was ordered to leave the ship and see a medical practitioner.   Somewhat puzzling he then continues:
"Relevant events immediately preceding Mr Engelbrecht's development of symptoms and his presentation to Dr Fisher ………. (NSW) on 27th March 2000.
1.2      "No I can't think of anything".
(Mr Engelbrecht explained that he was not, at that time) under any particular or formal disciplinary process but explained further –
"But I'd had a conflict with the Master and another officer on the ship and there seemed to be some collusion between the two.   From the day I joined the ship, I seemed to be a target for them."
"None of it's true.   It was all lies and innuendoes."
Dr Terace then proceeds with a lengthy analysis of many relevant factors leading to his ultimate opinion, but in our opinion he quite fails to give any weight to the symptoms being experienced by the applicant before 27 March 2000 which he had noted in paragraph 1.1 on page 2. In our opinion these factors can only be regarded as a clear indication that things were going very wrong for the applicant in terms of his mental health well before the "disciplinary process" kicked in. Dr Terace obviously regarded the meeting and letter of 17 April 2000 as the commencement of the disciplinary process.
In our opinion Dr Terace's opinion as to the causal relationship between that meeting and the applicant's mental state cannot be accepted in the absence of a clear understanding by him of the relationship problems which arose on the Iron Newcastle and the Iron Whyalla, and his failure to take account of the symptoms claimed by the applicant to have been experienced by him before being sent off the Iron Whyalla. This does not mean that we reject the finding that the death of the applicant's friend and his resentment of and reaction to the disciplinary processes of 17 April 2000 had some part to play in the condition of the applicant at the time he saw Dr Terace, but it does mean that we are far from satisfied that these 2 factors superimposed on a vulnerable personality as suggested by Dr Terace in paragraph 2.1 were the only causes or even the major causes of the applicant's psychiatric condition.
It should be noted that Dr Terace did not attend the hearing to listen to the oral evidence given and, so far as we are aware, he was not acquainted with that evidence before giving his own evidence. In our opinion situations such as this, particularly in cases involving psychiatric opinion, can lead to shortcomings and deficiencies in medical testimony.
Dr Peter Shannon in his report of 5 July 2001 (Exhibit A2) and oral evidence demonstrated a much keener awareness of the possibility of a progressive onset of the applicant's condition.    In his cross-examination by Mr Wallace the following passage appears:
"Now in your report you refer to Mr Engelbrecht acknowledging that he lost a work friend who suddenly died in October 1998?--- Yes.
October 1998 is some considerable at least in time, away from these events at work, is it not? --- Yes.
If it was October 1998 it would seem to be 15/16 months away from Mr Engelbrecht first seeking treatment for any anxiety or depression.   Is that right? --- Yes. Yes. Yes.
But what if it was not just the work friend, but his best friend, and he passed away suddenly in October 1999?   That puts a different complexion on it, doesn't it? --- I think – well – I'm not aware of anything happening in 1999, but I think the – I saw the 1998 event as being one of those sort of things that I guess in perhaps lay terms, if you can understand, sensitises the person to troubles further down the track so that there seems to be a cumulative effect of you know one bad event after another."
Dr Shannon added, at p100:
"… in the context of his work mate it was the fact that he was considering his own work stress. He was concerned that he would go the same way as the work mate who had been stressed at work. So there is a difference between that that losing a friend who is not experiencing the same sort of stress."
Both Dr Stephen Hodby and Dr Sid Srna in their reports (A3, A5 and A6) also show an awareness of the comparatively gradual onset of the applicant's disturbed mental state, but even so, their history taking appears to have been limited to the events on the Iron Whyalla and their immediate sequelae, although Dr Srna was aware of the detailed history of the applicant taken by Ms Nicole Wimmer, a rehabilitation consultant which was reproduced in her letter to the respondent dated 7 April 2000. Dr Srna regarded this history as consistent with what the applicant had told him. It is plain from this history that the applicant's symptoms were developing well before the 17 April 2000 and, importantly, the applicant did not appear to be aware that his position was under threat up to and including 7 April 2000 notwithstanding the terms of the letter of 6 March 2000.
The medical evidence has provided us with a litany of possible diagnoses of the applicant's condition.
Dr Srna who, it should be noted felt unable to complete his diagnosis unless and until the applicant returned to continue assessment suggested that the most obvious diagnosis on the material available to him on 14 July 2000 was of a man with "Obsessive Compulsive Personality Disorder and paranoid personality traits who has been having gradually increasing difficulties to cope and who eventually developed Adjustment Disorder with depressive mood and impairment of emotion". He suggested differential diagnoses of Delusional Disorder, Depressive Disorder with psychotic decompensation, or Obsessive – Compulsive Disorder.
Dr Shannon was of opinion that the applicant was suffering a "Moderate Depressive Episode associated with a Panic Disorder of Moderate Degree".
Dr Hodby simply referred to the applicant's condition as "work stress". Dr Terace, as already mentioned diagnosed "major depression".
There was also a difference between the doctors as to the extent and likely duration of the applicant's disablement from his psychiatric illness. The preponderance of opinion, which we accept, is that the applicant was, at the time of his respective examinations, totally incapacitated by his condition and that this degree of incapacity would endure for at least 2 years. We do not understand that we are required to express a final opinion as to the degree of permanent impairment suffered by the applicant, no doubt because up to date reports will be necessary to establish these matters.
Finding, as we do, that the applicant's condition is not the result of disciplinary action within the meaning of the Act, it is unnecessary for us to consider the further question whether or not the disciplinary action taken was in fact reasonable, but nonetheless we think it desirable that we should express our views on this matter also.
The reasonable and appropriate method of approach to misconduct resulting from mental disturbance was, in our opinion, correctly identified by Gibson J in Re Medical Act (Supreme Court of Tas. No 37/1966) where he said @ pp3-4:
"But the ultimate criterion of professional misconduct is what a practitioner's brethren of good repute and competency would reasonably regard as such. As ex p.Meehan shows, immoral or unethical conduct is not the only conduct that may deserve the epithet "infamous". But it must be conduct "deserving of the strongest reprobation and indeed so heinous "as to merit, when proved, the extreme professional penalty of striking off", a phrase which I quote from what Lord Davey said for the Privy Council in Felix v General Dental Council (1960) A.C., 704, 720. If a medical practitioner conducts himself in a way that would merit the expression "infamous conduct in a professional respect" in a sane person, and his conduct is attributable to mental disorder, I do not think it can reasonably be the subject of reprobation, or described as heinous. Rather he might be thought to be an object of pity and of certification."
It seems to us that, if conduct deserving prima facie classification as "infamous" or "improper" in respect of medical practice should not be regarded as blameworthy if precipitated by mental disorder, then plainly the applicant's conduct on board the three ships in question in these proceedings being demonstrative of his deteriorating mental condition, as we have found, should not be taken to justify significant disciplinary measures. Rather it should promote a regime of rehabilitative attention.
Counsel for the respondent submitted that the applicant's illness was of sudden onset and was triggered by his realisation that Captain Cuthbertson was aware that he had manipulated crew members to cause trouble for Moniz regarding safety inspections. Having regard to the totality of the evidence we cannot accept this submission. It ignores the considerable evidence suggesting that the applicant's behaviour and, indeed, judgment was gradually declining. It also tends to leave aside the consideration that the applicant's behaviour was never suggested to be a contrived act, put on to dupe others into believing that he had a mental problem which would excuse his bizarre conduct. Finally it leaves out of account the undeniable fact that he was immediately referred to medical practitioners by the respondent's investigative team of Captain Crawford and Ms Robbins who unexpectedly arrived on board the Iron Whyalla at the end of its voyage. The applicant himself was even then expecting to continue with his shipboard duties and re-engagement on another vessel after a break. He was not attempting to hide behind his deteriorating health condition to justify lenient treatment for his misbehaviour as one may have expected him to do if indeed he had realised that his conduct towards Moniz would be likely to invite disciplinary measures.
We are of the opinion that the applicant's condition at the time he first consulted medical and health care personnel was brought on gradually over a period of time by his perception of work problems which were magnified and potentiated by his vulnerable personality and his consequent inability to handle some difficult relationship developments on board ship. In retrospect it may be possible to criticise the management of the respondent for failing to appreciate the possibly explosive situation they were creating by putting Moniz and the applicant together as second mate and first mate respectively on the Iron Whyalla, but it is easy to be wise after the event. Similarly one could make a case for chiding Captain Cuthbertson for not making use of his undoubted disciplinary powers to discipline both officers on board ship. However had he done so, the situation may have become even worse and, on balance, we think he made the right decision to leave it for management staff to attend to at the end of the voyage.
Captain James Francis Euan Crawford, Marine Manager of the respondent company was assisted by Ms Robbins in investigating and assessing the complaints made about the applicant's conduct on the Iron Whyalla. They also considered the behaviour of Moniz.
In assessing the proposed disciplinary action to be taken against the applicant they took account of his difficulties with Ms Brewis on the Iron Newcastle, and his unhelpfulness to prospective buyers of the Iron Prince. They also took account of the respondent company's principles and policies contained in a number of published documents including "BHP Transport, Standards of Conduct for Seagoing Employees". Exhibit R14, Attachment "G", Operating Procedures for Tank Inspection Attachment "C" and Bridge Resource Management Checklist (Attachment "E") and "BRM and Navigational Practice" (Attachment "F"). There were also a number of Vessel Operating Management Manual (VOMM) excerpts attached to Exhibit R14 setting out (inter alia) the respective duties of the Master, First Mate, Second Mate, Third Mate and Integrated Ratings. It may be noted at this point that the absence of VOMM documents allegedly dealing with investigative and disciplinary procedures mandated by the respondent and referred to by Captain Crawford in his evidence brought about the need for the adjournment of the hearing on 21 February 2002. Upon resumption of the hearing in August 2002 these documents were not produced by either party, so our only conclusion can be that there were no recommended or binding procedures specified by the respondent for the guidance of their personnel officers in dealing with alleged disciplinary breaches.
It was submitted by counsel for the applicant that as the only rules governing breaches of discipline appeared to be those set out in paragraphs 3, 4, and 5 of Exhibit R14, Attachment C. These were the only rules which could be said to encompass reasonable disciplinary procedures applicable to seagoing employees whilst at sea.
In general terms these rules allowed for the Master to conduct an investigation of any alleged breaches and to impose such disciplinary sanction as he deemed fit. Any employee so disciplined had a right of appeal to the Fleet Manager.
We cannot accept counsel's submission on this issue. Although Captain Cuthbertson conceded that with hindsight it may have been appropriate to utilize the powers vested in him to discipline both the applicant and Moniz whilst the Iron Whyalla was at sea, it cannot in our opinion be concluded that Captain Crawford was unable to take up the matter after receiving the Mater's report with a view to imposing whatever disciplinary sanction he considered appropriate.
Counsel for the respondent submitted that for the purposes of assessing the existence or non-existence of "reasonable disciplinary action" within the meaning of the "injury" definition in s3 of the Act, attention must be given to the action taken rather than the processes of investigation which led up to that result. Whilst it is clear enough that a distinction will often need to be drawn between steps taken along the way to ascertain where investigation ends and discipline begins, that does not mean that discipline can or should be viewed in isolation. We agree with the views of the Tribunal as expressed in Re Inglis and Comcare Q95/335 (27 August 1997) where it was said (paragraph 24):
"We rule that `reasonable' includes, in addition to the consideration required by the dicta in Webb as adopted in Choo, the additional consideration of whether the disciplinary action was attended by circumstances of fairness".
We do not mean that in all relevant circumstances the employer must show that he conducted an investigation in strict accordance with the "audi alteram partem" rules of natural justice, but if he does not, we think that normally it would have to be shown that such serious and obvious breaches of conduct had occurred as would justify instant dismissal. In the present case the relevant disciplinary procedures were, in our opinion, those taken at the meeting in Perth when Captain Crawford and Ms Robbins notified the applicant in writing of their decision to (inter alia) "demote him to second mate, never to be promoted to first mate". In our opinion the earlier steps taken after and in consequence of the Brewis incidents on the Iron Newcastle lacked the essential characteristics of disciplinary action and were rather to be characterised as steps taken to determine whether or not disciplinary action may be taken. In reaching this conclusion we have taken account of the approach discussed in Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees' v Chenhall (1990) 37 FCR 75 by Cooper J and Re Quarry and Comcare (1997) 47 ALD 113 by Deputy President Blow and Member Shotter.
It was neither pleaded in the respondent's Statement of Facts and Contentions, nor submitted by counsel that the disciplinary process commenced before Captain Cuthbertson's revelation to the applicant on 19th March 2000 that he "understood" what was going on with regard to the ongoing dispute as to safety inspections. Mr Wallace submitted that from that point the applicant started to "decompensate because he had been trying to set Moniz up and had been found out. This was sufficient to justify his demotion".
Without going into the pros and cons of the safety drill and inspection dispute, but otherwise accepting the respondent's submission, it is in our view, nonetheless insufficient to ground a finding that the applicant's reaction was the result of disciplinary action. There had at that stage been no disciplinary action either resolved or implemented. Captain Cuthberston's decision to report the matter to head office (a course which he had by then determined to take, but had not imparted to the applicant) cannot in our opinion be regarded as disciplinary action. When the decision was ultimately taken to demote the applicant and require certain performance standards from him at the meeting in Perth on 17th April, Captain Crawford and Ms Robbins had plainly expended considerable time and effort to find out what the applicant had been up to. The applicant himself had been spoken to about events on the Iron Whyalla, although the details of this conversation and the details of any potential charges or punishment do not appear to have been discussed then. As already mentioned the applicant was, emotionally, in a bad way at that time. It appears therefore that he was not acquainted in advance of the April meeting with the disciplinary sanctions which were being proposed or the specifics of acts of misconduct which were alleged against him. In our opinion, although he may have realised that some disciplinary measures may be taken, he may well have had it in mind that he would be allowed to give details of his side of the story and that specific charges or allegations of bad behaviour would be made known to him before a penalty was determined. In fact neither of these steps was taken and in these circumstances it is difficult, if not impossible to conclude that any psychiatric reaction or deterioration sustained before that time was capable of being attributed to reasonable disciplinary action "taken" against him. In our opinion no such action had been "taken" against him until he was notified of the management decision in Perth on 17 April 2000.

There can be little doubt that, despite some apparently contradictory findings made by the management team of Captain Crawford and Ms Robbins in the letter to the applicant of 17 April 2000 (T18) (we refer to dot point 2 and dot point 3) their findings in relation to the misconduct alleged regarding the safety drill issue on the Iron Whyalla were supported by a good deal of the evidence before them.
Now that we too have heard all the available evidence, it is quite feasible that had we disregarded the medical evidence, we too may have reached the same conclusion that the applicant's misconduct justified dismissal and could not be said to be disproportionate to the offence in question. However, we are concerned that the applicant was given no real chance to defend himself, and was effectively prevented from attempting to refute the allegations made by the embargo upon such conduct referred to in the Performance Criteria T19 – "No discussion or comment is to be entered into with any person with respect to issues relating to Ms Saffron Brewis or Mr Jerson [sic] Moniz".
We are also concerned that it was not recognised by the management team that the applicant was undergoing serious stress anxiety, depression and probably paranoid ideation at the relevant time and that this was a matter of considerable importance in assessing his culpability for the relevant conduct. It is perhaps indicative of this failure to consider the conduct in the light of the applicant's mental condition that the management team also imposed disciplinary sanctions against Moniz who was generally regarded as the "victim" of the safety drill affair, and was essentially characterised as the wronged party. Evidence clearly suggested that Moniz was undergoing a serious stress reaction when he left the ship and was in fact under notice by management even before his posting to the Iron Whyalla on the basis of personality problems with work colleagues on a previous swing or swings. We have already drawn attention to the fact that it has not been suggested that the applicant is now or has ever feigned his symptoms of stress and anxiety to provide a cloak for his acceptable behaviour. As his mental condition was seriously compromised in our opinion before he was subjected to the relevant disciplinary action we cannot view that action as having been "attended by circumstances of fairness", and thus in our view the respondent's reliance on the "reasonable disciplinary action" limb of the s3 "injury" definition cannot be sustained.
In our opinion it has been established that the applicant sustained a compensable injury whilst in the employment of the respondent and is entitled to compensation in accordance with the Act. As previously noted we do not at this stage attempt to assess the degree or permanency of the applicant's relevant incapacity.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President), Dr D Weerasooriya (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing  16, 17 Oct 2001, 18 -21 Feb 2002
  21 August, 26 August 2002.
Date of Decision   1 November 2002
Counsel for the Applicant         Mr Guy Stubbs
Solicitor for the Applicant          Dwyer Durack
Counsel for the Respondent    Mr D Wallace
Solicitor for the Respondent    Henry Davis York Lawyers