Forbes and Comcare - [2001] AATA 527

DECISION AND REASONS FOR DECISION [2001] AATA 527

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/208

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PAMELA ANNE FORBES
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

Date13 June 2001
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the respondent is liable to pay compensation, pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, from 17 December 1997 until 6 October 1999 inclusive.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION – depressive disorder – events at work and after leaving work - whether material contribution – material contribution considered – necessary connection between actual employment and impairment – circumstances of actual employment and after leaving employment considered
Safety Rehabilitation and Compensation Act 1988 ss.4, 14
Re Van Houten and Comcare (AAT 12339, 24 October 1997
Comcare v Mooi (1996) 69 FCR 439
Re Malicki and Comcare [2000] AATA 832
Federal Broom Company Pty Ltd v Semlitch(1964) 110 CLR 626
Re Mills and Australian Postal Corporation (AAT 8300, 12 October 1992)

REASONS FOR DECISION

13 June 2001 Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

This is an application by Ms Pamela Anne Forbes (the applicant) for review of a decision of an Independent Review Officer of the respondent dated 16 April 1999 (T45) which affirmed a decision of a delegate of the respondent dated 20 November 1998 (T30) disallowing the applicant's claim for compensation in respect of "major depressive disorder".
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T45), together with 18 exhibits, 9 lodged by the applicant (Exhibits A1-A9) and 9 lodged by the respondent (Exhibits R1-R9). In addition, the Tribunal heard evidence from the applicant, who also called Dr N. McCleave, Medical Practitioner, Mr D. Sladden, Psychologist, and Ms P. Barrett, Psychologist. The respondent called as witnesses Dr T. Davis, Psychiatrist, as well as Mr K. Schrapel, Ms S. Peisley, Ms R. Bell, Mr J. Mannow, Mr T. O'Riley and Mr B. Aldridge, all of whom have a current or prior working relationship with the Australian Federal Police. The applicant was represented by Mr G. Britton and the respondent was represented by Mr S. Apps, both of counsel.
The issues before the Tribunal are whether or not the applicant's employment contributed to any depressive disorder she may have (or had); and if so, for what period of time is the respondent liable to pay compensation?
history of the application
The applicant joined the Commonwealth Police, later called the Australian Federal Police (AFP) in March 1978. On 25 May 1997 she returned to work following a period of long service leave and initially performed administrative duties before becoming involved in various investigative operations. On 17 December 1997, following an incident at work, the applicant left the workplace, and attended Dr McCleave, her General Practitioner. She was given a medical certificate and has not, in fact, returned to work since that time.
On 8 May 1998 the applicant lodged a claim for compensation in respect of "major depressive disorder (chronic)" (T6) which was disallowed by a delegate of the respondent on 20 November 1998 (T30). On 16 April 1999 an Independent Review Officer affirmed the delegate's decision (T45/145-146). In his reasons for decision, the Independent Review Officer stated (inter alia):
"…
As referred to in the Determination dated 20 November 1998, Dr Davis referred to a number of personality issues which he said had major bearing in this situation. Dr Davis concluded that the employee's condition was a consequence of the interaction of specified work related frustrations and the employee's personality style.
It is considered however that the fact that the employee reacted to work related frustrations and disapproved of management operational decisions, does not necessarily mean that her condition was contributed to in a material degree by her employment. …
…
On the available evidence it appears that the employee's condition arose out of her difficulties in accepting the operational determinations of AFP management. …
… It is considered however that the adverse effect of conflict between management and the employee's defacto husband on the employee was due to the nature of their personal relationship as opposed to the nature and conditions of the employee's own employment. It is considered the difficulties encounted [sic] by the employee's defacto husband do not fall within the definition of the employee's "employment".
Additionally it is considered that even [if] it was established that the employee's employment contributed to [sic] in a material degree to the development of her condition, many of the issues raised by the employee appeared to be failure by her to obtain benefits in connection with her employment, those benefits being authority to continue her investigation despite managements decisions, and possibly failure to obtain a voluntary redundancy, and therefore any condition arising from these issues is excluded from the definition of "injury" contained in the Act pursuant to Section 4(1) of the Act.
…"

applicant's evidence

The applicant was born on 23 September 1956 and joined the AFP in March 1978. Initially she worked at the Adelaide airport, the Family Court and then moved into operations, surveillance and intelligence areas, where she became involved in drug enforcement, intelligence and organised crime.
The applicant told the Tribunal about being heavily involved in an investigation in 1995 and her frustration when it was suddenly ended without reasons being given to her. She stated that she now thinks her superiors deliberately chose not to investigate the particular organised crime ring and considered that she should have been notified as a Federal Agent of the reasons why such a serious investigation would be stopped. She also stated that there was a large drug importation imminent in 1995 and that she had been prevented from working on the taskforce assigned to investigate that matter.
The applicant stated that she went on long service leave because she was frustrated and marginalised at work, and was also having problems with her daughter. She considered that the leave was taken largely due to family reasons, predominantly to spend more time with her children. In May 1997 she returned to work at 30 hours per week and stated that she was given two weeks of filing duties. She told the Tribunal that this was frustrating, as she was an experienced investigator, and she had never known an occasion in the past where an experienced police officer would be asked to do such work.
The applicant then worked briefly in the fraud section, and was promoted to team leader in the surveillance section. She then worked in target development, gathering information to identify targets for investigation. She stated that she loved the work, as her forte was analytical work. She considered that her progress as a police officer and her investigation of crime was impeded by the AFP, but agreed, in cross-examination, that she was made a team leader in relation to particular investigations. She told the Tribunal that the problem she had with the whole job was that no one supported what she was doing, and when her various applications for warrants and intercepts were rejected, her supervisors, and Ms Peisley in particular, refused to talk to her about the difficulties.
In August 1997 the applicant prepared an application for installation of listening devices as part of an ongoing investigation. She stated that she was informed that the Commonwealth Director of Public Prosecutions (DPP) supported her application, but was told by Ms Peisley, the then head of the Committee to which such applications were referred, that her application lacked sufficient information. She stated that having that application rejected by the Committee was hugely distressing. She recalled sighting a letter from Ms Peisley stating that the AFP had diminished resources, and being aware that resources for surveillance, particularly on weekends, were scarce at that time.
The applicant then commenced working in a drug investigation team headed by Mr B. Aldridge. She stated that she had some difficulties with Mr Aldridge, as her background led her to take a much more pro-active approach than he did. She told the Tribunal that just before she commenced with that team, Mr Aldridge walked her around the outside of the work building, and told her that he did not want details of the team's operations passed on to the applicant's defacto partner at the time, Mr J. O'Connell, who was working as a Federal Agent in another team. She told the Tribunal that Mr Aldridge also told her that he did not want her to cause any trouble in his team. She gave evidence that she could not understand why she was being spoken to in that way and that she had never had any complaints about her relationship with Mr O'Connell.
The applicant stated that she had formed an assessment that a drug shipment was imminent in relation to that operation, but her colleagues felt there was insufficient evidence, even though she had pages of supporting documentation and thought that the matter merited further investigation. She told the Tribunal that Mr Aldridge discounted everything she said, citing a lack of corroboration. She stated that he was from the "old school" of intelligence which only involved information gathering, whereas her drug background meant that she knew she had to be flexible and think on her feet.
The applicant stated that she had a number of discussions with her then defacto, Mr O'Connell, about a redundancy package that he had been offered. She felt distressed and probably a bit frustrated at first when he was being offered the package, and disappointed for law enforcement, as Mr O'Connell was a very good officer, but stated that they were able to work through those feelings and see the positive aspect to the offer. She recalled that they may have had a drink shortly prior to his last day at work, and stated that it was not a sombre occasion. She told the Tribunal that they did not see a lot of each other at that time as he was generally grumpy to live with, being a Vietnam veteran. She stated that they only became really distressed when they later found out that various notices relating to Mr O'Connell's redundancy had been altered, and his records of interview had been changed.
She told the Tribunal that on 17 December 1997 the investigation she had been working on was stopped completely. She stated that she had information at that time concerning the arrival of large amounts of cocaine, but that this was ignored, and she was told that the job was ceasing, and she was being moved to the operations section. She recalled being told on 2 and 10 December 1997 that she would be moving sections, and was told by the team leader on 17 December 1997 that since a dispute had arisen as to the progress of the operation, she would be moved from the section.
On 17 December 1997 the applicant stated that she was asked to work on a brief for Mr T. O'Riley. She recalled that Mr O'Riley had been away on a driver training course, and had returned "in a panic" about the brief under his responsibility that had to be before the DPP by a certain date. She agreed that it was an unwritten requirement that everything else sometimes needed to be put on hold to work on a brief, and to her knowledge, she was the only one who was complaining about being pulled off her own job to work on the brief. She stated, however, that it was not an urgent brief and that it was being incorrectly given priority over her importation matter. She further stated that she was not aware how long the brief would take, and noted that an extension of time was apparently granted in any event. She told the Tribunal that she went to Mr O'Riley and told him that the brief was being incorrectly given priority over her matter. She gave evidence that this was about the third time that the valuable investigation she was working on was not being pursued, and she was really upset by this. She considered that she was repeatedly blocked in carrying out that particular investigation, which she considered to be in a start up phase. She gave evidence that she had considered resigning a month prior to 17 December 1997, after again being blocked in the investigation. She further stated that she got so upset because the operation never needed to be shut down, and she would now swear on her life that a large shipment of drugs came into the country in December 1997 about which the AFP was aware, but did nothing to prevent.
The applicant told the Tribunal that after Mr O'Riley told her that she had to work on the brief, she was upset and went outside for a cigarette, but as she was getting increasingly upset, she called Dr McCleave and left work. She stated that she was really worked up and could not even recall how her pushbike got back home. She stated that she "just snapped" and noted that all her papers were still on her desk when she left work. She also stated that it was just a coincidence that 17 December 1997 was Mr O'Connell's last day at work, and that his situation had not even crossed her mind on that day.
The applicant left work and went to see Dr McCleave, who issued a medical certificate. She remained on sick leave for five months, and applied in mid-1998 for compensation at the suggestion of Dr McCleave. She stated that she lived like a "hermit" for the first few months after leaving, and spent quite a lot of time caring for her sick father. Mr O'Connell was travelling quite a bit at that time trying to establish a business.
She attended counselling with various psychologists, which she considered to be useful. She received a letter from the AFP dated 29 September 1999 (Exhibit A9) requiring her attendance at work (Exhibit A9) in the midst of this counselling, and considered that it would have been useful if she had further counselling, and mediation to resolve the industrial differences she had with her employer. She considered that AFP officers have a responsibility where there is a perception of mismanagement to report that, and stated that the grievance she submitted after leaving in December 1997 was part of her duty in that regard. Mediation in relation to those issues would have been useful, in her opinion, to get the parties to a state of common understanding. She gave evidence that she had no contact with the AFP after December 1997, and that they failed to follow up doctor's reports or contact by the welfare officer. She told the Tribunal that Dr McCleave put her on anti-depressants in or around May 1998. She had chosen before then not to take medication, aside from sleeping tablets, as she did not like the connotations associated with being on anti-depressants.
Subsequent to her sick leave, the applicant lived off Mr O'Connell's earnings, and has recently commenced to receive pension benefits as a sole parent. Her 10-year contract with the AFP ceased in August 2000 and the AFP chose not to extend her tenure. She gave evidence that she was told that she was "not the sort of person we want for life tenure" and was also told that it had nothing to do with her sickness. She stated that by June 1999 she considered that she was well enough to make a decision about work, as she was being as positive as she could, exercising and trying meditation techniques. She hoped to continue with the AFP at that time, but considered that the AFP's actions made that impossible. She gave evidence that she explored the option of a redundancy package for herself, but was refused.
The applicant sat adult entry university exams in or about October or November 1999, as she had decided that she needed to do something, or she would "go crazy" obsessing over the problems she was having with the AFP. She commenced a course in 2000, majoring in psychology, with the intention of specialising in forensic psychology. She stated that she was unable to handle a full- time workload of four subjects in 2000, and so dropped to two subjects in second semester due to health problems, particularly with headaches and concentration. She is now studying two subjects externally, with about 4-5 contact hours per week, in addition to essays and assignments.
The applicant stated that she could not return to work as a Federal Agent, as she has had her job taken away from her. She further stated that she would have gone back the day after the events of 17 December 1997 if she medically could have, and would still go back if she was 100% medically fit to do so. She told the Tribunal that "it [the AFP] was my life apart from my kids" and she considered that she has had that bit of her life taken away from her. She agreed that she was a vocal and assertive person who could be head strong in some situations, and that she could be abrasive at times, particularly when she got frustrated with colleagues and management. She considered that she was not necessarily a very good officer, but was very dedicated. She agreed that she had told Dr B. Byok that the system was dishonest and corrupt, and stated that "corrupt" was a bit over the top, as she was upset at that time. She told the Tribunal that in March 1998 she still could not believe that the project had been disallowed, wanted to return to work, but could not return to work with the people who had disallowed the investigation in a system which did not abide by its principles and core values.
dr n. mccleave
Dr McCleave has been a Medical Practitioner since 1970 and has had involvement with both the South Australian and Federal Police since the 1980s. He has been the applicant's General Practitioner since 1987 and prepared three reports in relation to this matter dated 30 June 1998 (T15), 23 January 2000 (Exhibit A3) and 24 July 2000 (Exhibit A4). In his report dated 30 June 1998 he stated (inter alia):
"…
3.On 17th December 1997, Ms. Forbes presented to me upset because she was not allowed by her work superiors to proceed with an investigation that was in its completion stages. Same related to dealings under the Financial Transactions Act which signalled major drug offences.
…
6.        She next developed aspects of a depressive disorder, in particular:
1.        Depressed mood most of day; feelings of sadness.
2.        Diminished interest and pleasure in general daily activities.
3.        Weight loss with no dieting.
4.        Insomnia.
5.        Psychomotor agitation.
6.        Fatigue, loss of energy.
7.        Feelings of worthlessness.
8.        Diminished ability to think and concentrate.
…"
In his report dated 23 January 2000, he stated (inter alia):
"…
2. Ms Forbes, since the previous report has:

Remained upset and sad, plus can now be agitated.
Is pre-occupied with this whole event.
She continues to have a diminished ability to think and concentrate and make decisions for the future. Her mind can feel numbed.
She suffers sensations of vagueness.
She has lost significant weight.
She continues to require medication in the form of sleeping tablets.
3.Ms Forbes' condition has not resolved at all. In fact I consider it has slightly deteriorated."

In oral evidence, in support of his reports, he stated that he noted on 17 December 1997 that the applicant was stressed as a result of having been told to stop working on an operation that was almost complete. He formed the view that workplace problems had contributed to the applicant's stress levels and need for time off work. He did not diagnose a psychiatric illness at that time, and thought that with time off to calm down, things would sort themselves out, and the applicant could return to work. He considered the applicant's depression to have started around 20 April 1998, and that prior notations of the applicant being stressed, meant that there was anxiety and tension present, on the way to forming the depression diagnosis. He first prescribed anti-depressants to the applicant on 20 April 1998, and had given her tranquillisers at a dosage to help her sleep on 19 November 1997 due to problems she was having with her partner's retrenchment.

Dr McCleave considered that the applicant has an obsessive personality and that she would cope with changed routines so long as adequate reasons were given to her. He further considered that her aggressive and obsessive traits were developed through police training and experience. He also considered that as the applicant was trained to be obsessive, such traits can get greater over time, and that is what has happened in this case. He stated that if a person is following a case through and is almost on the brink of a development and the case is suddenly taken away without adequate explanation, then that will significantly affect that person. The applicant had told Dr McCleave that the AFP was dishonest and corrupt, and he considered that this perception of hers might well have been correct at the time, as there is corruption in the police forces in his experience. He also considered that as people tend to exaggerate about such things, the applicant might have meant that just some members of the AFP were corrupt.
Dr McCleave last saw the applicant in December 2000 and stated that she might have possibly returned to work at that time, but, in his opinion, he did not think she was ready. He did not consider it to be the case that the applicant could not return to work because of the accusations she had made about officers after she left the workplace, and had gained the impression that the applicant remained upset and depressed due to the problems in December 1997 which had continued to plague her. He agreed with the assessment of Dr Davis as at the end of 1998 that there were no permanent effects of the applicant's depression and that the prognosis for returning to work was good once the operational matters had been resolved.
mr d. sladden
Mr Sladden has worked as a Psychologist since 1969. He saw the applicant on 21 April 1998 and 5 October 1999 on referral by the AFP, and prepared two reports dated 5 May 1998 and 5 October 1999. In his report dated 5 October 1999 (Exhibit A7) he stated (inter alia):
"…
Currently Ms Forbes is presenting with a number of symptoms related to a depressive disorder. These include feelings of sadness and discouragement about her future as well as self-blame and self-criticism. Also she reported an increase in spontaneous crying and lack of pleasure from many activities she previously enjoyed.
…
Summary
In view of the symptomatology displayed and reported by Ms Forbes, the content of the reports provided, and my own observations during the clinical interview, I would suggest that Ms Forbes meets the diagnostic criteria for the following classification in DSM IV:
296.33 Major Depressive Disorder, Recurrent Severe Without Psychotic Symptoms
…
When last assessed, Ms Forbes was diagnosed with an Adjustment Disorder With Mixed Anxiety and Depressed Mood.
However, there has been a subsequent increase in the severity of depressive symptomatology displayed by Ms Forbes and the diagnosis of Major Depressive Disorder is now more appropriate. Despite an unwillingness to use psychotropic medication, Ms Forbes has recently obtained a prescription for a sedative from her general practitioner because of sleeping difficulties.
As mentioned in the body of the report, Ms Forbes also described difficulties with concentration and irritability. These are impinging on her capacity to lead a productive and fulfilling life.
It is apparent that these symptoms are exacerbated by Ms Forbes uncertainty about her future with the AFP and a resolution of her status in this regard may help her deal with her Depressive Disorder.
I feel that Ms Forbes needs access to ongoing professional assistance to help her to overcome her depressive symptoms and to develop appropriate coping strategies.
…"
In oral evidence in support of his written reports, Mr Sladden stated that he diagnosed the applicant as suffering from an adjustment disorder with anxiety and depressed mood. As at April 1998 he considered the applicant to be conscientious, tenacious and persistent, with possible obsessive personality traits. In October 1999 he considered that the applicant had a major depressive disorder with more severe symptoms, and considered that the applicant's work played some part in her problems.
In cross-examination Mr Sladden stated that there is generally a constellation of reasons as to why people act the way that they do, and considered that the applicant's partner's redundancy and the impression she formed that she was unfairly treated at work continued to affect her. He stated that he gained the impression that the underlying cause of the applicant's depression was the ongoing problems at work as to how she felt that she was being treated, and that this had built up over time and was the precipitating factor in her depression. He considered the problems of the applicant's partner to be a secondary issue. He further considered that whilst Mr O'Connell's problems might have been a factor, the applicant had work related problems which had been building up over time. He agreed that if the applicant had said that the AFP was dishonest and incompetent, those statements could possibly be a good reason not to return to work.
Mr Sladden stated that mediation and counselling would have been of assistance, and that he would generally suggest mediation if he thought that it could resolve the workplace issues. He told the Tribunal that the applicant had said that she still really liked aspects of the AFP work, and thought that whilst mediation was a "longshot", it might have possibly helped to resolve the workplace issues.
ms p. barrett
Ms Barrett has worked as a Psychologist for the past 15 years. She saw the applicant on nine occasions in 1999 on referral through the AFP Employee Assistance Programme. In her report dated 11 October 1999 (Exhibit A8) she stated (inter alia):
"As you are aware I have been seeing Pam since August 1999 for the purpose of assisting her to resolve multiple issues associated with her employment and her long standing absence from work.
On initial presentation Pam indicated an inability to make a decision in relation to her employment. I am aware of the protracted history with this case and of the current status of her application for Workers Compensation. Until recently we were making progress with Pam agreeing to a time line within which she would make a decision to return to work or resign.
Unfortunately this progress now appears to have been halted due to recent events. Pam received a letter signed by Peter Wood that stated she either presents for duty or she will be deemed to have resigned. The tone of this letter was, in my opinion, quite threatening and confrontational. (I have appended a copy of the letter for your information.)
…
I believe that this letter has significantly impacted Pam in quite a negative way and brought to a halt the progress we were making. A very big factor in this case is Pam's ability to trust in the organisation. Pam perceived the commencement of counselling as a very positive step and an indication that the issues in this matter could be effectively managed and dealt with. She has now indicated this is not her opinion.
…"
In oral evidence in support of her report, she stated that she counselled the applicant about making a decision whether or not the applicant would return to work. She considered that the applicant would dictate when she could return to work, and in what areas, and told the Tribunal that she thought her most important role was to see if she could deal with the issues the applicant had in not trusting the AFP. She formed an informal assessment that the applicant was suffering from anxiety and depression and referred the applicant to a meditation therapist. She also worked on developing various mechanisms with which the applicant could better cope with anxiety. She told the Tribunal that the applicant indicated an overriding preference for returning to work for the AFP, but had issues of mistrusting management and some work colleagues, and a perception of a lack of support.
Ms Barrett told the Tribunal that during the counselling process, the applicant received a letter from the AFP dated 29 September 1999 requiring her attendance at work on 5 October 1999 (Exhibit A9). She told the Tribunal that the applicant then consulted her and was extremely distressed and felt that there was no way that she could trust the AFP. She stated that the letter "put a dampener on things" and the applicant's negative reaction to the letter raised issues of trust. Ms Barrett saw the applicant on three occasions after that, and considered that after receipt of the letter from the AFP, the applicant's chances of returning to work were non-existent.
Ms Barrett considered that the circumstances surrounding the applicant stepping out of the workplace contributed to her depression. She told the Tribunal that she was effectively prevented by the AFP from further counselling the applicant, but saw her again in 2000 at the AFP's request, concerning return to work issues. She noted at that time that the applicant was back with Mr O'Connell and that the relationship was not as destructive as it had previously been. She further noted that the applicant appeared to have stopped taking responsibility for both her own and Mr O'Connell's matters, which she had been doing in 1999. The applicant, at Ms Barrett's request, prepared a chronology of both her own and Mr O'Connell's problems.
dr t. davis
Dr Davis has been a Psychiatrist since 1984. He saw the applicant on 3 September 1998 and 6 October 1999 and prepared two reports in relation to this matter dated 11 September 1998 (T24) and 8 October 1999 (Exhibit R8). In the report dated 8 October 1999 he stated (inter alia):
"…
3.The history and examination does not reveal signs of a diagnostic psychiatric disorder. Ms. Forbes has experienced a number of psychological symptoms in recent weeks, but these are not of sufficient intensity or duration to make a psychiatric diagnosis.
4.She described psychological symptoms of reduced concentration and memory, variable mood, reduced libido and occasional insomnia. These psychological symptoms are associated with considerable frustration with her predicament.
5.Her recent psychological symptoms are a consequence of her dealings with her employer, in relation to her return to work programme and her decision concerning her future with the AFP. It is also related to her struggle with her employer in relation to her grievance, her WorkCover claim, and her current Appeal to the AAT. These issues have given rise to frustration and tension, and contribute to some degree of distress. However, she does not describe symptoms of a recognisable psychiatric disorder per se.
6.I consider that Ms. Forbes is not incapacitated for work. She is distressed by the recent dealings with her employer, and this has caused some disruption to her plans. She is now uncertain about her ability to return to the work place, given the perception of a hostile employer and alienation from her work colleagues.
7.In psychiatric terms, Ms. Forbes is fit to return to work. However, because of the on-going dispute with her employer, and the experiences of the past 2 years, it may not be feasible for her to resume her normal duties with the AFP. She harbours a sense of injustice and a perception that she has been unfairly treated by management, and this would certainly give rise to further feelings of anxiety and possible depression if she is to confront further difficulties in the work place.
A return to work programme would have to be supervised and graduated, under the direction of a rehabilitation consultant who would liaise between Ms. Forbes and her employer.
8.In general terms, the prognosis is good, with every likelihood that she will maintain a reasonable state of physical and mental health. She remains prone to anxiety, particularly when dealing with the complex issues that she has presented to the Minister and plans to take to the AAT. A successful return to work will be significantly influenced by the outcome of these proceedings. As indicated, Ms. Forbes would have to feel that she has the support of her employer, and that she will not face discrimination as a result of the actions taken by her over the last 2 years.
…"
In oral evidence in support of his reports, Dr Davis told the Tribunal that he did not identify a clear precipitating factor in the applicant's depression, and had he been aware of Mr O'Connell ceasing work on 17 December 1997, would have considered that to be a relevant factor. He gave evidence that the applicant had told him that she missed work but that the system was corrupt. He considered the applicant to be a resilient person who had made some head way in dealing with her depression, such that he thought that she could work through her depression from a medical point of view, although it was complicated by a number of work factors. He considered that the letter dated 29 September 1999 (Exhibit A9) caused a set back, and that the applicant became frustrated that things were not proceeding as planned, which marked the emergence of some symptoms of depressive disorder.
Dr Davis told the Tribunal that by the time of his second assessment of the applicant, he had formed the view that by mid-year 1999, the applicant was symptom free and had worked through her depression, such that she was ready to make a decision about work. He considered further that Dr McCleave was in the best position to judge what may have been the precipitating factor as at December 1997. He also considered that psychometric testing is of very limited value in the clinical context of diagnosis of psychiatric conditions.
mr k. schrapel
Mr Schrapel, Federal Agent with the AFP since 1978, worked predominantly in Darwin until transferring back to Adelaide in January 1996. He commenced working in the target development team prior to it taking on the operation with which the applicant also became involved in 1997. In his written statement (Exhibit R7) he noted that the operation had two main parts, and that the applicant had the primary carriage of the second aspect of it, with some assistance "where things crossed over". The Tribunal also notes the following from his written statement:
"…
I recall that Brent and Pam had had differences of opinion on occasions. These differences seemed to relate to Pam making statements or assessments as to what she thought was happening with Brent seeking clarification or explanation of how Pam reached her conclusions. I can't recall specific examples. Brent was probably a bit more of a stickler for detail than Pam, and in my opinion would justifiably question Pam having had more experience in an intelligence (intel) role.
For example, Brent would say that it was not sufficient to just say something, you would have to give reasons, show logic behind any assertion, justify what you have said. I think it was quite a valid thing to do. To say something is one thing, but to be able to back it up and justify it is part of not just the intelligence process but any investigation. Part of Brent seeking clarification included seeking more attention to detail from Pam in everything she did. I don't think that Pam was used to that degree of scrutiny or previously had to justify what she said. Whether it was that, or she had difficulty in expressing herself, I'm not sure.
I believe that Pam was a little bit impulsive at times, acted on the impulse, and perhaps failed to take it to the next step and do a re-evaluation at times. Pam was I consider a competant [sic] investigator who acted to a degree on intuition, reaching conclusions without necessarily fully understanding the logic or how she came to the conclusions she reached. Brent was more methodical. It wasn't as if Brent was questioning Pam's judgment or integrity, but more of a case of explaining the reasons behind any assertion so that he could understand.
…
I note from my diary records that I recorded two incidents detailing confrontations involving Pam. I had a feeling that something would develop from these incidents, which is the reason behind making notes in my diary.
The first relates to two discussions on Tuesday 2 December 1997 between Pam and Brent Aldridge concerning [investigation] which occurred during the day whilst I was seated at my work station. My diary notes (copy attached) reveal:
"… Whist I did not take particular attention to exact content it was obvious that personalities came into play. Forbes accused Aldridge of being negative and this clouded his judgment/attitude in her mind. Conversely it appeared that Aldridge may have been overly critical of Forbes in seeking explanation/justification of [investigation] findings. Unfortunately findings/belief cannot be based on what is in writing alone. However I came to the conclusion that Forbes is also "cruising for a bruising", i.e. looking for a reason to have a blue particularly in view of her relationship with JOC and his "26E" matter – suspect she is looking for an excuse/justification to resign if JOC takes a 26E. Perhaps best summed up in that both need to cut some slack with each other."
JOC is a reference to John O'Connell, a sworn member of the AFP at that time and defacto partner of Pam.
I have no reason to doubt Jock's integrity as a worker. I don't think anyone could have asked anymore, he was a very competent officer from what I saw. I have the same comments for Pam – I saw nothing to question her integrity or work ability.
…
The next entry in my diary to which I refer is dated 17 December 1997 (copy attached). My notes reveal that a team meeting took place re [investigation] between Trevor O'Riley, Amanda Colin-Forbes, Brent Aldridge, Pam and Ros Bell and states:
"… O'Riley advised of problem with statements and need for them by Friday & to be checked. Decided that statements be checked in lots of ? 10 by team members. Aldridge and I initially went through warrant holder statements to ID others involved for consistency. During this exercise was decided by Aldridge/O'Riley that Forbes should do those associated with O'Connell since she was involved in that group. This brought about Forbes "dummy spitting" & complaining about the fact she had the next importation investigation to work on & that she was to meet with NZ Pol LO (liaison officer) who was visiting a.m. this date. After the team meeting Forbes disappeared – not seen for rest of the day."
…
My recollection of 17 December was that at the team meeting Trevor O'Riley advised us of the need for statements to be checked, a brief to be compiled and delivered to the office of the Director of Police [sic] Prosecutions (DPP) on time. I was present at the meeting and can say that Pam was not told at that meeting she was not to continue further investigations, however the brief had to be done as there was a Court deadline to be meet [sic]. This required all available hands on deck for a couple of days only, but not at the total exclusion of all else if other jobs warranted urgent attention. Generally this was in line with what occurred every day, it was no different to what normally occurred. It was always a matter of addressing priorities. If this meant that other jobs had to be delayed or postponed, so be it, we didn't have enough personnel. I don't believe that it was an unreasonable expectation that we were all required to pitch in and help. Pam was aware of the deadlines and that the statements were required to be submitted by a certain date.
At the time I think Pam over-reacted because of what was happening with her partner, John O'Connell. I don't really know the background or what allegations were made concerning Jock, but was aware of the existence of the "26E" proceedings.
I think at the time there were other pressures on Pam. I cannot recall specifics however from general conversations with Pam and by working in a close proximity with her I recall this impression. I recall mention being made by her in relation to her not getting enough support or resources for her investigation. At that stage after the first importation had taken place, things were heating up with other jobs. That was around the 12 Oct to Nov, when there was another importation job, which took away some resources, plus another job we were handling. I recall that there were 3 jobs going on at one time, which stretched resources.
At any time there were various jobs competing for resources. I believe it is only human nature to consider that one's own job is more important. It was however a fact of life that we didn't have the resources, so somebody had to make decisions about where to put those resources. It was just bad luck if someone else had access to resources and you didn't, you just had to accept that other jobs were going on. It was about prioritisation.
…
At that time first and foremost come the brief preparation as there was a requirement to get declarations and evidence together within a certain time to present to the DPP and the Court. Decisions were made on the basis of priorities, and the importance of matters. I agree that the [investigation] still had to be worked on, however the indications were that we didn't have information to tell us when the importation was going to take place, what the commodity was or how it was to be effected. I wasn't convinced that the importation was imminent at all.
I recall that it took us less than a week to vet all the statements and help with the brief preparation so it meant that Pam wouldn't have been permanently curtailed from doing her [investigation] investigations. In fact, the New Zealand liaison officer was to attend that day on the 17th December, so there was nothing to stop Pam, for example, having a meeting with him and resuming with the statement checking. There was nothing to say that if any further information had come in that was of such importance that it could not be pursued.
…"

In oral evidence in support of his statement, Mr Schrapel described the manner in which investigations were proceeding at the relevant times. He stated that the applicant would produce information to Mr Aldridge in relation to her investigations, and that Mr Aldridge would often request corroborative material. He stated that there was not enough money to go around all the jobs required of the group, and certain major drug importations took priority. He further stated that the particular operation the applicant was concerned with in November 1997 was given a lower priority at times, and that as at 17 December 1997 the priority was the deadline for filing declarations in a major drug importation matter before the courts. He told the Tribunal that he worked on the declarations for less than a week and then returned to his other tasks.
Mr Schrapel expressed his disappointment at the manner in which the applicant left the workplace. He did not consider it to be unusual that a superior had spoken to a person prior to them joining a team, and made the observation that the applicant overreacted to Mr O'Connell's redundancy. He agreed, in cross-examination, that once you get into a particular job or investigation, if it is taken away from you, you would take it personally. He gave evidence that the AFP does high value, low volume work, such that you get intimately involved in particular matters. He considered that the applicant was a dedicated worker.
mr b. aldridge
Mr Aldridge worked for the AFP until June 1998. He prepared a written statement (Exhibit R5) from which the Tribunal notes the following:
"…
… when I heard that Pam was going to join my team, I had a word with her in private outside the building. There are no notes of this conversation. I can't recall exact [sic] when this conversation took place, however it was earlier in the piece, prior to Pam joining my team.
During this conversation I told Pam that I was happy with the way my team had been operating and I didn't want the harmony and efficiency in my team damaged. I expressed concerns to Pam about certain aspects of her attitude and things that I knew about in relation to prior working conditions. I expressed concern that I didn't want her negativity that I had observed on the first floor where she had been working to affect the morale or work performance of my crew because I believed they were performing very well and the attitude within the team was good. I also expressed the view that I didn't want her relationship with her defacto, John O'Connell, interfering or hampering the relationship of any member, myself included.
…
On the 2nd of December I had a word with Pam in relation to the next importation. My diary note indicates that I expressed my concern that I was unaware of supporting documents and information used as a basis for premise within briefing papers. I recall that I couldn't get Pam to present me with justification for what she was doing. I couldn't get her to give me a briefing paper with supporting documentation to show me how she could justify that there was going to be another importation.
… I tried to get Pam to tell me what she was using as a basis for the inquiries she was requesting, what she had in mind, what sort of costs she was thinking about and how it was all going to be put together. Again, I had to ask why and what she [was] doing at this point to justify ongoing costs. I again asked for supporting documents but they weren't available. I suspected that they existed but they weren't in a form that we could put our hands on because of the way the file was put together or not put together so that I could assess the position. Pam became quite agitated following this discussion.
…
I recall during our conversation on the 2nd I told Pam that the team model required team input and that all views should be considered. Pam indicated to me that discussions had occurred regularly between the team and she was not aware of any divergence of opinion. She also indicated that there was no team leader on the job and that Pam believed that she should have been made Team Leader in respect of [investigation]. Pam got upset, said there was no support for what she was doing from management including me, and then got up and left.
About 1 ½ hr later we had a further conversation that became worse, and became a bit personal. I couldn't resolve the conflict, despite the fact that I was going to support her being made Team Leader as far as intel development of [investigation] was concerned. In the end I think it came to Pam's opinion that she was doing the job on "gut feeling", that one needed to take risks, and that I was too conservative.
Following the above conversation, I went to George Burton and expressed my concern about the things that were happening with [investigation] and the next importation – it was my concern about the lack of background justification for it. I suggested to George that the relationship between Pam and myself had broken down to a point where I didn't believe a good working relationship could be maintained. I also suggested that I should be removed from the role of Team Leader in respect of the intel development of [investigation], and that Pam be made team leader in respect of that part only (not the overall team leader for intel development). I thought that Pam was probably right in saying that she had more of the information than anybody else. I recall that I indicated I should work on other intel development matters as nothing had been happening with the rest of the region that month when myself and my entire team had been working on [investigation], and I would help with the brief preparation where required.
…
The next incident occurred on the 17th December, after O'Riley had come back to work. A decision was made that everybody stop what they [were] doing and help with the brief preparation. I had already indicated my willingness to do so, so I was pulled back from other work to do this. My recollection is that Kym Shrapel [sic], Pam, Ros Bell, and myself were at an informal meeting near Pam's work station. I can't recall if Dave Allen or another Member, Garrick, was there. We were advised that all other work would stop and that things like statements and the like would be collated and put together so that they could be presented in Court.
…
I thought O'Riley's request for assistance with the brief was a reasonable request in the circumstances. I don't recall any reaction by any of the other members. I think we all realised the situation, that it was just something that had to be done.
…"

In oral evidence in support of his statement, Mr Aldridge told the Tribunal that he was the team leader for the particular operation in late 1997. He had some concerns about the applicant joining the operational team, and the effect it may have on team morale due to his observations of her activities within other branches of the AFP. He stated that he took the applicant aside and had a 5-10 minute conversation with her about his concerns and her relationship with Mr O'Connell. It was the only time in a 23 year career as a police officer that he could recall taking someone aside in this way.
Mr Aldridge stated that the applicant was a good worker, but considered that she had personal issues relating to things that had happened in the region years before that had not been resolved. He thought that the applicant should have resolved those issues years ago. He further stated that the applicant was vehement that she was not getting proper support, and commented that the other team members did not necessarily agree with the way that the applicant was working. He had concerns as to the applicant's provision of supporting documentation.
Mr Aldridge told the Tribunal that on 2 December 1997 he had a conversation in which the applicant got "agitated" and had another conversation some one and a half hours later, "that became a bit personal", both relating, amongst other things, to the applicant's provision of supporting documentation. He stated that he subsequently told Mr Burton that he could not maintain a good working relationship with the applicant and suggested that he be physically removed from that area so that he could actually do some intelligence work, and that the applicant stay on as team leader of her own one person team. He considered that the best solution to their differences at that time was to continue to allow the applicant to keep working on her investigation. He gave evidence that after 2 December 1997 he can't recall having much to do with the applicant, and noted that he did not want to be her team leader.
ms s. peisley
Ms Peisley was an officer with the AFP from 1974 until 1999. She prepared a written statement (Exhibit R4) in relation to these proceedings from which the Tribunal notes the following:
"…
I note that there is a complaint that I was part of a committee that denied a request by Pam Forbes for surveillance in December 1997. I do not recall this incident. In general, however, I say that surveillance is a very expensive process and our budgetary constraints meant that applications for surveillance had to be carefully considered. If, however, the intelligence was sufficient or good enough, then the resources for surveillance would be made available. I was not in the business of hampering investigations that were likely to yield good results for the Region.
…
I was not involved in the incident involving Pam Forbes departure from work on 17 December 1997 and I have no firsthand knowledge of what occurred. …
In January 1998, the AFP went through a re-profiling exercise. This was a nationwide exercise to take account of the changing conditions within AFP. We were losing several of our functions and were taking on other functions. Accordingly, it was necessary to assess whether the people in the organisation were able to cope with the changes that were proposed and could transfer skills from their existing duties to the new duties that may be required of them and, in particular, whether they were able to be multi-skilled as was required under the new structure. I had available a number of 26Es (redundancy packages), which were available primarily for people who indicated and established that they had difficulties with change.
I spoke to anyone in the Region who wished to speak to me about the possibility of taking up a 26E. There were some people who did not wish to take up 26Es, but preferred to continue in the AFP. …
…
On 26 April 1998, I received a telephone call from Pam Forbes indicating that she had received my letter. We discussed the letter. She asked whether preference would be given to people on List A when considering whether to provide them with a 26E. I indicated that they would because these were the people who had been identified as not being willing or able participants in the change process. She asked me why she was not on this list. I indicated that I did not think she fitted the profile of someone who was unwilling to change. I thought she was a person who would be able to be retrained and who would be multi-skilled. She asked me about the "integrity" issue. I did not know what she was referring to. She said I must be aware of the integrity issue and that there had been a complaint investigated by the Commonwealth Ombudsman. I reiterated that I was not aware of any integrity issue. I took her to be referring to an issue with her integrity. I had no reason to doubt her integrity. As we were discussing this, Pam hung up on me. Subsequently a decision was made in respect of the 26Es and Pam was not amongst those chosen to receive one.
In my view, this was a correct decision. Pam was a person who was young and open to change. If she had the commitment, she could be retrained for any position. She was not the sort of person that you would target for redundancy as she was a person who, in my view, had what it took to work for the AFP.
…"
In oral evidence in support of her statement, Ms Peisley told the Tribunal that she had allocated the filing duties to the applicant upon the applicant's return to work in May 1997 because the AFP was short staffed, that job needed to be done, and she thought it would be a good easy introduction back into the workplace. She stated that it was never more than a temporary assignment, and noted a diary entry in which she recorded that she had told this to the applicant on 26 May 1997, having been informed by Mr Burton that the applicant was unhappy with the deployment. She also noted that the applicant "has a view of empowerment and team concept that is not based within any corporate parameters". She also stated that there was no agenda in the placement, and nor was it done because she was unable to otherwise place the applicant.
In relation to the applicant's applications for surveillance, Ms Peisley stated that her main role as General Manager of the region was to undertake all investigations that were within resources, and that the last thing she would have contemplated was not proceeding with an investigation, so long as the resources, priority and intelligence were present to enable the investigation to proceed.
Ms Peisley told the Tribunal that she did not consider the applicant to be suitable for redundancy, as she had the skills to be retrained and would be a useful employee. She stated that she was not aware of any issue which had been raised concerning the applicant's integrity, and noted that the applicant had challenged her integrity. She considered her opinion, as expressed to the internal investigation's agent, that the applicant was bitter, twisted and directs a lot of anger towards females within the region, was an opinion on the applicant as an individual, not on the applicant's integrity as an agent. She further stated that as she had only known the applicant since 1997, she did not look particularly at the applicant's personality issues and had other priorities. She rejected the suggestion that personal feelings interfered with decisions relating to the redundancy and stated that the number of redundancies she could offer were limited, and there were different personal and professional circumstances affecting each of those people.
ms r. bell
Ms Bell, a member of the South Australian Police Force since 1975, has served in a number of areas, including having been seconded for a period to the AFP and to the Organised Crime Task Force. She prepared a written statement in relation to this matter (Exhibit R6) wherein she states that she first met the applicant in early 1996 and worked with her for a time. In her written statement the Tribunal notes (inter alia) the following:
"… I recall that Brent did query Pam every few days as to the state of the investigation as there didn't seem to be enough information to justify the continuing investigations. I believe that this was reasonable for Brent to do so in the circumstances. At the time resources were limited – there was both lack of funding and people, so we had to justify the cost of continuing investigations. The continuing investigation simply could not be justified.
…
I do recall a weekend in December when, without consulting with myself or the rest of [the] team, Pam requested the acting team leader, Dave Allen, to go and see the general manager to request surveillance for a particular person … It seemed to be a sudden suggestion by Pam, without any real reason. Dave asked Sandy Peisley who said that without proper justification she wouldn't allow the expenditure. No one could justify it, but Pam took it as a personal insult. The others in the group agreed that surveillance could not be justified.
The other thing that was happening around this time was that her partner John O'Connell had resigned. That week was probably about the last week he was going to be in the job, and I recall that Pam appeared to be upset about that. I didn't have any direct conversations with Pam about what was happening with John. It was obvious that she was more upset than usual at the time. Some of the team members I think may have mentioned that she was probably upset because John was leaving.
…
I recall in December 1997 I had been on some days off and when I came back to work I noticed that Brent was sitting way down the end of the room apart from the rest of the team. Pam told me that she and Brent had had a huge blew [sic]. I can't recall what the fight was about.
The next incident I recall concerning Pam was when we were all tasked with doing brief preparation for [investigation]. The whole team was asked to assist Trevor O'Riley – Pam, myself, Kym Schrapel, Dave Allen, and I can't recall who else. It would have been members of Trevor's team as well. Trevor got us all together, it wasn't really a formal meeting, when he told us he needed to get a brief together and assist in vetting the declarations from witnesses. The idea was that Trevor was going to give us 10-12 statements to peruse and check the accuracy of them (e.g. typing/spelling).
I recall that Pam straight out said "we (meaning I assume herself and myself) weren't helping with the brief". I said hang about, it's something we've all got to do, and it won't take long. Pam flatly refused. I recall that Trevor had allocated Pam about 8-10 declarations to do. Pam told Trevor and anyone else who listened that she wanted to work on her importation job and didn't have any time to assist in checking the declarations. Pam flatly refused, then picked up her cigarettes and stormed out of the room and went downstairs.
I went to speak with Pam because she looked upset when she left the room. I asked Pam what was the matter, she appeared very distraught, and she told me that "they don't want me to do the importation", that they had stopped the investigations. I told Pam that we all had to do Trevor's brief and that it would only take 1-2 days. She couldn't see it that way. She somehow twisted the information and made it appear as if it was a slur on her job. Pam was very very upset and she couldn't accept that it was only for 1-2 days, and she would then go back to the importation investigations.
No-one mentioned to Pam or any of us at the time that the importation investigations were to cease permanently.
Pam was absent from the room for some time. I don't know what she was doing during that time. Pam came back about ½ hr or so or later, and said that she was going to ring the doctor for an appointment. Pam did that, and arranged the appointment for about 1 hr later.
Pam then picked up everything on her desk, swept it into the rubbish bin, then stormed out of the room. We didn't see Pam again as she went off sick after she saw her doctor.
…"
In oral evidence in support of her statement, Ms Bell told the Tribunal that she did not gain the impression that the applicant was unpopular within the AFP, and considered her to be more passionate and dedicated than most people. She stated that she assisted the applicant with the particular operation in late 1997, but that the applicant took it upon herself to organise the operational and overseas enquiries. She told the Tribunal that she assisted with Mr O'Riley's brief after being requested to do so. She was not aware that the applicant had personal problems with other agents or management, knew that the applicant did not like a couple of people, but was not aware of the details.
mr j. mannow
Mr Mannow worked as an AFP agent until 2000, and was a part-time Welfare Assistant at the AFP. He was on leave during late 1997, and returned in January 1998. On his own motion, he contacted the applicant, having heard of the circumstances of her leaving the workplace. He stated that after a couple of missed appointment times, he met with the applicant at her home, and advised her of the welfare-type services that were available, including referral to counselling conducted by Ms P. Barrett's psychology firm. He told the Tribunal that the applicant never chose to discuss particular issues with him. He gave evidence that he had a couple of further conversations with the applicant, including one in February 2000 in which he mentioned a payment of income arrears which had become available to AFP staff.
mr t. o'riley

Mr O'Riley has been with the AFP since 1977. He prepared a written statement in relation to these proceedings (Exhibit R3) from which the Tribunal notes the following:
"…
Resources were a bit tight. In Central Region we had had a twenty five per cent cut back of our budget and we just didn't have the people in the region to do what one would like to do. However, I believed at the time that Pam was happy to take on the second importation, knowing full well that resources were tight. Pam told me she was quite happy to have a look at the second importation with Ros.
Pam never at any time spoke with me about any problem with lack of resources for what she was doing. I spoke to her on a number of occasions and asked how it was going and was she happy with the way things were headed and she told me that she was quite happy. Pam assured me that she and Ros could do the job bearing in mind the problems that we had within the region, i.e. the limited amount of people that we had to actually do the job.
…
Upon my return from Melbourne I looked at the brief of evidence and found that there were still a lot of statements which needed to be vetted to make sure that the continuity of all the exhibits and continuity of what had actually happened gelled with all the statements, so there was a fair bit of work still required to make it presentable to the Court.
I brought all the members of the team together on 17 December 1997 and explained that I needed to get them all to assist in the vetting of statements to present to the Court on 19 December 1997. From memory Kym Schrapel, Ros Bell and either Dave or Brent, Pam and myself attended the meeting. I explained that I required each of the members to take 3-4 statements, vet those statements, then once those had been vetted, a brief was required to be co-ordinated. In fact, in comparison with the other members, I tried to cut Pam's statements down. Everyone agreed to do their bit. Pam didn't.
I was responsible for getting the statements prepared by 19 December 1997 for the DPP and Court. It must be borne in mind that there was limited time within which to co-ordinate the brief and I had pressure from management and the DPP to make sure that we had sufficient evidence to get an extension to present all statements to the Court. We still had to present some form of brief on the 19th of December and produce something in the way of statements for the other side to satisfy the Court that the police were actually doing their job.
From my memory, Pam didn't say too much to me either directly at, or following, the meeting. Pam did not indicate directly to me that she was not happy with the vetting of the brief. …
…
Once I'd given the statements to Pam to vet, Pam disappeared and I believe went down to have a cigarette. I learned later on that day Pam had apparently spoken with the Inspector and said that she'd had "enough of this", and left the office.
…
I have had subsequent conversations with Pam concerning John since Pam has left the AFP. On several occasions I have seen Pam in Court or with John when they have came [sic] in to the office. On those occasions I have had conversations with Pam when I came to the conclusion that Pam believed certain people in management were trying to sink John. John appeared to me to be a dedicated officer, a very good investigator, but he had problems in communicating with people. During these conversations Pam made certain comments, of which I cannot now recall the exact words, following which I came to the conclusion that she thought people in management were out to get John, and the grounds for everything that had happened were not warranted. I am unable to recall the exact details of these conversations.
…"
In oral evidence in support of his statement, Mr O'Riley told the Tribunal that the applicant was hard working and dedicated. He stated that he was absent from 1 to 16 December 1997, but was made aware of conflicts between Mr Aldridge and the applicant during that time. He agreed, in cross-examination, that he has experienced becoming very intense about particular work and particular investigations with which he has been involved. He could not recall the applicant being asked to do filing work, and agreed that to have an agent do such work for 2 to 3 weeks would be a waste of police resources. He further agreed that if one were to be asked to do such work, one would require an explanation for it. He gave evidence that he has counselled members of various teams he has led over the years, but could not recall an occasion where he spoke to a person prior to their joining a team about negative attitudes or work practices.
applicant's submissions
Mr Britton submitted, on behalf of the applicant, that the applicant's depressive disorder was contributed to by workplace issues, particularly the events from mid 1997 through to December 1997, precipitated by the historical events of 1995 and 1996. He noted, in particular, the deployment of the applicant on filing duties, not consistent with her experience, which was really a way of telling the applicant that she was not wanted, was different and was going to have problems returning to work in the Adelaide office. He further submitted that the applicant was blocked in many of the things she was doing, and received no feedback or explanations for why she was being denied certain things.
In relation to the events of November and December 1997, Mr Britton submitted that the fact of 17 December 1997 being Mr O'Connell's last day was mere coincidence. He also submitted that the culmination of the altercation of 2 December 1997 and the events of 17 December 1997 when the applicant attended Dr McCleave, suggested a direct relationship between the applicant's psychological problems and the workplace.
Mr Britton submitted that Ms Peisley had given contradictory evidence, and had chosen not to offer a redundancy package to the applicant, simply hoping that she would leave. He submitted that the applicant had a genuine belief that the systemic and hierarchical problems meant that information she was gathering was not properly dealt with. He also submitted that the conduct of the AFP after the applicant left work is demonstrative of their negative approach to the applicant from the moment she returned to work in May 1997.
respondent's submissions
Mr Apps submitted, on behalf of the respondent, that the applicant was never stopped from performing her duties, was allowed to work on operations, and was made a team leader. He further submitted that it was the applicant's choice to "throw dirt" at her superiors, which resulted in her finding herself in the position whereby she could not return to work. He also submitted that the applicant knew she could not return to work because of the accusations she had made, and thought she might get a redundancy package. In his submissions, there is a direct relationship between the refusal to give the applicant a redundancy package and the diagnosis of depression.
In relation to the filing duties, Mr Apps submitted that there were limited resources available to the AFP, and that it was a discrete task of limited duration, which was followed by the applicant being allowed to return to active investigative duties. He further submitted that the applicant was given explanations in relation to the surveillance applications, in that such were simply too expensive. He also submitted that people cannot always get what they want, especially when there is not enough money available. He noted that Ms Bell, who was not in a management position, considered that the surveillance was not justified.
In relation to the incident regarding Mr Aldridge speaking to the applicant prior to her joining his team, Mr Apps submitted that there was nothing unusual or inappropriate for a leader to take someone aside in order to ensure that they would work as part of the team. In his submission, all incidents have a sensible and rational explanation. In relation to the request to work on brief preparation, he submitted that the evidence was that it would not take long, and that it was common practice for certain tasks to be given top priority.
Mr Apps submitted that the real problems for the applicant developed around the time that Mr O'Connell began to have trouble at work, and that she was preoccupied with his dilemma, sharing in his stress and grievance. He also submitted that the real problem was the applicant's personality, and the way that she chose to work, adopting an "everyone else is wrong" attitude. In his submission, the applicant's difficulties only resulted from her perception of events, and not the reality of them.
discussion and findings
The Tribunal has not set out the submissions made by both parties at length, as such are well known to the parties and Tribunal. It takes all evidence and submissions into account in coming to its decision.
From the outset, the Tribunal notes that all of the medical evidence before it agrees that, at a minimum, the applicant suffered from depression in or about mid-1998. The Tribunal is satisfied and so finds that the "depressive disorder" condition claimed by the applicant falls within the definition of "disease" contained in sub-section 4(1) of the Safety Rehabilitation and Compensation Act 1988 (the Act). Accordingly, the Tribunal must be satisfied that the applicant's employment contributed to her depressive disorder ailment in a material degree. This Tribunal concurs with the approach taken by Senior Member Beddoe in relation to the relevant legal considerations to be applied as set out in paragraphs 35 and 36 of Re Van Houten and Comcare (AAT 12339, 24 October 1997):
"35. I turn now to consider the issues. Has there been an ailment or an aggravation of an ailment that was contributed to in a material degree by the applicant's employment (s4(1)))? That is a stricter test than the test considered by the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. There Windeyer J said at page 641:
"I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."
36. In Westgate v Australian Telecommunications Commission (1988) 7 ALR 529 Davies J said at page 536:
"Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease."
As the Federal Court said in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 at 328 it must be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection is to be established on the probabilities but once established it matters not that the contribution by the employment is large or small."
Senior Member Beddoe continues in Re Van Houten to rightly draw a distinction between a material contribution being made by employment on the one hand, and stress and depression resulting from a person's perceptions about the workplace on the other (paragraphs 38 and 39):
38. The applicant clearly attributes his stress and resulting depression to his employment. I am not satisfied that this is the case. In my view it is more likely than not that the applicant's depression was caused by his perceptions of failures by the Department of Social Security to provide him with facilities and benefits which he perceived to be necessary so that he could pursue his employment as staff counsellor on terms and in the manner that he considered appropriate for the performance of the duties of the position. This is made clear, in my view, by the report of Dr Wragg (T11).
39. It does not follow, in my view, that because the applicant developed these adverse perceptions about his employment with consequential stress and depression that the employment made a material contribution to the applicant's condition of major depression."
As to the issue of liability in this case, the core question for the Tribunal is to determine whether the nature and particular circumstances of the applicant's work contributed in some material way to her depressive disorder. In the alternative, Mr Apps submits, any depression resulted from the applicant's own perceptions of work, from her subsequent actions having left work, particularly relating to the failure to obtain the redundancy package, and from shouldering Mr O'Connell's problems.
The Tribunal's observations of the applicant's presentation in the witness box are consistent with both the medical and co-worker assessments before it. Namely, the Tribunal finds that she was an extremely dedicated, intensely focused and hard working AFP agent. The Tribunal also finds that she has a "short fuse", is aggressive, and has an obsessive personality. The Tribunal is left with no doubt from the evidence before it, that the applicant's personality, perception of the workplace, and own behaviour in relation to work and personal issues, were major contributing factors to her leaving work and the development of her depression. Whether or not the applicant's employment of itself was a contributing factor however, depends upon the characterisation of that work.
It is relevant to note that the traits listed above were traits that Dr McCleave considered were fostered and developed within police culture. The applicant had been with the AFP since 1978, and Dr McCleave considered that her aggressive and obsessive character had been developed through police training and experience.
The nature of the investigative work undertaken by the AFP in recent times as described to the Tribunal, is high value, low volume work. Investigations tend, therefore, to be of significant duration, with an intense and intimate involvement of the investigative team members. The AFP was also undergoing major restructuring from about 1995 onwards, as outlined to the Tribunal, and clearly from the evidence before it, the new structures and changes in work practices were met with some acrimony by the serving members of the AFP.
The applicant referred to various events prior to 1997 as forming part of the work contribution to her depressive disorder. The applicant was clear however, and the Tribunal so finds, that she took long service leave predominantly due to family problems. Although the applicant felt frustrated about the events in 1995, she told the Tribunal that after her period of long service leave, she had come back to work "refreshed". Accordingly, the Tribunal finds that whilst the events preceding the return to work in 1997 form part of the background and mindset with which the applicant approached things, those events cannot be said to have materially contributed to the development of her depressive disorder.
Upon returning to work, the applicant was required to perform filing duties. The evidence before the Tribunal was not clear as to whether this was just for a few days or for up to two weeks. In any event, the Tribunal finds that the applicant took an unreasonable attitude to these filing duties. She was returning to work, and it is not realistic to expect to immediately be thrust into ongoing investigative operations. Such filing duties were within the scope of those which the applicant was expected to perform, albeit not regularly. The Tribunal can appreciate that an experienced police officer might well find such duties to be frustrating, but such a perception does not mean that the activity itself constitutes a materially contributing factor, and the Tribunal so finds. The Tribunal also accepts Ms Peisley's evidence (as based upon her diary entry) that she informed the applicant that the filing work was temporary as a result of a staff shortage, and a need for that job to be done. The Tribunal rejects Mr Britton's characterisation of the return to work, and does not agree that the provision of filing duties was indicative of a more sinister plan to demonstrate to the applicant that she was not wanted.
Central to the applicant's claim are the circumstances surrounding the applicant's involvements in the various investigations that were ongoing in 1997. Prior to joining the investigative team headed by Mr Aldridge, the applicant had a conversation outside the building at his instigation. Based upon its assessment of the evidence of both the applicant and Mr Aldridge, the Tribunal considers that the applicant was being given the clear impression that she was not wanted on Mr Aldridge's team. He told her, in effect, to steer clear of her defacto partner at least in so far as discussing her work issues with him, and that he did not like her attitude. The Tribunal considers that it would have been stressful for the applicant to be working in a position where she felt she was not wanted and to learn that prior to even starting work she was going to have an acrimonious relationship with her team leader. This comes on top of the fact that, as Mr Aldridge himself told the Tribunal, policing is stressful work.
The Tribunal was told of the major importation operation that was taking place in the region and how this led to the development of a secondary investigation. The second limb was that part with which the applicant became heavily involved towards the end of 1997. The Tribunal accepts the evidence of Mr O'Riley that the applicant was aware that she would be doing the job with limited resources being available.
The evidence of Ms Bell demonstrates that the applicant shouldered the bulk of this investigation. As Mr Aldridge indicates in his statement, the applicant "had more of the information than anybody else" (Exhibit R5). The applicant became intimately involved in this investigation. She was clearly, at times, involved to the exclusion of others, as other employees indicated in evidence that they were not always aware of what the applicant was up to, or whether or not she had corroborative material.
It is significant to consider, in these circumstances, that the applicant was described by Dr McCleave has having an aggressive and obsessive personality. Dr McCleave is a highly credible witness, and his long involvement with both the State and Federal police forces and with the applicant, places him in an excellent position to make an assessment in this matter. The Tribunal accepts his evidence that these traits were fostered and developed in the applicant by her training and experience within the AFP culture over some 20 years. Both Mr Schrapel and Mr O'Riley told the Tribunal that they have become intimately or intensely involved in operations at times, and Mr Schrapel indicated that in such circumstances, one can take it personally if such an investigation is taken away. Dr McCleave echoed these sentiments. The Tribunal accepts his proposition that if someone is following a case through and if it is suddenly taken away without adequate explanation, then that person will be significantly affected.

The Tribunal considers that the applicant became obsessively and intensely involved in the investigation. Whilst this is attributable to her personality, the AFP contributed also, by virtue of her training and saturation in police culture over the course of 20 years. As Dr McCleave stated, the police culture fosters obsessive and aggressive traits in its investigators. The applicant then had a number of "run-ins" with Mr Aldridge about the conduct and direction of the operation. Given her intense involvement, the applicant perceived that she was being barred from properly investigating matters. The other AFP officers and former officers had a different perception, telling the Tribunal that the applicant was being told to ensure sufficient corroboration, and that resources were limited for requests such as for surveillance operations.
Such perceptions are incidental however, to what the Tribunal considers to be the core problem, namely, that the applicant commenced working in a team in which she had been told she was not welcome, and became intensely involved in an operation in relation to which she had several altercations with Mr Aldridge. Matters then came to a head on 2 December 1997, when the applicant and Mr Aldridge had two altercations. The somewhat extraordinary result was that Mr Aldridge removed himself from the work area, and took steps to have the applicant appointed as her own team leader over that particular investigation. What is extraordinary about this turn of events, is that if the team leader had concerns about the manner in which the applicant was conducting her investigation, it was only adding fuel to the fire to allow her to personalise the investigation further by taking on primary responsibility for the investigation. Whilst the events of 2 December 1997 were stressful of themselves, the Tribunal considers that the significant impact of those events, was that they enabled the furtherance of the applicant's obsession and personalising of that particular operation.
On 17 December 1997 events came to a head when the applicant was informed that she was required to work on another brief, suspending her operation. Clearly the applicant had the perception that the operation was being stopped completely, which is at odds with the evidence of co-workers before the Tribunal, who gave evidence that the work on the brief preparation was temporary. In any event, the applicant asserted that the operation was at a critical juncture, and that a major importation was imminent. Undoubtedly, the applicant saw her operation as being significantly more important than any other work she was being asked to do, and whilst this is largely a product of her personality, the Tribunal is mindful of the cultivation of that personality, and the enabling of the applicant's intense and personal involvement in the operation by the events of the preceding weeks.
In light of these factors, the Tribunal turns to consider the medical evidence before it. Dr Davis is a highly respected and regarded psychiatrist, and the Tribunal found him to be a highly credible witness. He did not see the applicant until 1998 however, and agreed that Dr McCleave was in the best position to judge what may have been the precipitating factors in December 1997. The Tribunal has already expressed its views with regard to Dr McCleave, and so accepts his evidence that the difficulties she encountered in not being able to continue the investigation were a precipitating problem as at 17 December 1997, which resulted in the applicant being unable to attend the workplace immediately after that time. Whilst there were reasons given for stopping that investigation, the applicant was at that stage enabled by her employer to become obsessed by it. Consequently, the culmination of the factors which enabled her to become intensely and personally involved in the investigation led to her "snapping" on that day. The Tribunal finds therefore, that this was, to a material degree, as a result of work place stressors relating to the involvement in operational issues. Accordingly, the Tribunal finds that the work that the applicant was doing in late 1997 materially contributed to her incapacity, and to the development of her psychiatric condition which was eventually diagnosed in April 1998, according to Dr McCleave, as a depressive disorder.
The Tribunal is not suggesting that the operational problems were the sole precipitator, and certainly considers that Mr O'Connell's problems as at December 1997 would have been a significant contributing factor. So to was the applicant's perception of events, which was at odds with the reality of the work situation. Nevertheless, the Tribunal remains satisfied that the particular work the applicant was undertaking in late 1997, and the circumstances in which it was being undertaken, materially contributed to the development of her condition.
The Tribunal notes that the actual diagnosis of a depressive disorder was not made, according to Dr McCleave's evidence, until April 1998. The Tribunal is satisfied, and so finds, however, that the applicant's mental state was outside the normal bounds as from 17 December 1997, and further finds that the respondent is liable as and from this date (applying Comcare v Mooi (1996) 69 FCR 439). The Tribunal was referred to Re Van Houten by the respondent as a case bearing some comparison, however, the Tribunal distinguishes it on its facts as to the objective evidence of the actual employment incidences. The Tribunal has also had reference to the decision of Member Dr Campbell in Re Malicki and Comcare [2000] AATA 832. The incidences in the current matter are of at least equal or greater significance than those forming the basis of the material contribution outlined at paragraph 123 of Re Malicki.
The Tribunal has set out at some length in the evidentiary section of this decision, the history of matters subsequent to the applicant leaving work. These include, amongst other things, the various counselling sessions the applicant attended, the failure of the applicant to obtain a redundancy package, difficulties with the applicant's defacto partner and his work and redundancy problems, the minute sent to the applicant requiring her return to work, and the applicant's commencement of a University course.
Taking into consideration all of the evidence before it, the Tribunal has reached the following conclusions. The applicant had a number of other factors which the Tribunal finds significantly contributed to her depressive condition and symptomatology. These included her family problems, and particularly the problems experienced by her defacto. As Ms Barrett told the Tribunal, the applicant shouldered much of the burden of Mr O'Connell's problems, and was clearly very distressed by the anomalies detected in his redundancy forms and associated difficulties. The applicant was also instigating enquiries into other AFP officers, pursuing a redundancy for herself (which failed to eventuate), and had a number of other industrial issues as noted in the evidence and medical reports before the Tribunal.
The Tribunal comments that the AFP adopted a poor attitude with respect to the rehabilitation and support of the applicant. There is no evidence of a suitable return to work programme being considered at any stage. The AFP provided entirely inadequate support by way of counselling, which clearly should have been ongoing throughout the entire period. The Tribunal gained the impression from Ms Peisley's evidence that the AFP simply sat on its hands and waited to see what the applicant might do, rather than be proactive to attempt to assist the applicant. Mr Mannow contacted the applicant off his own bat, and whilst he is to be commended for that, it is a pity that his superiors did not initiate further and more intense assistance. Had such occurred, the situation in which both parties now find themselves may have been averted.
As at 11 September 1998, Dr Davis considered that the applicant's prognosis was good (T24). As he told the Tribunal, he considered the applicant to be resilient, and that whilst a number of work factors complicated the situation, he thought that medically the applicant could work through her depression. Dr McCleave agreed in his evidence with Dr Davis' assessment, believing that the prognosis was good as at that time. Taking into account the medical evidence before it, the Tribunal is satisfied, and so finds, that the applicant continued to suffer from her condition throughout 1998, and was continuing to suffer into 1999, whilst making some progress in working through her depression. It is further satisfied that as at this time, her condition continued to be contributed to in a material degree by the actual work she had been undertaking in late 1997. The Tribunal is satisfied and finds that the particular investigative issues continued to contribute, notwithstanding the other non-work related issues that were also substantially involved in her depressive condition. The Tribunal notes that Dr Davis considered that by mid 1999, the applicant was well enough to make a decision regarding whether or not she could return to work. The Tribunal concludes, on the evidence before it, that by about August/September 1999, some symptoms of the depressive condition were still present. The applicant had however, with the benefit of Ms Barrett, worked through those aspects of her depressive condition that were related to the actual work she was undertaking and the conditions in which she was performing it in late 1997. She had worked through these aspects such that she was in a position to consider a return to work.
The applicant then received the somewhat tersely worded minute (Exhibit A9) requiring her return to work on a specified day. As Ms Barrett pointedly told the AFP (Exhibit A8), they should not have handled things in this manner. In order to be compensable, there must be a material contribution to the disease by the actual work that the person was undertaking, or the circumstances in which it was being undertaken. The classic statement of this principle is outlined by Windeyer J in Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 at p641 (inter alia):
"…
When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.
…"
A distinction is to be made therefore, between the actual acts and circumstances encompassing employment and those acts and circumstances which are incidental. In Re Mills and Australian Postal Corporation (AAT 8300, 12 October 1992) the Tribunal notes the need for a causal nexus between the applicant's employment and condition at paragraph 32:
"…
32. We find that it was not what the applicant did in his employment which contributed in a positive and material way to his acute anxiety state (Elliessy's case (paragraph 22 supra)). Nor was it "in the doing of his work" (Treloar's case (paragraph 17 supra)) which exposed the applicant to a state of affairs which in turn contributed to his anxiety state. His anxiety state, which incapacitated him for work, arose after the AFP, in discharging its duty, obtained search warrants and made the decision to search the home of the applicant and left it in a condition which upset him. There is no nexus between the applicant's employment and his reaction to what occurred. The respondent was not responsible for the raid and the actions of Mr Butteriss and Mr Nicholls do not provide the necessary nexus. The respondent, through Mr Butteriss and Mr Nicholls, was not actively involved in the preparation for, or execution of, the search. The applicant's disease did not arise as a result of any dealings he had directly or indirectly with Mr Butteriss or Mr Nicholls. The respondent did not make an express allegation to the AFP that the applicant was involved in a conspiracy to defraud the respondent. An employee of the respondent, Mr Nicholls, was present during the search but only for the purpose of identifying property of the respondent if necessary. These factors do not provide the necessary causal link between the applicant's acute anxiety state and his employment.
…"
In the present matter therefore, the Tribunal has given careful scrutiny to the events occurring after the applicant left work which are said to contribute to her condition, and considered whether or not such events establish a causal nexus between the applicant's employment or employers and her ongoing impairment. Significantly, Dr Davis saw the applicant on 6 October 1999, the day after she was supposed to report back to work, and about a week after she had received the minute from the AFP (Exhibit A9). He reported from that examination that (Exhibit R8):
"…
3. The history and examination does not reveal signs of a diagnosable psychiatric disorder. Ms. Forbes has experienced a number of psychological symptoms in recent weeks, but these are not of sufficient intensity or duration to make a psychiatric diagnosis.
4. … These psychological symptoms are associated with considerable frustration with her predicament.
5. Her recent psychological symptoms are a consequence of her dealings with her employer, in relation to her return to work programme and her decision concerning her future with the AFP. It is also related to her struggle with her employer in relation to her grievance, her WorkCover claim, and her current Appeal to the AAT. …"

The Tribunal accepts and prefers Dr Davis' opinion as at that time in October 1999. It finds that, on the evidence before it, any depressive symptoms which the applicant may have had as at October 1999 and after that time, could not be attributed to the particular work difficulties in 1997 outlined above. In the Tribunal's assessment of the evidence before it, the symptoms as at October 1999 related to the stress and anxiety of the various legal proceedings, and the applicant's own perception and anxiety about her employer and alienation from colleagues. These aspects are distinct from what could reasonably be considered to materially arise from her actual employment. The work she was doing in late 1997 materially contributed to her depression, but as was evident from the testimony before the Tribunal, such events were superseded by a number of other factors. By the time she saw Dr Davis in October 1999, the Tribunal can no longer be satisfied that there is a material contribution from the actual employment she was engaged in.
As a matter of fact, the Tribunal finds that as at 6 October 1999, the applicant's actual employment and work with the AFP was not a materially contributing factor to whatever depressive symptoms she continued to display. From that time onwards, the applicant's actual employment, or the actions of the employer, were not such so as to give rise to a material contribution on the balance of the evidence. Accordingly, the Tribunal finds that the respondent's liability pursuant to section 14 of the Act ceased as of this date.
After October 1999, the applicant continued to suffer from depressive symptoms such that even had a return to work programme been offered, as Dr Davis indicates, it would have had to have been supervised and graduated. As it was, the applicant was in a position to commence a University course in 2000, having applied in or about October or November 1999. She encountered some difficulties with the full-time load, but has been able to manage a part-time load. Whilst there is clearly a distinction between federal police work and university studies, the Tribunal considers that the applicant would have been able to commence some form of graduated return to work as from the end of 1999.
It is unfortunate that the applicant's employment as a police officer ended with such acrimony after such a long career. She was a very dedicated officer, and as the Tribunal was able to observe, committed to law enforcement with a fervour that was obviously such so as to be detrimental to her own mental health at times. Hopefully the applicant's prognosis and continuing symptoms will improve as these proceedings come to a close.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that the respondent is liable to pay compensation, pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, from 17 December 1997 until 6 October 1999 inclusive.
The Tribunal, pursuant to s.67 of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Ms U. Dahl (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  30 April, 1, 2 & 4 May 2001
Date of Decision  13 June 2001
Counsel for the Applicant        Mr G. Britton
Solicitor for the Applicant         T.F. Owen & Co.
Counsel for the Respondent    Mr S. Apps
Solicitor for the Respondent    Sparke Helmore