Forge, J. v Commonwealth of Australia

[1995] FCA 128

CATCHWORDS

Public Service - Tenure of office - Dismissal and suspension generally - The Commonwealth - Decision to retire officer on ground of invalidity - Appeal by officer to Redeployment and Retirement Appeal Committee - Nature and scope of appeal - Considerations relevant to determination of appeal.

Public Service Act 1922 - s.67Z

Inglis v. Bateson (1990) 99 A.L.R. 149 appld.

JOANNE FORGE v. COMMONWEALTH OF AUSTRALIA

VG329 of 1994

Jenkinson J.

Melbourne

17 March, 1995

IN THE FEDERAL COURT OF AUSTRALIA     )

VICTORIA DISTRICT REGISTRY            )    No. VG329 of 1994

GENERAL DIVISION   )

BETWEEN:      JOANNE FORGE

Applicant

AND:      COMMONWEALTH OF AUSTRALIA

Respondent

CORAM:    Jenkinson J.

PLACE:    Melbourne

DATE:     17 March, 1995

REASONS FOR JUDGMENT

Hearing of an application for an order of review in respect of a decision under s.76Z of the Public Service Act 1992 by a Redeployment and Retirement Appeal Committee constituted under Subdivision D of Division 2 of Part II of the Merit Protection (Australian Government Employees) Act 1984.

Section 76W of the Public Service Act 1922 empowers the Secretary of a Commonwealth Department of State to retire an officer of the Australian Public Service when the Secretary is satisfied that the "officer is unable to perform ... her duties, or other duties appropriate to the officer's classification, because of physical or mental incapacity". The power is exercisable by the giving of a notice to the officer, on whom s.76Z confers the right to appeal to a committee of the description stated above ("the Appeal

Committee") "on the ground that .... the retirement of the officer .... would be unreasonable".

Section 76WA provides that, "in spite of anything contained in section 76W", an officer who is an "eligible employee" for the purposes of the Superannuation Act 1976 and has not reached her maximum retiring age within the meaning of that Act is not capable of being retired on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees NO. 2 has given a certificate under section 54C of that Act. Section 54C of the Superannuation Act 1976 provides:

"(1) In spite of anything contained in any Act, award, determination or contract of employment, an eligible employee who has not reached his or her maximum retiring age is not, after the commencement of this section, capable of being retired from the employment or office by virtue of which he or she is an eligible employee on  the ground that, because of any mental or physical condition, the eligible employee is unable to perform his or her duties, unless the Board has certified in writing that, if the eligible employee is so retired, he or she will be entitled to receive benefits under Division 4 of Part V.

(2) The Board must not give a certificate in respect of an eligible employee under subsection (1) unless the Board has approved the retirement of the eligible employee on the ground of invalidity in accordance with this Part.

(3) In subsection (1), a reference to an eligible employee being retired from employment or office includes a reference to the services of the eligible employee being otherwise terminated."

As an officer for the purposes of the Public Service Act 1922 the applicant was an "eligible employee" within the meaning of that expression in the Superannuation Act 1976.

The applicant was born on 27 October 1949. She became a pharmacist in 1973. She commenced employment in the Department of Veterans' Affairs as a pharmacist at the Repatriation General Hospital Heidelberg in 1985 and continued in that employment until the decision of the Appeal Committee on 31 May 1994 : s.76W(5) of the Public Service Act 1922 and regulation 120C of the Public Service Regulations so provide in a case where the right of appeal conferred by s.76Z is exercised. The classification of the office she held in the Australian Public Service during the period when her mental capacity was in question was "Science 2 (Pharmacist)". In October and November 1990 the applicant was treated as an in-patient at St. Vincent's Hospital for an acute psychotic episode which had incapacitated her. In December 1990 she was again incapacitated and was treated at that hospital as an in-patient until the middle of February 1991. The psychiatrist who treated her during those periods and who has continued to see and treat her to report upon her condition to the respondent's officers, Dr. Robert Yewers, expressed in May 1992 the opinion that the applicant had "suffered from a psychotic illness, either a paranoid psychosis or a schizophrenoform psychosis", but that she was "fit to continue her work as a pharmacist under supervision". Officers of the respondent had decided that the applicant should be on sick leave from the beginning of May 1992. She was not thereafter permitted to work in her employment by the respondent, notwithstanding her wish to do so. Regulation 57(2) of the Public Service Regulations empowers the Secretary of a Department to direct an officer who has been granted sick leave to absent herself from duty.

The certificate contemplated by s.54C of the Superannuation Act 1976 was given in respect of the applicant by the Commonwealth Superannuation Board of Trustees No. 2 in September 1993 and in the following month the Secretary of the Department of Veterans' Affairs by notice in writing given to the applicant retired her from the Australian Public Service. Her appeal to the Appeal Committee was determined on 31 May 1994. The power to retire the applicant was said to have been enlivened by the Secretary's satisfaction of one of the circumstances, called in s.76W of the Public Service Act 1922 a "relevant matter", and specified in paragraph 76W(6)(a). That paragraph provides:

"In this section,   'relevant matter', in relation to an officer, means any of the following matters:

(a)  that an officer is unable to perform his or her duties, or other duties appropriate to the officer's classification, because of physical or mental incapacity."

The nature of an appeal against the giving of such a notice was considered by Neaves J. in Inglis v. Bateson 1990 99 A.L.R. 149. His Honour observed (at 164-5):

"In the event that the Secretary decides to reduce the officer's classification or retire him from the Australian public service and gives him a notice to that effect, the officer has conferred upon him the right of appeal for which s76Z provides. The appeal, however, is limited to the ground that the reduction in the officer's classification, or the retirement of the officer, as the case may be, 'would be unreasonable'. There was some discussion during the hearing as to the use by the draftsman of the subjunctive rather than the present tense in identifying the ground of appeal. Its use seems to me to be explicable on the basis that, where an appeal is lodged, the reduction in classification, or the retirement, does not take effect unless and until the Redeployment and Retirement Appeal Committee confirms the Secretary's notice. It is, therefore, quite apt to identify the ground of appeal as being whether the reduction or retirement, which has not yet occurred, would be unreasonable if it were to be effected.

I am unable to accept the submission advanced by Mr. Coppel that s76Z(1), in so far as it identifies the ground of appeal, is to be characterised as a provision concerning the manner and form of the notice of appeal with no operative effect upon the role of the appeal tribunal. In my opinion, the legislature has, by delineating the ground of appeal in that way, also marked out the limit of the appeal tribunal's function. The appeal is not at large. it is more restricted than that - it is confined to the stated ground: see Bewley v. Cruickshanks (1984) 1 FCR 534 at 539-41; 53 ALR 205; Parker v. Australian National Railways Commission 17 October 1990, Federal Court of Australia, unreported).  That is not to say, however, that the Redeployment and Retirement Appeal Committee is, in determining that ground of appeal, limited to the material that was before the primary decision-maker.  Clearly that was not the Parliament's intention.  The committee is to have before it such material as the parties furnished to it pursuant to reg 27 of the Merit Protection (Australian Government Employees) Regulations but, in addition, it is required to make such inquires as it considers necessary into the matter before it (Merit Protection Act, s37(1)(a)) for and this purpose

it may take evidence on oath or affirmation (ibid, s24) while not being bound by the rules of evidence: ibid, s37(1)(d).  The legislation, however, does not confer on a redeployment and retirement appeal committee a general power to consider whether or not, in all the circumstances, the officer should be reduced in classification or retired.  It is not sufficient to warrant the committee revoking a notice given under s.76W that it has reached a different conclusion form that reached by the Secretary.  It may revoke such a notice if, and only if, it reaches the conclusion, on the material before it, that conclusion, on the material before it, that the reduction in classification or retirement, as the case may be, 'would be unreasonable'.  Further the committee's power is limited to confirming or revoking the notice given by the Secretary.  The committee may not, for example, in a case where the appeal is from the giving of a notice that the officer be retired from the Australian public service, direct that, in lieu of such retirement, the officer be reduced in classification."

I respectfully accept what Neaves J. said in that passage.  It follows from what is there said that the Appeal Committee was required to reach a conclusion as to whether the applicant's retirement, on the day on which the notice given to the applicant by the Secretary would be confirmed by the Appeal Committee, would be unreasonable, because that notice would not take effect until that day.  And in my opinion one of the considerations relevant to a determination of the reasonableness of retirement on that day is the existence or the non-existence on that day of a "relevant matter" in  relation to the applicant - whether or not, that is, the applicant is on that day "unable to perform .... her duties, or other duties appropriate to [her] classification, because of mental or physical incapacity".  If such an inability does not exist on that day, that would tend to induce a conclusion that retirement on that day would be unreasonable, even if at the time when the notice contemplated by s.76W was given that inability did exist.

A further consideration which may be relevant to the reasonableness of retirement on the day when the Appeal Committee is to confirm or revoke the Secretary's notice is the existence or non-existence on that day of what may be shortly called total and permanent incapacitation of the officer. The certification contemplated by s.54C of the Superannuation Act 1976 - that, if the officer is retired on the ground that, because of mental or physical condition, the officer is unable to perform his or her duties, he or she will be entitled to receive benefits under Division 4 of Part V of that Act - can be given by the Commonwealth Superannuation Board of Trustees No. 2 ("the No. 2 Board") only if the NO. 2 Board has approved the retirement of the officer on the ground of invalidity in accordance with Part IVA of that Act. And that approval can be given only if the No. 2 Board is satisfied that, he or she is "totally and permanelty incapacitated". Section 54B, a provision of Part IVA, reads:

"For the purposes of this Part a person is totally and permanelty incapacitated if, because of a mental or physical condition, it is unlikely that the person will ever be able to work in any employment or hold any office for which the person:

(a)  is reasonably qualified by education, training or experience; or

(b)  could become reasonably qualified after retraining."

If an Appeal Committee found an officer to be unable to perform any of the duties appropriate to his or her classification, because  of physical or mental incapacity, but also found the officer's physical or mental condition so greatly improved since the No.2 Board's certification, and so likely further to improve during the immediate future, that it was likely that the officer would soon be able to work, that in my opinion would be a consideration tending to show that retirement of the officer would be unreasonable.  On the other hand findings by an Appeal Committee that the officer was not only unable presently to perform any of the duties appropriate to his or her classification, by reason of physical or mental incapacity, but also was totally and permanently incapacitated, in the sense expounded by s.54B, would no doubt influence to a conclusion that retirement would not be unreasonable.

The Appeal Committee was constituted, in accordance with the requirements of s.23 of the Merit Protection (Australian Government Employees) Act 1984, by three persons. In this case only two of the members of the Appeal Committee concurred in the decision, which s.26 of that Act deems to be the decision of the Appeal Committee. The reasons for the decision of those two members do not include any express reference to paragraph 76W(6)(a) or to the sentence of which that paragraph consists. Nor do those reasons include any

reference to the question as to what duties, other than those the applicant had carried out during her employment at Repatriation General Hospital Heidelberg, would be appropriate to her classification.  That is not to say that the reasons are devoid of reference to the possibility that the applicant might be able, and could be directed, to perform duties other than those she had previously carried out.  In the first of the three numbered paragraphs (17, 18 and 19) which conclude the statement of reasons, and which are placed under a heading, "Conclusions", the following appears:

"(iii)  We were concerned at the extent to which the Hospital tried to transfer Mr Forge to a less critical area of work.  While these efforts appeared perfunctory, equally the Hospital does appear to be undergoing, or potentially undergoing, a significant reduction of clerical staff as amalgamated with another hospital proceeds:

(iv)  Despite adequate supervision, Ms Forge's standard of work was not to a standard appropriate to a Pharmacist in her position."

Whether the work of "clerical staff" at the Repatriation General Hospital Heidelberg was considered by the Appeal Committee to constitute duties appropriate to the applicant's classification does not appear.  A statement of the duties of officers of the applicant's classification employed at the Repatriation General Hospital Heidelberg, which was before the Appeal Committee, is in these terms:

"1.  Provide pharmaceutical services in the wards (excluding the Oncology/Haematology ward).  This includes:-

(a)  check twice daily, or as required, drug therapy charts for details of dosage, administration, possible drug interactions and pharmacological implications, suitability and safety of medication;

(b)  examine drug histories and pathology reports  where necessary, and discuss with prescriber any matter which is unclear or requires corrective action; in  particular, monitor adverse drug reactions;

(c)  provide advise on drug related matters to medical and nursing staff and refer the most complex questions to the Senior Pharmacist (Drug Information/Clinical Trials) [Science 3 (Pharmacist), Pos. No 2652];

(d)  participate in 'drug rounds' with specialists and other medical officers;

(e)  perform regular Ward Imprest checks, daily drug trolley checks and twice weekly Drug of Addiction Imprest checks; maintain correct supplies and ensure conformity with standards;

(f)  provide prescribed drugs not in Imprest;

(g)  counsel patients on drug usage and other drug related matters, particularly upon discharge;

(h)  provide appropriate drug supplies to patients on discharge.

2.   Participate in the pharmacy development programme including attendance at regular meetings, staff rotation and keeping abreast of new developments in pharmacy practice.

3.   Perform other general pharmaceutical duties as directed, eg. in relation to manufacturing, dispensing, cytotoxic preparation etc."

A reading of that statement does not suggest that the work of

"clerical staff" would include duties appropriate to the applicant's classification.

I set out now the whole of that part of the statement of the majority of the Appeal Committee's reasons which is placed under the heading "Conclusions":

"17.Factors influencing the majority of the Committee were:

(i)  Medical evidence was conflicting but the weight of evidence from different medical sources inclined us to the views put by Dr Rose and the Australian Government Medical Officer, Dr Harries;

(ii)The difficult staff interactions referred to by Ms McMahon were consistently referred to in evidence given by staff members from the Pharmacy Department.  All staff members referred to disruption to work routine and stress from working with Mr Forge and to the close supervision needed;

(iii) We were concerned at the extent to which the Hospital tried to transfer Ms Forge to a less critical area of work.  While these efforts appeared perfunctory, equally the Hospital does appear to be undergoing, or potentially undergoing, a significant reduction of clerical staff, as amalgamation with another hospital proceeds;

(iv)Despite adequate supervision, Ms Forge's standard of work was not to a standard appropriate to a Pharmacist in her position;

(v)  Her manner of relating to staff in the Pharmacy Department and the wider Hospital was not adequate and at times was intimidating and rude;

(vi)Although Ms Forge recognises that she has had a psychological illness, she does not accept that her illness is on-going and needs treatment and that, if there were no compulsion to continue treatment, she would not be likely to do so;

(vii) While, as stated at the commencement of these reasons, Ms Force presents in a rational fashion, it is possible that this favourable impression arises from her current medication;

(viii) Ms Forge is insighltess to her failings as pointed out by various supervisors and she has not used constructive criticism from them to improve her performance.  We do have a concern that it is impossible to give a clear prognosis for a psychological illness.  However, lack of insight is used as one prognostic indicator.

18.  The Committee considered the definition of 'Totally and Permanently Incapacitated' as contained in the 'Fitness For Continued Duty' guidelines issued by the Public Service Commission which reads as follow:

'"Totally  and  Permanently incapacitated" in relation to an officer means that the officer is unlikely ever to be able to work again in a job for which the officers is reasonably qualified by education, training or experience or for which the officer could reasonably be qualified after retraining.'

19.  The considerations raised in these reasons and, more particularly, in Paragraph 17 lead the majority of the committee to conclude that Ms Forge is totally and permanently incapacitated in terms of the above definition and that the decision of the Delegate to issue the Notice of Retirement under Section 76W of the Public Service Act was not unreasonable."

It will be observed that the conclusion, that "the decision of the Delegate to issue the Notice of Retirement under Section 76W of the Public Service Act was not unreasonable", does not determine the matter before the Appeal Committee, which is required to determine whether at the time the Appeal Committee makes its decision retirement would be unreasonable.  However, no attach was made on the failure of the majority of the Appeal Committee to state in the reasons

the question it has for determination.  Indeed one of the grounds of review stated in the amended application was that the members of the Appeal Committee had "failed to direct their decision making solely to whether the original review was 'reasonable or unreasonable'."  That failure was said to constitute error of law.

Another error of law assigned by the amended application was expressed thus:

"In reaching the decision the Redeployment and Retirement Appeal Committee applied a written administrative instruction published pursuant to s.76W Public Service Act 1922 in the Government Gazette on 4 December 1990 which, by reference to the definition of 'totally and permanently incapacitated' was inconsistent with the definition of 'relevant matter' found in s.76W(6)(a) of the Public Service Act 1922 and therefore not authorised by the Act."

Section 76X of the Public Service Act 1922 provides:

"(1)The Board may cause to be published in the Gazette written administrative instructions, not inconsistent with this Act, in relation to the exercise of powers conferred on Secretaries by this Division.

(2)  The Board may, by notice in writing, give to a Secretary directions in relation to the exercise of powers conferred on Secretaries by this Division.

(3)  A Secretary exercising, or proposing to exercise, a power conferred by this Division:

(a)  shall comply with any administrative instructions expressed to be binding on Secretaries and with any directions given to the Secretary under subsection (2) that are

expressed to be binding; and

(b)  shall have regard to any other administrative instructions, and to any other directions given to the Secretary under subsection (2)."

The expression "the Board" is to be construed as a reference to the Public Service Commissioner : see s.11(7) of the Administrative Arrangements Act 1987,. Sections 76W, 76WA and 76X are in Division 8C of Part III of the Public Service Act 1922. The power conferred by s.76X was exercised by a notice in writing dated 4 December 1990. It is to that document that reference is intended in paragraph 18 of the reasons of the majority of the Appeal Committee. It will be observed that the definition which is quoted in paragraph 18 is similar to the provisions of s.54B of the Superannuation Act 1976. The defined expression is used in Part 5 of the Schedule to the Public Service Commissioner's notice which specifies the procedures to be followed by a Secretary when a likelihood of total and permanent incapacity in an officer has been apprehended. Section 76X does not in my opinion authorise, and the notice does not purport to give, any instruction or "guideline" to persons hearing and determining an appeal under s.76Z, nor the No. 2 Board in relation to the exercise of the functions conferred on it by the Superannuation Act 1976. The terms of paragraph 18 and 19 might excite an apprehension that the majority of the Appeal Committee had a different view. But that possibility was not pressed in submission. The error assigned was rather that the majority asked itself the wrong question. They asked themselves, according to the

submission, whether the applicant is "totally and permanelty incapacitated", in the sense which s.54B of the Superannuation Act 1976 and the definition in the Public Service Commissioner's notice supply, and not whether she is "unable to perform .... her duties, or other duties appropriate to [her] classification, because of mental or physical incapacity". Those are two different questions. They are both questions which an Appeal Committee hearing an appeal under s.76Z of the Public Service Act 1922 is required to consider, in my opinion, for the reasons I have previously stated. But the question remains whether error on the part of the majority is demonstrated. Can it be concluded that the majority failed to consider the question which s.76W(6)(a) raises for the Secretary's consideration, and which the requirements of s.76Z raise for an Appeal Committee's consideration? I do not think it can, in the circumstances of this case. The question which s.54B poses, which I will call "the first question", requires prophecy about a future state of affairs : the likelihood of an ability to work in the future. The question which s.76W(6)(a) poses is concerned with present ability to work. But in the factual circumstances of this case no conclusion that the applicant is totally and permanently incapacitated could be reached unless it had been concluded that she is presently unable to work. The first question is concerned with ability to work in any employment of a description contained in paragraph 54B(a) or 54B(b). A conclusion of inability to work in any such employment necessarily entails, in the factual circumstances of this case, a conclusion of inability to perform any of the duties appropriate to the applicant's classification. The requirement of casual connection between inability to work and a mental or physical condition, specified in the first question, and between inability to work and physical or mental incapacity, specified in the second question, are in the circumstances of this case not distinguishable.

In support of other grounds of the applications attention was drawn to a substantial body of evidence that depicted the applicant as a cause of distress, to other officers with whom she worked, by behaviour critical of, or hostile to, them. There was evidence that those characteristics had been manifested before the applicant had become ill and had been manifested again after she had suffered her acute mental illnesses. In the latter period the applicant had been supervised in her work by one or other of several officers and, because of the close association which that supervision entailed, their distress caused by behaviour of that kind had been greater than in the former period. It was submitted that behaviour did not constitute a "mental incapacity" : it was not the manifestation of any mental disorder and it did not incapacitate her for work as a pharmacist. It might be said that, if the majority of the Appeal Committee had directed their minds to the requirement expressed in paragraph 76W(6)(a) by the words "because of mental incapacity", the conclusion might have been reached that the condition expressed in that paragraph was not satisfied. On the other hand, the words of s.54B - "incapacitated, because of a mental .... condition" - might be thought less likely to evoke advertence to the distinction between characteristics of personality and mental disorder. On a consideration of the evidence and of the statement of reasons, however, I am unable to conclude that the majority of the Appeal Committee failed to keep the distinction in mind or failed to keep in mind the requirement of paragraph 76W(6)(a) that the inability to perform duties appropriate to the applicant's classification must have as its cause a disorder of the mind. The witnesses who gave evidence of the applicant's acerbity in her professional relations with them at work also gave evidence which justified the finding stated in sub-paragraph 17(iv) of the statement of the reasons of the majority. The psychiatrist whose opinion about the applicant's mental state and ability to work the majority preferred, Dr. Rose, was of the opinion, which was set out in the statement of the majority's reasons, that the applicant's illness had "interfered little if any with her rational and logical powers." That opinion is consistent with the evidence of the pharmacists who worked with her that her professional work has sometimes entirely satisfactory and at other times quite unsatisfactory. Erratic was the description applied by several witnesses to the standard of her professional work. It was that characteristic of the applicant's work which made necessary the regime of supervision which was maintained. And it was that regime which brought the applicant into more frequent communication with other pharmacists than would have been necessary if that degree of supervision had not been exercised. Most of the applicant's duties, however, required frequent discussion between her and other officers employed in the hospital, both those employed in the pharmacy sub-section and those otherwise employed, as well as some discussion between her and patients. To the extent that the applicant's acerbity sharpened after the onset of her illness - and the evidence was that extent was substantial - her mental disorder might reasonably be found to be the cause of the exacerbation. In so far as the conclusion that the applicant was unable to perform duties appropriate to her classification rested on the effect her behaviour had on fellow employees, a causal relationship between the behaviour and her mental incapacity could be established by the evidence, in my opinion. And if the performance of the duties appropriate to the officer's classification require conversational communication with other officers, as the applicant's duties did, behaviour in conversation which over a period causes reasonable fellow officers to suffer serious distress may in my opinion be found to constitute an inability to work in the officer manifesting the behaviour, in the sense both of section 54B of the Superannuation Act 1922 and of paragraph 76W(6)(a) of the Public Service Act 1922. Of course, questions of degree will be involved in evaluating the behaviour and the consequent distress. No judgment of inability to work could be based on anything less than behaviour judged likely to cause, and which does in fact cause, serious distress to reasonable persons.

For the foregoing reasons I am unable to uphold the ground advanced that the majority of the Committee had taken into account an irrelevant consideration in having regard to the effect of the applicant's behaviour on those with whom she worked. It was another ground of the application that the decision of the majority was an exercise of the power conferred by s.76Z so unreasonable that no reasonable person could have so exercised the power. One of the particulars suggested in support of the ground was the use made by the majority, in their reasoning to the decision, of the effect of the applicant's behaviour on fellow employees.

I do not take from the statement of the majority's reasons a conclusion that her behaviour had of itself constituted an inability in her to work, by reason of the distress that behaviour caused.  The importance of the circumstances that her behaviour caused distress was, according to my understanding of those reasons, that until the applicant's performance of her duties improved "to a standard appropriate to a Pharmacist in her position" (para. 17(iv) of the reasons) she would have to be supervised in the performance of those duties (see para. 17(ii)), and that the distressing behaviour would hinder the achievement of one of the purposes of the supervision, namely the improvement of her performance of those duties by means of her use of the "constructive criticism" of her supervisors (see para. 17(viii)).  There is in my opinion no unreasonableness in having regard to those considerations.

The conclusion state in paragraph 17(i) of the statement of the majority's reasons was said to be unreasonable.  It was said that five of the six psychiatrists whose opinions (which were expressed only in written reports, not via voce before the Appeal Committee) were considered by the Appeal Committee thought that she could, or that she might be able to, work as a pharmacist.  Only Dr. Rose had expressed a contrary opinion.  The weight of evidence, it was submitted, was clearly against a conclusion that the applicant was totally and permanently incapacitated.

Having carefully considered the evidence before the Appeal Committee I am unable to find that the conclusion stated in the first clause of paragraph 19 of the reasons is one so unreasonable that no reasonable person could have reached it.  The medical opinions had to be weighed in the light of the sworn evidence by members of the staff of the hospital about the applicant's behaviour.  The submission as to the unreasonableness of the conclusion was said to be strengthened by the circumstances that evidence about the applicant's behaviour at work was of behaviour which occurred more than two years before the conclusion was reached, the applicant not having worked at the hospital since early May 1992.  Having considered that circumstances in the context of all the evidence, I am yet unable to uphold the submission.

The application must be dismissed.

I certify that this and the 20 preceding pages are a true copy of the Reasons for Judgment of Honourable Justice Jenkinson.

Associate

Date:     17 March, 1995

Counsel for the Applicant         :    Mr. T.V. Hurley

Solicitors for the Applicant      :    Baker & Armstrong

Counsel for the Respondent        :    Mr. R.S. Huttner

(Solicitor)

Solicitor for the Respondent      :    Australian Government

Solicitor

Dates of Hearing                  :    23 and 24 February, 1995

Date of Judgment                  :    17 March, 1995