Jione and BHP Billiton Petroleum Pty Ltd

[2002] AATA 878

DECISION AND REASONS FOR DECISION [2002] AATA 878

ADMINISTRATIVE APPEALS TRIBUNAL      )

)       Q2002/663,664
  )          Q2002/679

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      FUATA PENE JIONE        
  Applicant
           And    BHP BILLITON PETROLEUM PTY LTD          
  Respondent

DECISION

Tribunal      Mr. D.W. Muller, Deputy President  Dr. K.P. Kennedy, OBE, Member Major General J.N. Stein, AO Rtd, Member          

Date2 October 2002 

PlaceBrisbane

Decision      Q2002/663:  The Tribunal affirms the decision under review in relation to the calculation of weekly compensation payments made to the applicant. Q2002/664:  The Tribunal affirms the decision to refuse to pay for travel expenses from Fiji to Australia for medical treatment.  Q2002/679: The Tribunal sets aside the decision under review and determines that: (i) The applicant did not make an election under section 55 of the Seafarers Rehabilitation and Compensation Act 1992. (ii) The applicant has a work related 20% whole person permanent impairment. (iii) The respondent to pay the applicant's costs of application Q2002/679 as per the General Practice Direction and limited to no more than three days for the hearing.         
  (Signed)
  D.W. MULLER
  DEPUTY PRESIDENT

CATCHWORDS
COMPENSATION – calculation of weekly benefits, superannuation, travel expenses not reasonably incurred – employee living overseas – compensation for permanent impairment – election while in poor psychiatric state
Seafarers Rehabilitation and Compensation Act 1992: 28, 35, 39, 41, 55

REASONS FOR DECISION

Mr. D.W. Muller, Deputy President   

1. Fuata Pene Jione, the applicant, suffers from a work-related psychiatric illness, major depression.  This review covers three areas of dispute which Mr. Jione has with the authority handling his workers' compensation matters.

   Q2002/663: Mr. Jione's weekly payments have been calculated using the formula in subsection 35(3) of the Seafarers Rehabilitation and Compensation Act 1992, namely:
   "35(3)  [Formula]  The amount of compensation is an amount worked out using the formula:

   Unadjusted          [  (     Super-  Amount        )  ]
   Amount of           [  (     annuation                 not rolled      )         Super            ]
   Compensation  -  [  (        amount                   over              )         annuation      ]
     [  (       _________     x        _________     )  +     contri-           ]
     [  (           520  Lump sum     )         butions         ]
     [  (          benefit )  ]

   where:
   "Unadjusted amount of compensation " means the amount of compensation that would have been payable to the employee for a week if:
   (a)       section 31, other than subsection 31(8), had applied to the employee;  and
   (b)       the week were a week referred to in subsection 31(4);
   "Amount not rolled-over" means the amount not rolled-over or withdrawn from the superannuation fund or approved deposit fund to which the lump sum benefit was rolled-over;
   "Lump sum benefit" means the amount of the lump sum benefit received by the employee;
   "Superannuation amount" means the superannuation amount received by the employee as a lump sum.
   35(4)  [Meaning]  In this section:
   "approved deposit fund" has the same meaning as in section 34;
   "rolled –over" has the same meaning as in section 34;
   "superannuation fund" has the same meaning as in section 34.
   (34(4) "superannuation fund" has the same meaning as in Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act 1936.)

   Mr. Jione claims that his weekly payments should not have been reduced when he withdrew funds from a deposit fund into which a lump sum benefit had been placed, because the payment to him from the respondent's superannuation fund, as a result of a claim that he is permanently disabled, was in the nature of an insurance payment, not a superannuation benefit.

   Q2002/664:  Mr. Jione claims that his psychiatric health requires him to live in the comfortable, familiar surroundings of Fiji but that the only psychiatrist who can effectively treat him, practises in the Sunshine Coast of Queensland.  Consequently, Mr. Jione claims air fares from Fiji to Australia and return, monthly, as travel expenses incurred in obtaining medical treatment.  This claim has been rejected on a number of grounds but principally because the Act only allows for this type of travel expense to be paid if it is "reasonably incurred" by the employee and the employee resides in Australia.

   "28(6)  [Expenditure reasonably incurred] 
   Subject to subsection (7), if compensation  in respect of the cost of medical treatment is payable under subsection (1), the employer is liable to pay to the employee an amount of compensation in respect of expenditure reasonably incurred by the employee in doing either or both of the following:
   (a) making a journey, necessary for the purpose of obtaining the treatment, from the place in Australia where the employee is residing to the place where the treatment is to be obtained;
   …."

   Q2002/679:  Mr. Jione claims that his psychiatric illness has resulted in a permanent impairment and that he is entitled to compensation pursuant to sections 39 and 41 of the Act.
   "39(1)  [Entitlement]  If an injury to an employee results in a permanent impairment, compensation is payable to the employee for the injury.
   41(1)  [Liability]  If an injury to an employee results in a permanent impairment and compensation is payable for the injury under section 39, the employer is liable to pay additional compensation in accordance with this section to the employee for any non-economic loss suffered by the employee as a result of the injury or impairment."

   The respondent has rejected the claim on the basis that Mr. Jione made an irrevocable election to sue for damages within the meaning of those terms in s.55 of the Act, and hence is not entitled to compensation under s.39 and 41 of the Act.
   "55(1)  [Conditions for election]  If:
   (a)  compensation is payable under section 39, 40 or 41 in respect of an injury to an employee;  and
   (b)  the employee's employer or another employee would, apart from subsection 54(1), be liable for damages for any non-economic loss suffered by the employee because of the injury;
   the employee may make an election in accordance with subsection (2) to institute an action or proceeding against the employer or other employee for damages for that non-economic loss.
   55(2)  [Election requirements]  An election:
   (a)  must be made before an amount of compensation is paid to an employee under section 39, 40 or 41 in respect of the injury;  and
   (b)  must be given to the employer in respect of the injury;  and
   (c)  must be in writing.
   55(3)  [Irrevocable]  An election is irrevocable."

1. The following background matters are not in dispute:

   (i)Fuata Pene Jione, was born in Fiji on 4 July 1960.  He was the fifth child in a family of eleven children.  He was educated at a Methodist church mission school in Fiji.  He attended the University of the South Pacific in Fiji.  His father was a farmer who had a connection with Burns Philp and this connection with ships sparked an ambition in Mr. Jione to take up a sea career.

   (ii)In 1980, at the age of 20, Mr. Jione came to Australia to attend Launceston Maritime College.  This was with the assistance of a government scholarship.  The course was for four years, that is, between 1980 and 1984.  He received a Diploma in Nautical Science and completed the theory for his Masters Ticket.

   (iii)Mr. Jione worked for Associated Steamships, completed his apprenticeship and received his Masters Certificate.

   (iv)In 1989, Mr. Jione began work with BHP.  He was promoted and eventually got to the position of Sea Captain of a floating production tanker.  This involved working one month on and one month off.

   (v)He married in 1986.  The family moved to Mooloolaba where they resided when he was away.

   (vi)In early 1994, Mr. Jione was given the job of taking delivery of a "high tech vessel" from a Korean shipyard and sailing it to a position off the coast of Western Australia.  The ship was a floating oil refinery which treated oil as it came out of the sea bed by way of an off-shore rig.  The vessel was said to be worth about $600M.

   (vii)There were technical problems with the new vessel which led to breakdowns and consequential repairs to pumps and maintenance work on the tanks.  A dispute arose between Mr. Jione and his second officer about the safety of the hydrocarbon levels in the tanks.  The second officer alleged that Mr. Jione was either incompetent or negligent and that there was potential for a large scale disaster.

   (viii)Between 1994 and the end of 1997, the second officer agitated his claims to the respondent company, the Transport Minister, the Department of Mines of Western Australia, a Senator and the ABC (which ran a television exposé).  A total of five separate enquiries were undertaken by different authorities.  Mr. Jione was cleared of any wrongdoing in every one of the enquiries.  Nevertheless, the strain on him had taken its toll.

   (ix)As a last straw, in December 1997, the respondent directed Mr. Jione to resume work with the second officer who had caused him all the trouble.  At this point Mr. Jione developed extreme depression with extreme mood swings.

   (x)Mr. Jione has been diagnosed as suffering from a major depression.  His illness has been accepted as having been precipitated by his work as a captain on the respondent's ship.  He has not worked since 18 December 1997.

   (xi)Mr. Jione received full pay until July 1998.  He then received weekly workers' compensation payments.

   (xii)Mr. Jione ceased to be employed by the Respondent on 6 July 1999.

   Q2002/663:  The calculation of Mr. Jione's weekly payments

2. Mr. Jione joined the BHP Superannuation Fund (which became the BHP Billiton Superannuation Fund on 1 July 2001) in 1989.

3. On 29 September 1999, Mr. Jione received $72,066.97 as "unpreserved benefits" from the BHP Superannuation Fund.

4. On 29 August 2000, Mr. Jione received $4,181.04 as "unpreserved benefits" from the BHP Superannuation Fund.

5. Prior to the withdrawal of 29 September 1999, Mr. Jione's balance in the Fund stood at $111,830.07.

6. In late 2000, Mr. Jione claimed for a Total and Permanent Disablement benefit from the BHP Superannuation Fund.  The Trustees of the Fund rejected his claim.  Mr. Jione successfully appealed to the Superannuation Complaints Tribunal, which heard his case on 15 February 2001.

7. Mr. Jione became entitled to receive $923,952.23.  On 26 March 2001, Mr. Jione took $100,000 in cash from the Fund and rolled-over the balance of $823,952.23.

8. Mr. Jione has made the following further withdrawals from the roll-over amount.

   17 April 2001:          $ 20,000

   23 May 2001:           $260,000

   28 August 2001:      $ 60,000

9. Out of the $923,952.23 benefit, Mr. Jione has withdrawn a total of $440,000.  This means that his weekly compensation payments, calculated in accordance with the formula in s.35(3) of the Act, comes to a negative amount.  On 28 August 2001 the calculation was done on the following figures:

   $1,236.15 – [ ($923,952.23           x         $440,000.00 ) + $49.45 ]
                      [       (     520               $483,952.23 )               ]

   which gave a result of minus $428.62.

1. It is clear that Mr. Jione received the benefit of $923.952.23 from the BHP Superannuation Fund because he was a member of the Fund.  It was a benefit from a superannuation fund.

2. The argument put on behalf of the applicant was to the effect that the Trustees of superannuation funds usually have the power to take out policies or contracts with insurance companies to secure the benefits of members of the fund.  Consequently, the benefit paid may come from an insurance company and not from the superannuation fund itself.  Hence, it was argued, the benefit paid was not from a superannuation fund.

3. In this case the Trustee of the BHP Billiton Superannuation Fund had the authority to take out insurance policies to secure the benefits.  It also had the authority to "self insure" the benefits by maintaining a "Death and Disablement Reserve Account".  On the information available to the Tribunal the Fund is large enough to be able to "self insure" without the need to take outside insurance.

4. It is the view of the Tribunal that it is immaterial as to whether the Fund set aside funds in a reserve account, or whether the Fund took out policies of insurance to secure the benefits.  The benefit paid to Mr. Jione was paid by his superannuation fund and consequently was a superannuation amount received by him as a lump sum, within the meaning of those terms in s.35 of the Act.

5. The decision which set out the method by which Mr. Jione's weekly compensation payments are calculated, is affirmed.

Q2002/664:  Travel expenses, Fiji to Australia for medical treatment

1. The essence of this claim is that Mr. Jione prefers to live in Fiji because he has family there and it is better for his mental health to live in familiar surroundings.  However, he has been treated for some time by a psychiatrist, Dr. Bird, who is based on the Sunshine Coast, and he cannot cope with starting afresh with a new treating specialist.  Mr. Jione also claims that he could not get proper psychiatric care in Fiji.  Mr. Jione claims that it is reasonable for him to be paid airfares from Fiji to Australia once per month to attend Dr. Bird.

2. Dr. Bird first started treating Mr. Jione in February 1998, when Mr. Jione was living with his wife and daughter on the Sunshine Coast.  Dr. Bird either saw or reported on Mr. Jione on about 22 occasions from February 1998 to June 1999.  Shortly after a consultation on 7 June 1999, Mr. Jione wrote to Dr. Bird to terminate Dr.  Bird's services.

3. Mr. Jione separated from his wife and daughter in December 1998.  He bought a house in a Brisbane suburb.  He then allowed his sister and her family to live in the Brisbane house with him.  He also saw his wife and daughter on a fairly regular basis.

4. Mr. Jione renewed his relationship with Dr. Bird when he wrote the following letter on 28 February 2000.

   "I am writing to apologise for the hurt I have caused you when I left your care in 1999.
   I am deeply sorry because now I have come to realize that all along you had been very concerned with me as your private patient and the deteriorated state of health I was in.  It is your professional treatment that has guided me to where I am now after undergoing more than my fair share of five Psychiatric assessments in 1999.  The medical reports including the reports from yourself has been very helpful in easing the pain since May 1994.  I am so drained out that the only avenue left for me to end the May 1994 saga is to submit my compensation claim to court for hearing and settlement by an independent judge as I no longer have legal representation and confidence in dealing with the legal profession and BHP.  The matter is currently before the Commonwealth Law courts in Brisbane for preliminary hearing.  The office of the court is assisting me as they only require medical opinion to effect a final settlement.
   I may at some stage of the court proceedings require you to give evidence if BHP and other parties challenge the compensation claim I currently have before BHP. 
   On February 17th 2000 I finally made the decision to finalize all work matters and return to Rotuma Island (Fiji) to live and interact with my people and this has helped ease the depressive moods.
   Please accept my apology and if I do not hear from you than I will understand considering I had been at fault in leaving your professional care."

   Dr. Bird did not see Mr. Jione until 29 November 2000, when he supplied Mr. Jione with a medical certificate to say that he would not be fit for work until 29 May 2001.

1. Mr. Jione now has a new partner in his life and he lives permanently in Fiji.

2. The Tribunal heard evidence to the effect that there are at least three specialist psychiatrists practising in Fiji.  Mr. Jione's Fijian General Practitioner has recommended to Mr. Jione that one of the Fijian psychiatrists would be suitable to treat him.  Mr. Jione has not made a proper effort to attend the recommended psychiatrist.

3. When the claim for airfares was first made, the respondent sought substantiation of the expenses from Mr. Jione.  Mr. Jione produced seven airline tickets which showed the following.

   (i)5 December 2000 :           Brisbane to Sydney to Nadi

   14 January 2001 :             Nadi to Sydney to Brisbane
   (nearly six weeks in Fiji)

   (ii)13 February 2001:            Brisbane to Sydney to Nadi

   (approximately one month in Australia)
   24 February 2001:            Nadi to Sydney to Brisbane
   (just over one week in Fiji)

(iii)2 March 2001:                   Sydney to Nadi

(about one week in Australia)
6 March 2001:                   Nadi to Brisbane
(three days in Fiji)

(iv)24 March 2001:                 Brisbane to Sydney to Nadi

(2½ weeks in Australia)
4 April 2001:  Nadi to Sydney to Brisbane
(1½ weeks in Fiji)

(v)6 April 2001:  Brisbane to Nadi

(one day in Australia)
5 May 2001:  Nadi to Brisbane
(one month in Fiji)

(vi)22 June 2001:                   Brisbane to Nadi

(6½ weeks in Australia)
29 June 2001:                   Nadi to Brisbane
(one week in Fiji)

(vii)21 September 2001:        Nadi to Brisbane

(no explanation as to when he went to Fiji)
2 October 2001:                Brisbane to Nadi
(1½ weeks in Australia)

The Tribunal observed during the hearing that the pattern shown by the airline tickets does not show that Mr. Jione was living in Fiji and travelling to Australia for medical treatment, but rather that he was spending about equal time in Australia and Fiji, with a little more time in Australia than in Fiji.  Mr. Jione responded by saying that when he was in Australia he also took time to see his daughter, sister and brother who all live in Australia.

1. The Tribunal is not satisfied that there is no psychiatrist in Fiji who is suitable to treat Mr. Jione.  Furthermore, the Tribunal takes the view that if Mr. Jione lives in Fiji he should have a psychiatrist in Fiji who is close at hand in the event of an emergency.

2. The Tribunal is also of the view that if a recipient of workers' compensation entitlements moves to a new location which is a significant distance from their original treating medical practitioner then any expenditure incurred by the employee in making a journey for the purpose of obtaining treatment by the original doctor, is not reasonably incurred within the meaning of that term in s.28(6) of the Act.  The reasonable expectation would be that the employee would obtain the services of a new medical practitioner in their new location.

3. Professor Nurcombe, psychiatrist, gave evidence that it would not be desirable for Mr. Jione to have two psychiatrists treating him, that is, one in Fiji and one in Australia.

4. Finally, on this question, s.28(6) provides for payment of expenses incurred by the employee in  travelling from the place in Australia where the employee is residing.  It makes no provision for employees who choose to live overseas.

5. The decision to refuse to pay for travel expenses from Fiji to Australia for medical treatment is affirmed.

Q2002/679:  Compensation for permanent impairment and an election to institute proceedings against the employer

1. The Respondent has conceded that medical opinions obtained during the course of these proceedings indicate that:

   (i)Mr. Jione's psychiatric condition has resulted in a permanent impairment.

   (ii)Although some of Mr. Jione's permanent impairment is due to his marital breakup and perceived problems with his litigation, a significant degree of his permanent impairment is due to his employment with the Respondent.

   (iii)The degree of permanent impairment due to his employment is 20% under the provisions of the approved Guide.

2. Two psychiatrists who gave evidence at the Tribunal, Professor Nurcombe and Dr. Grant, made assessments of Mr. Jione's whole person permanent impairment.  Dr. Grant used the tables of the American Psychiatrists Association and made an assessment of 30%.  Professor Nurcombe addressed the approved Guide and made an assessment of between 25% and 30%.  Professor Nurcombe also addressed the issue of the contribution of the marital breakup and the stress of litigation and he put a figure of 20% contribution attributable to those factors.

1. The Tribunal is satisfied that the figure of 20% whole person permanent impairment due to employment is appropriate.

THE ELECTION ISSUE

1. The Respondent submitted that there were two documents written by Mr. Jione which came within the ambit of the provisions relating to the making of an election under s.55 of the Act.

   (i)A letter written by Mr. Jione to the Respondent on 9 June 1999 in which Mr. Jione said (among a lot of other things):

• "(1) – Please find documentation for my reasons for a re-consideration.

• (2) – I also notify my employer that pursuant to section 39 & 41 of the Seafarer's Act of 1992 I make an ELECTION under section 55 to receive damages for my Work Injury.  I will advise you of the law firm to assist me in this matter and when court proceeding's have commenced under the requirements of section 56 and 57.

• (3) – I am no longer under the care of Psychiatrist Dr. P. Bird following the notification dated May 10th 1999 for the illness alleged to have occurred on or before May 29th 1999.  I am receiving medical treatment from a General Practitioner and will seek ongoing counselling from a Psychologist and from Marion Lauder of (CRS).  I also advise my employer that the Medical files in the care of Dr .P. Bird are my property and Dr. P. Bird under the freedom of information Act must advise me if any medical information is to be released.

• (4) – There is no rehabilitation program to return me to paid employment because the May 1994 issues and settlement of suitable damages is still outstanding and that is the responsibility of BHP Petroleum.

• In the notice for the re-consideration I request my right to receive my work entitlements immediately which is separate to my entitlements to worker's compensation under Seafarer's Act 1992.  I also advise you that I will exercise my right for the application of Section (89) and Section 4(3) of the Seafarer's and Rehabilitation Act of 1992 for receipt of ongoing compensation under the Act of 1992.

• I also advise that I am seeking legal advise to pursue Common Law Action for damages for breach of contract and professional negligence against anyone involved in the handling and management of my Work Injury and Psychological damage."

(ii)A letter written by Mr. Jione to the Respondent's solicitors on 24 November 2000.

"By way of service please find a sealed copy of my defense and counterclaim brought against Boyce Garrick lawyers and yourself the representative of my former employer BHP Petroleum Pty. Ltd.
This is also notification under section 56 of the Seafarers Act of 1992.  I will proceed by way of this counterclaim to recover the maximum amount of $138,570.52 payable for pain and suffering under section 55."

1. It was submitted on behalf of Mr. Jione that during 1999 and 2000 his psychiatric illness was so severe that he was in no state to make sensible reasoned decisions about important matters in his life.  It was submitted that the "elections" relied upon by the Respondent were therefore not true elections.

2. The material placed before theTribunal indicates that in 1999 Mr. Jione was given very sound legal advice about the avenues open to him for seeking compensation and damages and his prospects of success.  It is also clear that in 1999 and 2000 Mr. Jione had a belief that he was entitled to millions of dollars in damages or compensation and that any lawyer who attempted to advise him otherwise was regarded by him as a traitor who was being paid by BHP to cheat him out of his entitlements.  It is also clear that he did not understand that an "election" to sue was an alternative to a claim for lump sum under s.39 and 41.  Some examples of the events and correspondence of 1999 and 2000 illustrate the above points:

   (i)On at least two occasions prior to 6 January 1999, Mr. Jione met with Dr. Michael White, QC, to discuss his options.  The meetings were arranged through his solicitor, Boyce Garrick.  The Tribunal has no doubt that Dr. White gave Mr. Jione sound advice as to what his course of action should be.  Nevertheless, on 6 January 1999, Mr. Jione wrote a letter to his solicitor, which letter indicated that Mr. Jione thought that his case was going to be heard in the AAT or the Federal Court and that he was expecting to receive compensation totalling over $4M.

   (ii)Mr. Jione had at least four solicitors firms acting for him during 1998 through to 2000, at different times.  He fell out with each firm in turn when he did not accept the advice that they were giving him.  He thought that they had a "conflict of interest" because they seemed to him to be siding with BHP.

   (iii)On 14 June 1999, Mr. Jione wrote to the Respondent to advise that he had one solicitor acting for him to pursue compensation under the Act and another solicitor to initiate common law actions which he intended to pursue in the Supreme Courts of Victoria and Queensland.

   (iv)On 18 August 1999, the solicitors who were acting for Mr. Jione in relation to his compensation claim under the Act wrote to the Respondent's solicitors.  The letter contained the following passage.

   "Our client has instructed us that he does not intend to pursue common law proceedings but rather, he simply intends to pursue his entitlements under the Seafarer's Compensation Act."

(v)10 February 2000.  Mr. Jione to solicitor Bryce Garrick.

"Firstly, I wish to advise that your firm undertake only legal representation as per the signed client agreement dated 14.04.1999 and 15.04.1999 on Workers compensation matters under the Seafarers Act of 1992 against BHP Petroleum Pty Ltd.
Secondly, I will not agree to yourself meeting with BHP on my behalf and in my absence until you address the following compensation claim issues.
A detailed written advice to me based on the medical reports in your possession of my entitlements for compensation under the Seafarers Act of 1992.
A written explanation to me as to why you have not responded to BHP's request for information which arose from my request for a re-consideration from the determination made by BHP Petroleum under the Seafarers Act dated May 10th 1999.  This was provided to yourself on July 27th 1999 and was to be prepared for submission to BHP through yourself.
That I reserve my right to seek independent legal advice on the above matters."

(vi)21 February 2000.  Mr. Jione to Respondent's solicitors.

"Seafarers Claim Against BHP Petroleum Pty Ltd
I am writing to advise you of the following matters.
I am exercising my legal right and also as directed by the Assistant Registrar of the Administrative Appeals Tribunal on February 21st 2000 to show that I have taken reasonable effort to meet my request for a review of the Decision made on May 10th 1999 and May 20th 1998.
I no longer have confidence with the people who have dealt with my injury claim and treatment as under heavy medication the symptoms are still recurring.
That Boyce Garrick Lawyers no longer represent me on the above matters.  Please find copy of letter."

(vii)7 March 2000.  Mr. Jione to Respondent's solicitors.

"Re:  Seafarers Claim Against BHP Petroleum Pty Ltd
I wish to advise you of the following matters

• That Dr. James Wright no longer provide Psychiatric treatment due to the ongoing stress he has caused me and the aggravation of my Psychiatric condition.  Ongoing Psychiatric treatment will be provided by Dr. Vorbach.  I will seek counselling from Dr. Philip Bird prior to my relocation to Fiji/Rotuma.

• As I will be permanently residing in Fiji/Rotuma I have sort legal representation from the Chief Justice of the High Court in Fiji to assist me in any financial settlement and/or agreements to be finalized on April 12th 2000.  I would expect any settlement matters to be finalized within seven days.

• That I reserve my right to take further litigation on all matters currently before BHP Petroleum Management after April 12th 2000.

• I enclose documentation from Boyce Garrick lawyers who has dealt with you regarding my work injury matters and claims."

(viii)15 March 2000.  Mr. Jione to Respondent's solicitors.

"Re:  Seafarers Claim Against BHP Petroleum Pty Ltd
Thank you for your fax dated March 14th 1999.
I am seeking from the Administrative Appeals Tribunal that a determination is made for compensation under

• Section 39 and 41.

• And Settlement for lump sum future economic losses arising from my injury.

• And to finally get rid of your client in any shape or form who is continuing to cause damage to me.  This is the Psychological treatment that is taking long to achieve.

• That the Tribunal consider all the matters set out in my request for a review of BHP's determination dated May 29th 1998 and May 10th 1999.

  Regardless of the action your client takes from here I will appeal any Tribunal decision to the Full bench of the Federal court for repeated harassment, intimidation and discrimination for causing and aggravation of injury and for the application of the Racial Discrimination Act of 1974 and the Seafarers and Rehabilitation Act of 1992.
  As for my current health condition BHP can obtain the latest medical treatment form Dr. Vorbach.
  I notify yourself and the AAT that I have a right to proper legal representation in Australia which BHP has continually undermined and I wish to uphold the tribunals direction for my application of February 21st 2000.  I now have to resort to legal advice and medical treatment and representation from Fiji.
  I will also seek the application of the Discrimination Act of 1975 for consideration and settlement of matters before BHP Petroleum."

  (ix)4 July 2000.  Mr. Jione to his "new"  solicitors, Watts and Company.

  "So far the position that BHP has taken since May 1994 is rather disgusting because all they have done is to use the legal system available to them under the Seafarers legislation and to continue to starve me with legal cost and prolong the depressive illness.
  I do not accept the legal explanation you gave me because that is what BHP wanted you to tell me and convince me to be attached to them.
  Today I am exercising my right and freedom to get on with my life without the attachment to BHP Petroleum Pty Ltd or any other person that may be associated with BHP in any shape or form.
  The following will be the course of action I will take from here as I believe the conduct of my matter is no longer in the best interest of my health and future financial security
  I will today contact the Seafarers Rehabilitation Authority (Seacare) to obtain the forms for a claim for permanent impairment.
  Since I tendered my resignation to BHP the only benefit I have received to date is the weekly benefit of 150% of average weekly male earnings under section 31.
  My position with BHP since I was admitted to a Psychiatric hospital is that my health now is very important and that I have made my decision to retire permanently from paid employment and will pursue volunteer work for my future emotional and physical well-being.
  This is the dispute between BHP and myself and BHP has manipulated the legal people that I have engaged to deal with my claim for fair compensation under the Seafarers Act of 1992."

1. Dr. Bird saw Mr. Jione on June 3 and 7, 1999.  He thought that Mr. Jione was extremely unwell at the time.  Dr. Bird was of the opinion that Mr. Jione was suffering from a paranoid psychosis with thought disorder.  Mr. Jione's decision making processes were impaired.  It was Dr. Bird's belief at the time that Mr. Jione would become profoundly unwell if he ceased his medication.

2. The Tribunal finds that when Mr. Jione wrote the letters which appear on the face of them to contain an election to pursue civil claims, he was so impaired mentally, due to his psychiatric illness, that he did not have the capacity to make an election.

3. Consequently, the Tribunal sets aside the decision under review and determines that:

   (i)Mr. Jione did not make an election pursuant to section 55 of the Act, and

   (ii)Mr. Jione has a work-related 20% whole person permanent impairment.

   I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Deputy President, Dr. K.P. Kennedy and Major General J.N. Stein, Member.

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  19, 20, 21, 22, 23 August 2002
   Date of Decision  2 October 2002
   Solicitor for the Applicant         Drakopoulos Black
   Counsel for the Respondent    Mr. C. Clark       
   Solicitor for the Respondent    Sparke Helmore