Messenger and Comcare (Compensation) - [2023] AATA 2407

Messenger and Comcare (Compensation) [2023] AATA 2407 (4 August 2023)
Division:GENERAL DIVISION
File Number: 2018/6198
Re:Robert Messenger
APPLICANT

AndComcare
RESPONDENT

File Number: 2018/6204
Re:Fern Messenger
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:4 August 2023
Place:Hobart

In the matters of 2018/6198 and 2018/6204, the Tribunal affirms the decisions under review.
....................[sgd]....................................................
Deputy President Britten-Jones
CATCHWORDS
COMPENSATION - Claims for psychological injuries - Whether requirement to give notice under s 53 applicable - Whether Mr Messenger suffered an ailment during his employment - Whether ailment significantly contributed to by employment - Whether Mrs Messenger suffered an aggravation of a pre-existing condition - Whether aggravation significantly contributed to by employment - Reasonable administrative action - Decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Abrahams v Comcare [2006] FCA 1829
Comcare v Mooi [1996] FCA 508; 69 FCR 439
Frosch v Comcare [2004] FCA 1642
Wuth v Comcare [2022] FCAFC 42
REASONS FOR DECISION
Deputy President Britten-Jones
4 August 2023

The applicants, who I will refer to as Mr and Mrs Messenger (or together, the Messengers), were employed with the Commonwealth Department of Finance from 1 July 2014 in the office of Senator Jacqui Lambie. Their relationship with Senator Lambie broke down and they were dismissed on 3 May 2017. Mr and Mrs Messenger claim to be entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act1988 (the SRC Act) in respect to psychological injuries said to arise or have been aggravated during the period of their employment. Their claims have previously been declined by Comcare. They have applied to the Tribunal for a review of those decisions made by Comcare. Their applications were heard together because of the considerable factual overlap in their claims. In these reasons, unless otherwise stated, the findings relate to both applications. Only when required have I made separate findings in each of the applications.
The Tribunal heard evidence from Mr and Mrs Messenger, Senator Lambie, numerous fellow employees from the same office and medical experts. There were many factual disputes with respect to significant events during the period of employment. Most of those disputes had been aired in Federal Court proceedings brought by Mr and Mrs Messenger under the Fair Work Act 2009 (Cth) against the Commonwealth and Senator Lambie seeking declarations and compensation relating to their period of employment. That decision was handed down by Snaden J on 10 June 2022 in Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677. The applications brought by the Messengers in those proceedings were dismissed. Whilst there is considerable factual overlap between this matter and the Federal Court proceedings, I have not relied upon any findings made by the Judge in the Federal Court proceedings. Instead, I have made my own findings based upon the evidence before me which included extracts of transcript from, and some witness statements filed in, the Federal Court proceedings.
Procedural Background
Mr and Mrs Messenger signed separate applications for workers’ compensation on 14 March 2018 which were then submitted to Comcare on 21 March 2018. The claims for compensation were denied by a delegate of the respondent on 9 July 2018. The determinations were then affirmed upon reconsideration by the respondent. The basis for the denials was the reasonable administrative action exclusion in s 5A of the SRC Act.
Mr and Mrs Messenger lodged their applications for review with the Tribunal in October 2018.
Issues in dispute for Mr Messenger
Does the SRC Act apply by reference to the requirement to give notice under s 53 of the SRC Act?
Did Mr Messenger suffer an ailment as defined in s 4(1) of the SRC Act?
If so, was that ailment contributed to, to a significant degree, by Mr Messenger’s employment such as to constitute a disease for the purposes of s 5B of the SRC Act?
If so, was that ‘disease’ suffered as a result of reasonable administrative action in respect of Mr Messenger’s employment, such that the claim should be excluded under s 5A of the SRC Act?
Issues in dispute for Mrs Messenger
Does the SRC Act apply by reference to the requirement to give notice under s 53 of the SRC Act?
Did Mrs Messenger suffer an aggravation of an ailment as those terms are defined in s 4(1) of the SRC Act?
If so, was that aggravation of an ailment contributed to, to a significant degree, by Mrs Messenger’s employment such as to constitute a disease for the purposes of s 5B of the SRC Act?
If so, was that ‘disease’ suffered as a result of reasonable administrative action in respect of Mrs Messenger’s employment, such that the claim should be excluded under s 5A of the SRC Act?
Legislation
Section 53 of the SRC Act provides:
(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury; …
(3)Where:
(a)a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b)the notice, as regards the timing of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
Section 14 provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Injury is defined in s 5A(1) as follows:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
A disease is defined in s 5B(1) to mean:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Section 4 of the SRC Act provides for a definition of ailment and aggravation as follows:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
aggravation includes acceleration or recurrence.
Introduction of the lay witnesses
Mrs Messenger
Mrs Messenger suffered from depression and first started taking antidepressants in about 1997. She commenced working for Senator Lambie in 2014. She was the office manager. She claims that she suffered an aggravation of her pre-existing depression when working for the Senator. She ceased being employed with Senator Lambie on 3 May 2017.
Mr Messenger
Mr Messenger commenced work as an assistant advisor with Senator Lambie on 1 July 2014. He was her chief of staff. His employment was terminated by letter dated 3 May 2017.
Senator Lambie
Senator Lambie provided the Tribunal with two written statements dated 3 May 2021. She provided oral evidence in the Federal Court proceedings on 8, 9 and 10 February 2021. She gave oral evidence to the Tribunal on 24 May 2022.
Gemma Lynd
Ms Lynd was employed by Senator Lambie in general administration from about January 2016. She was supervised by Mrs Messenger. She made a statutory declaration dated 20 April 2017 about her experiences working with Mr and Mrs Messenger in the office of Senator Lambie. Ms Lynd gave evidence in the Federal Court proceedings on 30 October 2020. She gave oral evidence to the Tribunal in February 2022 at which time she was still employed by Senator Lambie.
Kirsty Balthazaar
Ms Balthazaar was employed by Senator Lambie from May 2015 to September 2017 as an electoral officer and then social media manager. She made a statutory declaration dated 20 April 2017 about her experiences working with Mr and Mrs Messenger in the office of Senator Lambie. Ms Balthazaar gave evidence in the Federal Court proceedings on 30 October 2020. She provided a witness statement to the Tribunal dated 4 June 2021 and gave oral evidence to the Tribunal in February 2022.
Aryelle Sargent
Ms Sargent was employed by Senator Lambie from around May 2015 to December 2017 as an electoral officer and then assistant advisor. She made a statutory declaration dated 20 April 2017 in relation to the conduct of Mrs Messenger on 24 March 2017. She gave evidence in the Federal Court proceedings on 30 October 2020. She provided two witness statements to the Tribunal dated 28 May 2021 and 6 June 2021 and a further witness statement dated 9 February 2022 on which day she also gave oral evidence to the Tribunal.
Kay Eastley
Ms Eastly was employed by Senator Lambie from November 2014 to March 2015 and from July 2015 to February 2016 and again from 6 April 2021. She provided a witness statement to the Tribunal dated 4 June 2021 and gave oral evidence on 23 May 2022.
Tammy Tyrrell
Ms Tyrrell was employed by Senator Lambie from late July 2014 in a number of different roles until November 2017. She gave evidence in the Federal Court proceedings on 27, 28 and 29 October 2020. She provided two witness statements to the Tribunal dated 28 May 2021 and 2 June 2021 and gave oral evidence on 23 May 2022.
Kelcey Walker
Ms Walker commenced working for Senator Lambie doing administrative duties in 2015 and then later took on a role dealing with veterans issues. She resigned by email dated 23 February 2017. She did not give oral evidence to the Tribunal. She gave evidence in the Federal Court proceedings on 27 October 2020.
Mitchell Walker
Mr Walker was employed by Senator Lambie from about June 2016 to 2017. He was supervised by Mrs Messenger. He did not give oral evidence to the Tribunal. He gave evidence in the Federal Court proceedings on 27 October 2020.
Karen Philpott
Ms Philpott worked with Senator Lambie from February 2016 until at least 2021. She did not give oral evidence to the Tribunal. She made a statutory declaration on 30 March 2017 about Mr and Mrs Messenger. She gave evidence in the Federal Court proceedings on 29 and 30 October 2020. She provided the Tribunal with a written outline of evidence dated 4 June 2021.
William (Bill) Heffernan
Mr Heffernan is a former senator. He provided an affidavit to the Tribunal on 24 November 2021 and he gave oral evidence on 9 February 2022.
Toni Rikys
Ms Rikys was employed as State Manager, Victoria, Ministerial and Parliamentary Services within the Commonwealth Department of Finance. She did not give oral evidence to the Tribunal. She gave evidence in the Federal Court proceedings on 21 February 2021. She provided two written statements dated June 2021 to the Tribunal.
Andrew Witherford
Mr Witherford was employed in Ministerial and Parliamentary Services in the Department of Finance from May 2016 to April 2017. He gave evidence in the Federal Court proceedings on 11 February 2021. He provided two written statements to the Tribunal dated 19 August 2021. He gave oral evidence to the Tribunal on 8 February 2022.
Evidence from the medical witnesses
Dr Ash Takyar
Dr Takyar provided medical reports at the request of the lawyers for Mr and Mrs Messenger. In relation to Mr Messenger, Dr Takyar provided reports dated 9 December 2019 and 5 September 2021. In relation to Mrs Messenger, Dr Takyar provided reports dated 9 December 2019 and 4 September 2021. Dr Takyar provided oral evidence to the Tribunal in February 2022.
Dr Takyer – Mrs Messenger
Dr Takyar interviewed and examined Mrs Messenger via video link on 22 November 2019. She told Dr Takyar that Senator Lambie’s conduct on numerous occasions caused her mental state to deteriorate over time. She referred to a death threat from an Islamic State supporter in February 2015 and that Senator Lambie did not care about security that was needed. She said that Senator Lambie wanted to sack a young girl because she was spending too much time with her mother who was receiving palliative care. She said that her ultimate breakdown was in December 2016 on a trip to Canberra and then there was a vicious verbal attack in February 2017. She said at that point she went and saw her general practitioner and was on sick leave on and off thereafter until her employment was terminated on 3 May 2017.
In his December 2019 report, Dr Takyar considered that Mrs Messenger had no significant history of any anxiety prior to her employment with Senator Lambie but had a history of mild depression that was nearly in remission and did not impart any occupational incapacity at the time of that employment. He said that Mrs Messenger presented with a history of a recurrence of a major depressive disorder and an adjustment disorder with anxiety in the context of a reported history of bullying and harassment which she described whilst working for Senator Lambie in her political office, overwork and exposure to threats and observing others allegedly being harassed by Senator Lambie over the course of her employment. He said that her condition developed in the context of adverse treatment, security threats and perceived security issues, lack of support from Senator Lambie, overwork and perceived harassment.
In his supplementary report dated 4 September 2021, he said that her mental state changes took place somewhere between late 2014 and mid-2015.
Dr Takyer – Mr Messenger
Dr Takyer interviewed and examined Mr Messenger on 22 November 2019. Mr Messenger reported a series of events that lead to a deterioration in his mental state. The first was an incident on radio when Senator Lambie made inappropriate comments. Next were three physical assaults by another politician in Canberra, Senator Heffernan. He referred to Senator Lambie trying to sack a staff member because she was spending too much time with her mother who was receiving palliative care. He referred to the terrorist threat in February 2015. He referred to daily abuse and derogatory comments made by Senator Lambie from around Anzac day 2015. He said he was required to field phone calls from veterans who were often suicidal and abusive. He said he was required to read a top secret report detailing sexual assaults, torture and abuse.
In his December 2019 report, Dr Takyar diagnosed Mr Messenger as currently presenting with a major depressive disorder and generalised anxiety disorder. He said that Mr Messenger had described work-related factors that led to the development of his condition.
Under cross examination, Dr Takyer revised his written opinion “saying that there was symptom onset around 2014 or 2015, I am not certain of that DSM-5 criteria. May or may not have been met in that period but I hadn’t examined him.”[1] Dr Takyer accepted that his opinion about the date of the onset of symptoms was only based on what Mr Messenger told him.[2]
Dr Marty Ewer – Mr Messenger
[1] Transcript P-437 line 35.
[2] Transcript P-437 line 40.
Dr Ewer is a psychiatrist who provided written reports dated 3 August 2021 and 25 November 2021 and who gave oral evidence to the Tribunal in May 2022.
Dr Ewer interviewed Mr Messenger on 3 August 2021 and he reported similar events to those reported to Dr Takyar.
In his August 2021 report, Dr Ewer was asked if Mr Messenger suffered an ailment in about mid-2017 and he said that if Mr Messenger’s history is accepted then he was probably suffering from a post-traumatic stress disorder; but if Senator Lambie’s history was accepted then he could not say that he was suffering from a psychiatric disorder. He said that Mr Messenger was predisposed to developing psychiatric symptoms given his obsessional personality structure and that his psychiatric symptoms were present prior to the events leading to his dismissal.
In his November 2021 report, Dr Ewer said that there was evidence of symptom magnification suggesting a degree of exaggeration. He said that if it were accepted that Mr Heffernan did not assault him, then he would be very concerned about Mr Messenger’s reliability as a historian.
Dr Antonella Ventura – Mrs Messenger
Dr Ventura examined Mrs Messenger at the request of the respondent. She provided written reports dated 9 June 2021 and 10 August 2021. She did not give oral evidence to the Tribunal.
In her June 2021 report, Dr Ventura described Mrs Messenger’s past psychiatric history as comprising a first episode of depression in 1998, two subsequent episodes after the birth of her children and another episode in 2011 when she was treated with sertraline and remained on maintenance treatment. She referred to Mrs Messenger being on the verge of tears when talking about ‘the young woman’s treatment, when her mother was dying of cancer’.[3] She said that Mrs Messenger’s report of trauma symptoms lacked genuineness and appeared rehearsed. She considered that on 3 May 2017 Mrs Messenger suffered from a psychiatric disorder, namely an episode of her recurrent major depressive disorder. She said that from the history available to her, the aggravation of the major depressive disorder was in around December 2016.
[3] Exhibit 8 – TB 28 p 6.
Dr Ventura was provided with further documentation which she said in her August 2021 report ‘raises the issue that Mrs Messenger may not be a completely reliable historian’. She said that she was more inclined to give the onset of the new episode of major depressive disorder in February 2017. She said that the ailment being suffered in May 2017 was a continuation of a prior ailment. She described the contributing factors to her ailment as being 70% from the existing diagnosis of recurrent major depressive disorder, 10% from the prolonged conflict with her employer, and 20% from the threat to her employment and being given a show cause letter.
Dr Derek Lovell
Dr Lovell provided psychiatric assessments for Mr and Mrs Messenger by reports dated 21 May 2018. He did not give oral evidence to the Tribunal.
Dr Lovell examined Mrs Messenger on 11 May 2018. Mrs Messenger reported that prior to her employment with Senator Lambie she had been off sertraline for approximately three years and that it was after an outburst in which Senator Lambie wanted to dismiss a young staff member in July 2015 that sertraline was recommenced at low dose. Dr Lovell diagnosed her as suffering from a recurrent major depressive disorder which was first diagnosed in 1998. He said that the employment related aggravation of her condition had its onset around July 2015 when sertraline was recommenced after a period of three years or longer without taking it.
Dr Lovell examined Mr Messenger on 11 May 2018. He described Mr Messenger as suffering from a chronic adjustment disorder with anxiety and depressed mood. He said that prior to his dismissal Mr Messenger was stressed but not ill. He said that the major contributor to his condition was his dismissal together with the loss of income and prestige and the ongoing litigation. The earlier events were stressful but did not cause illness.
Dr Ben-Sion Elijah

Mrs Messenger was referred by her general practitioner to Dr Elijah on 3 April 2017. He carried out an initial assessment on 21 April 2017 and provided care and treatment thereafter. Dr Elijah diagnosed her as suffering from a recurrence of major depressive disorder in the context of significant workplace events on a background of chronically stressful employment atmosphere and work demands. Dr Elijah did not give oral evidence to the Tribunal. His letters of 6 February 2018 and 8 May 2018 were before the Tribunal.
Mr Messenger was referred by his general practitioner to Dr Elijah on 3 April 2017. He carried out an initial assessment on 21 April 2017 and provided care and treatment thereafter. Dr Elijah diagnosed him as suffering from major depression and post-traumatic stress disorder (delayed onset) primarily related to the conditions of his employment and particularly in relation to events leading up to the loss of his employment. His letter of 8 May 2018 was before the Tribunal.
An overview of some relevant events
There was no material dispute that the following events took place during the term of employment for Mr and Mrs Messenger from 1 July 2014 to 3 May 2017 and shortly thereafter.
Mrs Messenger commenced employment with the Department of Finance on 1 July 2014, being the same date that Senator Lambie assumed office. Mrs Messenger’s role was office manager. Mr Messenger commenced his employment on 1 July 2014 as an assistant advisor but, for all intents and purposes, he was chief of staff for Senator Lambie.
On 22 July 2014, Senator Lambie had a radio interview and made comments which Mr and Mrs Messenger considered were inappropriate.
On 27 February 2015, a letter was received at the electorate office of Senator Lambie which contained death threats and included disturbing images. The letter was opened by Kelsey Walker in the presence of Tammy Tyrell. Ms Tyrell notified Mrs Messenger of the letter and it was brought to the attention of Mr Messenger, who said that after reading the letter and viewing the photographs, he felt sick and very worried.
In July 2015 Senator Lambie met with Mr and Mrs Messenger about Kelcey Walker who had been taking time off because her mother was terminally ill.
In July 2016 Senator Lambie was re-elected and she held a meeting with Mr and Mrs Messenger.
In late November 2016, Mrs Messenger travelled with Senator Lambie to Canberra for the sitting of Parliament. There was an incident on 30 November 2016 when Senator Lambie and Mrs Messenger were in Canberra and Mrs Messenger had Mr Messenger on the phone.
On 7 December 2016, Mr Messenger sent emails to Senator Lambie complaining about her emails to Mrs Messenger.
There was an incident between Senator Lambie and Mrs Messenger in the boardroom of the electorate office on 22 February 2017.
On 22 February 2017, Mrs Messenger had an appointment with a general practitioner, Dr Okorafo, and reported she was being bullied and was stressed at work, unable to sleep and was experiencing headaches.
On 15 March 2017, Mr Messenger had an appointment with his general practitioner, Dr Kariyawasam, who referred him to a psychologist, Mr Michael O’Donnell.
On 16 March 2017, Mrs Messenger had an appointment with her general practitioner, Dr Kariyawasam, and reported difficulty getting to sleep, low mood and anhedonia.
On 24 March 2017, Mrs Messenger had another appointment with Dr Kariyawasam and requested a referral to a psychiatrist.
On 27 March 2017, Senator Lambie sent show cause letters to Mr and Mrs Messenger.
On 27 March 2017, Mr and Mrs Messenger sent a letter to the Prime Minister claiming public interest disclosure and requesting an investigation into their complaints regarding Senator Lambie.
On 12 April 2017, Mr and Mrs Messenger responded to the show cause letters.
On 3 May 2017, Senator Lambie sent letters terminating the employment of Mr and Mrs Messenger.
On 24 May 2017, Mr and Mrs Messenger brought a claim in the Fair Work Commission in relation to their termination of employment.
On 31 July and 11 August 2017, respectively, Mr and Mrs Messenger commenced proceedings in the Federal Court.
On 14 March 2018, Mr and Mrs Messenger signed their claims for workers’ compensation.
The issue of Notice
On 14 March 2018 Mr and Mrs Messenger signed their claims for workers’ compensation which appear to have been submitted by their lawyers to the respondent on 21 March 2018.[4]
[4] Exhibit 19 pp 215 to 218.
For an injury suffered by Mr and Mrs Messenger to be compensable under the SRC Act, they must have given notice to the respondent as soon as practicable after becoming aware of the injury unless no prejudice arises from the late notice.
Mr and Mrs Messenger contend that notice of their injuries was in fact given on 12 April 2017, which was their letter in response to the show cause notice. That letter was signed by Mr and Mrs Messenger and was sent to Senator Lambie and not the respondent, but I do not consider that to be fatal because in Frosch v Comcare [2004] FCA 1642, the Federal Court expressed no concern about the Tribunal’s finding that claimants generally did not communicate directly with Comcare but did so through their employing authority acting as agent for Comcare.
In construing a document purporting to be a notice of injury, I should take ‘a broad, generous and practical interpretation’.[5] The 12 April 2017 letter makes a reference to ‘recent times when our physical and mental health failed us’ and describes how the show cause notice ‘has increased our feeling of shock and created additional feelings of dread, depression, fear’ and ‘has also contributed to the great harm Fern and I are currently suffering.’ The letter also contains allegations of abuse and bullying directed at the Messengers by Senator Lambie and states they look forward to ‘swearing to tell the truth to an appropriate tribunal of fact or court’.
[5] Abrahams v Comcare [2006] FCA 1829 at [18].
In Frosch v Comcare [2004] FCA 1642, the Federal Court held that the essential information to be imparted in a notice of injury was the nature of the injury or ailment and its connection with the employment. I consider that the reference to ‘depression’ in the response to the show cause notice, on a broad and generous approach, is a description of the nature of the injury suffered by Mr and Mrs Messenger. Further, the connection with employment is established by the allegations of bullying and abuse in the workplace. The notice was given soon after they first attended upon a medical practitioner and reported events relating to their workplace. I conclude that the notice was given as soon as practicable after the Messengers became aware of their alleged injuries. Section 53 does not preclude their claims for compensation.
Did Mr Messenger suffer an ailment during his employment?
Mr Messenger contends that he suffered from a major depressive disorder and a generalised anxiety disorder and relies on the evidence of Dr Takyar, supported by evidence of his treating psychiatrist, Dr Elijah. He says that he suffered these conditions in late 2014 or early 2015. Alternatively, Mr Messenger submits that he suffered from a psychological disorder in early 2017, and by the latest, 16 March 2017 when he first attended for treatment.
The respondent contends that the claims of Mr Messenger that he suffered an ailment from 2014 should be rejected as unreliable and inconsistent with other available evidence. The respondent relies on the witnesses who worked with Mr and Mrs Messenger in the electorate office and who gave evidence about the behaviour of Mr and Mrs Messenger in that office. The respondent reiterates that the first time Mr Messenger attended a medical practitioner reporting work caused symptoms was on 15 March 2017 and that there is no objective evidence available that Mr Messenger suffered an ailment from 2014. The respondent contends that Mr Messenger started seeing doctors and a psychologist to set up the trail of medical evidence to seek to add some support to his claims. The respondent says that those practitioners mainly record what Mr Messenger told them and they do not verify the accuracy of those events.
Mr Messenger gave evidence of a series of stressful events to which he was subjected whilst working with Senator Lambie. His evidence is generally supported by Mrs Messenger but contradicted by Senator Lambie. Much of his evidence is also contradicted by others who worked in the electorate office at the relevant time.
Mr Messenger gave evidence in his amended statement[6] that Senator Lambie during the course of his employment subjected and exposed a number of staff, including he and his wife, to abusive, erratic and risky behaviour caused by alcohol and/or (prescription) drug use. Ms Lynd gave evidence of a very different work environment. She said Senator Lambie was ‘quite laid back’ and ‘pretty easy going’ and that there was ‘a great atmosphere’ in the office.[7] In cross examination she described the Senator as very passionate who could get quite fired up and would swear occasionally; although, Ms Lynd denied that the Senator used some very vulgar language that was put to her in cross examination. Ms Balthazaar described that by late 2016 there was a ‘toxic nature in the office’ related to Mr and Mrs Messenger which she recorded in a statutory declaration on 20 April 2017.[8] She said she was unfairly targeted by Mr and Mrs Messenger which caused her stress at the time.[9] She raised her issues relating to Mr and Mrs Messenger with Senator Lambie in December 2016.[10]
[6] Exhibit 3 at [32].
[7] Transcript P-503.
[8] Transcript P-519 and P-520.
[9] Transcript P-525.
[10] Transcript P-520 and P-528.
Mr Messenger gave evidence under cross examination that Ms Sargent indicated that she was fearful of the Senator[11] but this was contradicted by her statement that ‘I was not scared of her at all.’[12] Further, Ms Sargent said she never saw Senator Lambie drinking at work.[13] In her evidence she described Mr and Mrs Messenger as toxic[14] and quite volatile.[15] She said that Senator Lambie was a wonderful person to work with.[16] Ms Tyrell gave evidence that by December 2016 the staff felt that they were not being heard by the Messengers and that they were targeted by them if they expressed disagreement. The staff generally felt frustrated with the Messengers’ management of them. Ms Tyrell made Senator Lambie aware of these staff concerns in December 2016 when she accompanied her on a road trip around the electorate.
[11] Transcript P-266 line 3.
[12] Exhibit 8 – TB 26 at [27].
[13] Transcript P-539.
[14] Transcript P-558 and P-559.
[15] Transcript P-557.
[16] Transcript P-558.
Mr Messenger said that Mrs Messenger was abused by Senator Lambie on 22 February 2017. He told Dr Lovell that if he attempted to defend his wife he would be verbally abused by Senator Lambie.
Senator Lambie conceded in cross examination that she did swear but she said that everyone in the office did. She said that in December 2016 Ms Tyrell told her that the staff were being bullied by Mr and Mrs Messenger. She said that she did not take action against the Messengers until she sent show cause letters to them on 27 March 2017. Senator Lambie denies any abusive behaviour either towards the Messengers or other staff in the office.
I accept the evidence of Senator Lambie and prefer it over the evidence of Mr Messenger. His allegation of alcohol and drug use at work by Senator Lambie is not corroborated by other evidence and I reject it. His allegation of abusive and erratic behaviour by Senator Lambie is directly contradicted by the evidence of other staff who I accept were truthful witnesses. Their evidence supports a finding that it was the conduct of the Messengers, and not the Senator, that caused issues within the workplace.
Mr Messenger gave evidence of three physical attacks on him by Senator Heffernan in Parliament house. In his amended statement dated 1 February 2022, he said that the first attack was between July and November 2014 and the other two attacks occurred between November 2014 and July 2016.[17] Mr Messenger said that what happened was that Senator Heffernan walked up behind him in Parliament House three times and locked both his hands around his throat and applied force. He said that he told Mrs Messenger. He said he told Senator Lambie and she told him to ‘harden the f… up’. Senator Lambie denies any knowledge of the events and denies ever being told about them. Senator Heffernan denies ever choking him. When asked in examination in chief if he ever choked Mr Messenger, he said that he could not even remember who he was or where he came from. Under cross examination he said ‘I don’t know what this is all about because it didn’t happen’.
[17] Exhibit 3 – Statement of Mr Messenger.
I reject the evidence of Mr Messenger that he was assaulted by Mr Heffernan. There are inconsistencies in his evidence about the dates of the assaults. In his first statement dated 27 August 2021 he described the three assaults as having occurred between July and November 2014 but his amended statement dated 1 February 2022 said that the first attack was between July and November 2014 and the other two attacks occurred between November 2014 and July 2016.[18] I reject his explanation for changing the dates of the assaults because there was a lot of confusion and that he was very upset at the time of making the first statement. It is simply implausible that a mistake of that magnitude would be made in a formal legal document that was lodged with the Tribunal. Leaving aside the change to the dates, it is implausible that Mr Messenger would not be able to recall with more precision one or more of the dates of the attacks. Mr Messenger under cross examination said he was not even sure of the years when they happened.[19] It is implausible that no complaint was made, not even after it allegedly happened a third time. Mr Messenger accepted that there was CCTV everywhere in Parliament house and that he did not ask for a copy of any footage. There is no contemporaneous written record such as an email or a text to his wife or anyone else. Mrs Messenger says that her husband told her over the phone each time that it happened.[20] At the time of being told, she made no written record of what her husband told her. She did not discuss it with Senator Lambie.[21] Under cross examination she said that she did not recall if she spoke to any other staff about it. No other staff were aware of it. I reject Mrs Messenger’s evidence that he told her about the attacks. This is an example of Mrs Messenger fabricating evidence to assist their case.
[18] Exhibit 3 – Statement of Mr Messenger.
[19] Transcript P-136.
[20] Transcript P-25 and P-26.
[21] Transcript P-351.
In Dr Takyar’s report dated 9 December 2019 he set out what Mr Messenger told him about three assaults which he said were in the second half of 2014 within about 8 weeks of each other. Under cross examination, Dr Takyar agreed that that time frame was important to his opinion as to when the condition onset and he said ‘Yes, it sounds like these assaults led to a worsening of his anxiety.’[22] Dr Takyar said that at the time of his assessment in December 2019 Mr Messenger presented with a major depressive disorder and a generalised anxiety disorder. He clarified under cross examination that the symptoms onset in around 2014 or 2015 based on what Mr Messenger told him.[23]
[22] Transcript P-436.
[23] Transcript P-437.
My rejection of the allegations of physical attacks and of abusive or bullying behaviour by Senator Lambie towards the Messengers is critical because it was these allegations that underpinned much of the medical evidence of an ailment arising during the course of employment. Mr Messenger was not a credible witness. Where his evidence differs from that of Senator Lambie, I accept the evidence of the Senator.
I also find that Mr Messenger exaggerated his work hours which he said were up to 100 hours per week. He exaggerated the impact on him of the death threat received in the office in February 2015; any swearing by Senator Lambie; any treatment of Mrs Messenger by Senator Lambie; and his involvement with veterans. I accept the evidence from Senator Lambie that Mr Messenger did not complain about his work hours or her swearing and that he gained a lot of satisfaction from his job. I accept the evidence from Ms Eastley that Mr Messenger attempted to use the death threat as a media stunt by delaying a press release on the topic by three days to maximise its impact, which does not suggest that he was adversely impacted by the event. In his statement to the Federal Police dated 19 March 2015, Mr Messenger said ‘We have implemented additional security measures since the letter arrived’. There is insufficient evidence to find that these events or any other alleged workplace events caused him any significant impairment or a psychiatric injury. Mr Messenger was unable to provide any contemporaneous medical evidence relating to his condition in 2014, 2015 and 2016 because he did not seek medical attention until March 2017.
On 6 December 2016 Mr Messenger wrote to Senator Lambie expressing his concern ‘about the harmful effect your emails are having on Fern’ and that ‘Ferns near in tears tonight after your latest emails’. Senator Lambie responded by saying that she had no idea what he was talking about and asked for a copy of the emails.[24] Mr Messenger was unable to provide any emails because they did not exist. I find that the concerns expressed by Mr Messenger were fabricated and that Mrs Messenger did not suffer any harm from the non-existent emails.
[24] Exhibit 8 – TB 51; Transcript P-255 to P-257.
Mr Messenger misled the medical practitioners by providing false reports of the conduct of Senator Lambie and by fabricating evidence of being choked. Mr Messenger falsely stated in his statements of 27 August 2021[25] and 1 February 2022[26] that in late 2014 he started experiencing panic attacks which involved choking. He stated to Dr Ewer that ‘in July 2014 he started to feel depressed anxious’[27] but Dr Kariyawasam’s consultation notes dated 15 March 2017 record ‘no anxiety symptoms’ and his referral letter dated 3 April 2017 said ‘He presented with symptoms of depression of short duration, around 4 weeks with no past history of previous mental health problems.’[28]
[25] Exhibit 8 – T17 at [110].
[26] Exhibit 3 at [109].
[27] Exhibit 8 – TB 41 p 4.
[28] Exhibit 8 – TB 119.
Dr Lovell raised a concern about the veracity of his reports in his May 2018 medical opinion where he said:
There is inconsistency between his presentation, his capacity to focus, his concentration and his affective responses with the symptoms he describes.
My opinion is that although stressed by his work he is not suffering from a psychiatric condition but instead he is angry, aggrieved and heavily involved in litigation.[29]
[29] Exhibit 8 – TB 142 p 53.
Dr Ewer also expressed his concern about the history provided by Mr Messenger.[30] He said that if Senator Lambie’s history is accepted then he could not say that Mr Messenger was suffering from a psychiatric disorder.[31] It is telling that Mr Messenger did not seek medical assistance until he went to see his general practitioner on 15 March 2017 who recorded that Mr Messenger was under a lot of stress at work but had no anxiety symptoms. Dr Lovell said that the events prior to his dismissal caused him to be stressed but not ill. Michael O’Donnell, the psychologist who saw Mr Messenger on 20 April 2017, said that he presented ‘in a composed way however his experiences and reports suggest a level of significant stress in managing various situations in his workplace’.[32] Mr O’Donnell said that his ‘experiences’ led to increasing symptoms of anxiety but I note that is inconsistent with the general practitioner’s notes of no anxiety symptoms. In so far as Mr Messenger reported symptoms which suggested a psychological injury, he should be disbelieved because of his unreliability as a historian.
[30] Exhibit 9 – TB 191.
[31] Exhibit 8 – TB 41.
[32] Exhibit 8 – TB 120.

I am unable to accept Dr Elijah’s diagnoses of major depression and PTSD as at 21 April 2017 because they were based on a history of false reports by Mr Messenger. I prefer the medical opinions expressed by Dr Ewer and Dr Lovell that in the period prior to his dismissal, Mr Messenger was stressed but not ill. I am unable to accept the opinion expressed by Dr Takyar, who had been misled by Mr Messenger. I accept that Mr Messenger was stressed by work events but I consider that he did not suffer a compensable injury but, rather, a normal reaction to a stressful situation which was not ‘outside the boundaries of normal mental functioning and behaviour’.[33] It follows that Mr Messenger did not suffer an ailment during his employment.
[33] Comcare v Mooi [1996] FCA 508; 69 FCR 439 at 444.
Was Mr Messenger’s ailment contributed to, to a significant degree, by his employment?
I have found that Mr Messenger did not suffer an ailment during the course of his employment with Senator Lambie. However, there is little doubt that his stress arose from his employment. If it was more than stress and was in fact an ailment then I would accept that his condition was contributed to, to a significant degree, by his employment.
Reasonable administrative action – Mr Messenger
The respondent contends that, if the applicant suffered an ailment in or around May 2017, which is denied, it was suffered as a result of the dismissal process which was conducted reasonably such that the reasonable administrative action exclusion applies. The dismissal process formally commenced with the show cause letter of 27 March 2017.
The effect of my finding that Mr Messenger did not suffer an ailment during his employment is that I reject Mr Messenger’s contention that he was suffering from a psychological disorder when he first attended for treatment on 15 March 2017. As a further alternative, Mr Messenger contended that his ailment arose on or around 27 March 2017 from administrative action which was not reasonable. I am not satisfied that any ailment arose even at this late stage of his employment. He was angry about the show cause letter and the events leading up to his dismissal on 3 May 2017 but the effect of Dr Ewer’s medical opinion, which I accept, is that this caused stress but not a compensable injury. I have found that in so far as Mr Messenger reported symptoms which suggested a psychological injury, he should be disbelieved because of his unreliability as a historian. It follows that I place no material weight on the opinion expressed by Dr Lovell (and by Dr Takyar) that the major contributor to his illness was his dismissal because those opinions are vitiated by the misleading reports from Mr Messenger.
If I am wrong and Mr Messenger was suffering from a disease for the purposes of s 5B of the SRC Act, then the question arises as to whether that ‘disease’ was suffered as a result of reasonable administrative action. For the reasons that follow, I would answer that hypothetical question in the positive because I consider that the dismissal process amounted to reasonable administrative action.
On 27 March 2017, Senator Lambie sent a show cause letter (the first show cause letter) to Mr Messenger:
It has come to my attention that there has been a significant breakdown of employer — employee trust as a number of concerns have been brought to my attention. The main concerns are as follows:
(a)You have asked staff to ‘spy’ or to report back on my activities;
(b)You have asked staff to use their personal rapport with me to influence decisions or positions;
(c)You suppressed personal staff advice. Staff were yelled at, belittled or given the ‘cold shoulder’ and thus punished for expressing opinions that conflicted with your stated positions;
(d)Your unpredictability, moodiness, overt negativity to staff, and/or vindictive attitudes to staff, and your undermining me in front of staff verbally have had a negative impact on staff in the office;
(e)Without my permission, linking my iPhone to an iCloud account maintained by the Advisor Rob Messenger which enables mirroring of phone calls, logging of phone calls and messages and personal location tracking — running a second iCloud diary without using the APH diary system;
(f)Refusing to work on Parliamentary devices, information sharing systems, and using a private Bigpond email account even when I had directed you transfer over to the appropriate Parliamentary systems.
The above conduct evidences a breakdown in our working relationship to such an extent that I believe I can no longer have trust or confidence in you. In the present circumstances, and given the seriousness of the actions you have taken, as detailed above, I am of the view that I may have no real option other than to terminate your employment. Such a decision would not be taken lightly and before reaching a decision, I would like to give you the opportunity to put your views on this matter forward. If you wish to respond, please do so in writing no later than close of business Wednesday, March 29, 2017. After I have time to consider any response you may have, I will make my final decision on your continued employment in my office.
I look forward to your response.
Yours faithfully
Senator Jacqui Lambie
Senator for Tasmania
Mr and Mrs Messenger sent a response on 12 April 2017 (the response to the first show cause letter) which they also sent to the Prime Minister. This letter was very long but included the following extracts:
Despite recent events involving serious breaches of the WPHS Act and certain conduct by yourself, which has made the workplace unsafe for all your staff — being each served a show cause notice has come as a great shock to Fern and myself.
…
Use of Private Email Account and Computer
For the time I’ve worked for you — I’ve written nearly every speech and official Question Without Notice while receiving little correction or advice from you who accepted my work with little questioning.
Sometimes you would change an adjective and add a “bloody” to a sentence. However, you have never warned me officially or unofficially not to use my personal email account and Apple Mac for this work — in fact you encouraged me to do so for the following reasons:
…
If you can use a private email account and refuse to use a work computer — why would you make your Chief of Staff do the opposite?
So for you to suddenly use my use of a private email account and computer as grounds for a show cause notice, which skipped all the normal procedural warnings prior to me receiving it — and while I was on sick leave — beggar’s belief!
…
Swearing at Staff
Watching the delivery of my speeches live on the Canberra office TV situated above my desk was a time of great excitement and often frustration — because your reading and speaking skills are very poor causing embarrassing and cringe worthy mispronunciations — which would spoil the effect of a well written, reasoned speech and argument.
Sometimes during those moments when you stumbled over words with more than 2 syllables — or misread a speech — I would verbalise my frustration towards the Canberra office TV monitor above my desk, at your failure to competently read and pronounce simple words.
Those private expressions of disappointment I made at a TV monitor are now being used to incorrectly allege that I yelled at or swore at staff who I greeted each day with a cheery “Hello beautiful people!”
And constantly praised in an effort to make up for your lack of acknowledgement of good work and sudden wild angry mood swings which left all staff drained of energy and felt as though they were walking on “egg shells”.
What you have failed to state in your show cause letters was that the majority of the time when you followed the script — all staff cheered and excitedly celebrated (high fived each other) following the successful delivery of a speech or question by yourself in the chamber.
Indeed, in your own quirky way (even though you consistently failed to offer praise, even for praise worthy work) would tell all who would listen, that your success was due to the fact that you were “just the Billboard” and we (Fern and I) were the brains behind the message that went on the Billboard.
In fact, on some occasions both sober and under the influence of alcohol — you bluntly and succulently said “I would be fucked if we (Fern and I) ever left.”
This general assertion is supported by the facts.
Putting aside the press releases, video production, online presence, letter writing, constituent advocacy, strategic political advice and policy creation Fern and I undertook on a volunteer basis for 9 months — between the time of the 2013 election and when you officially took your seat in the Senate in July 2014 — we were able to increase your political effectiveness, profile and popularity despite some major public relations disasters.
The obvious test of our work came during the historic double dissolution election when you, despite the odds, increased your primary vote from approx. 1200 to 69,074, the second highest vote for a Tasmanian senator that won you a 6-year senate term.
This achievement came at a great personal cost to Fern and myself. To keep you performing at a high level Fern and I took on an unbelievable workload.
Fern in particular, while carrying out her normal office duties, after hours organised the registration of the Jacqui Lambie Network (JLN), ran the JLN as the secretary of the JLN and complied with all the AEC requirements, ran the state election campaigns for 4 senate teams, while also managing all the personal and tax finances of yourself and some of your family.
In short Fern and I were available to you 24/7, even during weekends, family holidays, sick leave (the rare occasions we took it) and regularly completed 80 to 90 hours of work — sometimes greater — each week.
In fact, our slavish devotion to duty for such a long period of time, led you to think it was normal to be able to contact us by phone or email during weekends, recreational leave, even following the recent election win.
Our workload and your insistence to contact us outside work hours was a contentious issue — which we raised with you during a key meeting following your last political victory. This was the meeting where we raised a number of contentious matters which we described in our PID — and this meeting marked a change in your attitude towards us.
Until recent times when our physical and mental health failed us and following critical work place incidences, that are also the subject of an official Public Interest Disclosure — Fern and I each accrued about two months sick leave in the space of about 2.5 years’ service. We believe this shows how high our level of loyalty was personally to you and how much belief we had in the good that was caused by all the staffs’ hard work.
Until recently both Fern and I sincerely believed that despite the pitfalls and hazards of working for a person who was at times unpredictable — we were making a positive difference for all the people who approached us for help.
Denial of Natural Justice and Attempt of Constructed Dismissals
However, being served show cause notices without any of the usual procedural warnings and while on official sick leave — has increased our feeling of shock and created additional feelings of dread, depression, fear and left us wondering if all our efforts have been worthwhile.
The manner in which you have attempted to execute the show cause notices — has also contributed to the great harm Fern and I are currently suffering.
It’s clear from the content and timing of your show cause notices, combined with your hiring of key staff without informing Fern Messenger, the Office Manager and myself — and withholding other information — that you have attempted to predetermine and / or construct our dismissals.
“Spying” on Senator Lambie.
When Fern and I read that one of the reasons why we are being asked to show cause is because we are trying to monitor or spy on your behaviour — then it further increases our feelings of confusion, helplessness, dread and depression given that your actions, words and behaviour over 3 years shows that you see nothing wrong with:
1. Exposing staff to extraordinary public abuse after telling a radio host in a cringe worthy radio interview that any man who wants to get to know you personally, They must have heaps of cash and they’ve got to have a package between their legs, let’s be honest,” and asking a telephone caller to the radio program if he was “well hung.”
2. taking staff members shopping in Adult stores, for sex toys.
3. trying to sack a young staff member who spent too much time away from work while caring for a mother who suffered terminal cancer and was in palliative care.
4. regularly announcing to staff members, including a young male — that you “haven’t got laid in a long time” and you desperately “need a root”.
5. regularly using vulgar / obscene language in front of the staff — particularly using [an identified phrase] to describe critics and people who disagreed with you.
6. ringing a staff member during business hours while you were under the influence of alcohol- and then giving orders which seriously harmed that staff member and led to their resignation,
7. requiring untrained staff members to take suicide calls or calls containing details of graphic sexual assault at all times of the day, from war veterans.
8. the office staff becoming the target of a credible, unresolved death threat from an Australian terrorist / ISIS supporter (or supporters) but then failing, along with the Commonwealth, to put in place proper security measures, despite a total of 20 official office security threat referrals being made to the AFP and other security agencies over a 2.5 year period.
9. regularly swearing at, abusing and bullying staff members, including myself and Fern.
10. criticising most staff at some stage for poor work performance, while the facts and official records showed the opposite.
11. constantly ringing staff outside work hours, on weekends, on sick leave and on recreational leave raising petty personal and work related issues.
12. regularly abusing the Office Manager because she took action to prevent questionable claims and behaviour relating to your personal travel and accommodation.
13. regularly abusing the Office Manager because she took action to prevent breaches of standing orders, contempt of parliament and questionable behaviour relating to your pecuniary interest register.
14. constantly failing to properly read official meetings / travel times and dates linked electronically to your IPhone, while then blaming the Office Manager for your own failure to note the dates and times.
Putting aside the obvious fact that part of any competent Chief of Staff’s role is to make themselves aware of and take action to avoid any threat to the physical, mental or public reputational well-being of their employer — to be forced to answer the charge in a show cause letter that the Office Manager and myself spied on or excessively monitored your behaviour — given the above facts and at times your unpredictable behaviour, resulting in frequent explosive public/parliamentary demonstrations, we find it an insult and very hurtful that we have to defend ourselves from false and defamatory claims.
In summary
Our response to the individual points outlined in the show cause letters to both myself and Fern Messenger is that they are baseless, factually incorrect, malicious, designed to hurt our personal and professional reputations and grossly defamatory.
We will take every opportunity to defend our personal and professional reputations and reserve the right to take legal action against any person who repeats or rebroadcasts these easily disprovable lies.
The fact that your show cause letters fail to reasonably and properly raise questions about our competencies in the roles of Office Manager and Chief of Staff, while also conveniently ignoring the massive workload imposed on us by yourself, and the highly dangerous and unsafe workplace your actions have caused, indicates that your correspondence is unbalanced, unfair, misleads by omission and is designed to illegally construct our dismissal.
It is important to note that the majority of the staff have at varying stages over the last 2 years expressed to both of us their serious concerns about your behaviour.
In fact, in recent times the majority of the staff indicated to both of us that should Steve Martin, a JLN number 2 senate candidate have been successfully elected as a senator for Tasmania, then the majority of staff would like to leave your employ and immediately work for Mr Martin.
These show cause letters by yourself may have been based on false reports from fellow staff who may have been coerced by you or you have just made up the allegations to suit your purpose to quickly terminate our employment.
If the staff were allowed to express their views about your behaviour without the threat of dismissal and losing their income for the next 5 years, it is our firm view that they would agree with everything stated in this letter.
We will take every opportunity to give fellow staff an opportunity to swear under oath and disprove the points in our reply to your show cause letters.
We eagerly look forward to an opportunity of putting our hands on the bible and swearing to tell the truth to an appropriate tribunal of fact or court which is empowered to make a decision on whether illegal conduct and breaches of the Workplace Health and Safety Act has occurred by both you and the Commonwealth Government.
Lastly, as previously mentioned, our concerns about certain conduct and an unsafe work environment were put in an official Public Interest Disclosure and given to the Prime Minister and other authorised internal parliamentary office holders.
Approximately 6 hours and 3 mins after that official PID was made, your employment show cause letters were delivered to us by email. This now raises the possibility that your show cause letters were part of an official reprisal act as described in the Public Interest Disclosure Act 2013 after the contents of our PID were leaked illegally to yourself.
We also hereby give notice that we reserve the right to make complaints and take legal action under the Commonwealth Public Interest Disclosure Act 2013 in order to protect our legal rights.
Senator Lambie then sent a second show cause letter (the second show cause letter) on 28 April 2017:
I refer to my letter to you dated 27 March 2017 (show cause letter), and to your solicitor’s letter dated 12 April 2017, which enclosed your response to the show cause letter.
Your response to the show cause letter was sent to me, as well as to the Prime Minister’s office and a Director of Ministerial and Parliamentary Services at the Department of Finance.
Your response to the show cause letter ridiculed me and contained other sensitive information about me which is unrelated to your employment. Your decision to send it to the Prime Minister’s office was inconsistent with your obligations of good faith and fidelity. As a result I am currently considering terminating your employment on the grounds of serious misconduct.
I invite you to provide a written response to my proposed decision, together with any relevant information or material by 5:00 pm Monday 1 May 2017.
If you do not provide a response or any further information or material for my consideration by that time, I will consider the matter and decide how to proceed based on the information presently available. I will then communicate my decision regarding your employment to you.
The Messengers responded to the Second Show Cause Letter by correspondence dated Monday, 1 May 2017. This letter was also sent to the Prime Minister.
Response to Letter dated 28 April 2017
We refer to your letter emailed to our solicitor’s office on Friday 28 April 2017 at 3.57pm where you referred to our response to your Show Cause letter which was emailed to you on 12 April 2017, some sixteen (16) days after having received our letter. You now demand a response by 5.00pm on Monday 1 May 2017. In effect, we are given one (1) day to respond.
This again is a denial of natural justice and a breach of procedural fairness as we are entitled to a reasonable time in which to respond to your correspondence.
You have now had our response to your Show Cause letters for a period of nineteen (19) days and yet you have not responded to it. This delay in advising us as to the status of employment is again a breach of the principles of natural justice and procedural fairness.
Further, in your letter to us dated 28 April 2017, you are threatening to terminate our employment because of the content of our response to your Show Cause letters. We stand by the content of this letter and it will be relied upon at any legal proceedings that may flow from this matter.
We have been advised that your staff are telling people who contact your office asking for us that “… we no longer work at your office …”. Clearly, this amounts to “constructive termination” of our employment because we certainly have not been advised by you that our employment has been officially terminated.
It is our intention to keep the Prime Minister’s office fully informed as to developments in this matter and we shall be doing likewise with Ms Sharon Forester.
…
Again, we reiterate that we stand behind our response dated 12 April 2017 to your Show Cause letters and make no retraction in regards to any part of these letters. The fact that it has taken you sixteen (14) days to respond to our letter is of concern to us.
Again, we will continue to wait as to your advice concerning the status of our employment.

On receipt of this letter, Senator Lambie decided that she wanted to terminate the employment of Mr and Mrs Messenger and on 3 May 2017 she sent a letter to each of Mr and Mrs Messenger in the following terms:
Notice of termination of employment
I refer to my letters dated 27 March 2017 and 28 April 2017 and to your letters dated 12 April 2017 and 1 May 2017.
I hereby notify you that I have decided to terminate your employment under section 23(2) of the Members of Parliament (Staff) Act 1984 (Cth).
I indicated to you in my letter dated 28 April 2017 that I was considering terminating your employment on the grounds of serious misconduct. Your letter of 1 May 2017 provides further evidence that you are not prepared to comply with your obligations as an employee.
In the circumstances, I am satisfied that you have engaged in serious misconduct within the meaning of paragraph 1.07 of the Fair Work Regulations 2009 (Cth). Accordingly, I have decided that your termination is effective immediately, without pay in lieu of notice, pursuant to clause 63 of the Commonwealth Members of Parliament Staff Enterprise Agreement 2016–2019 (MOPS EA).
…
I remind you that you remain under a duty not to disclose or use any confidential information obtained by you during the course of your employment without my permission. If you fail to comply with that obligation, further action may be taken against you.
The Department of Finance will contact you in due course in relation to the payment of your accrued entitlements and any benefits to which you may be entitled under the terms of the MOPS EA.
The action taken by Senator Lambie in sending the First Show Cause Letter was reasonable because it was based on the information she had received from her staff including Ms Tyrell and Ms Balthazaar. Ms Balthazaar referred in her written statement to ‘the Messengers’ request that staff members spy on Senator Lambie’ and ‘to keep things from the Senator’.[34] Ms Sargent gave evidence that Mr Messenger told her how he likes to keep track of Senator Lambie by accessing her phone calls and messages through iCloud.[35] Ms Tyrell explained in her evidence that the 27 March 2017 letter was written because of the breakdown in the relationship between the Messengers and Senator Lambie.[36]
[34] Exhibit 8 – TB 37 at [21].
[35] Transcript P-563.
[36] Exhibit 8 – TB 24 at [39].
The first show cause letter referred to the ‘breakdown in our working relationship’ and expressly gave the Messengers an opportunity to put forward their views on the issues raised in it. Ultimately, the Messengers were not dismissed for the reasons contained in that show cause letter. The Messengers responded with their lengthy letter dated 12 April 2017 which they sent to the Prime Minister’s office. The letter also referred to the ‘Public Interest Disclosure’ which was given to the Prime Minister and other parliamentary office holders. Senator Lambie then sent the second show cause letter on 28 April 2017 noting that the Messengers’ response ridiculed her and contained irrelevant sensitive information which had been sent to the Prime Minister’s office. Once again, Senator Lambie invited a response to the issues raised in the letter and gave the Messengers an opportunity to explain why they should not be terminated. The Messengers were not terminated until after they had sent their letter dated 1 May 2017 which maintained their stated position. The letters from the Messengers clearly indicate that the employment relationship had broken down. Senator Lambie was justified in raising the matters she did in both the show cause letters because they were based on factual information either from her own knowledge or that of her staff which was reasonable to accept in the circumstances. Accordingly, the act and manner of the termination of their employment was reasonable.
I conclude that if Mr Messenger suffered an ailment (which I have found that he did not), it was suffered as a result of reasonable administrative action and therefore falls outside of the definition of injury in s 5A(1) of the SRC Act. It follows that if there was an ailment, it did not give rise to a compensable injury.
Did Mrs Messenger suffer an aggravation of a pre-existing condition during her employment?
Prior to her employment, Mrs Messenger suffered from a major depressive disorder. She contends that this condition was aggravated during her employment and relies on s 4(1) of the SRC Act which says that ‘aggravation’ includes acceleration or recurrence.
The effect of the Full Federal Court decision of Wuth v Comcare [2022] FCAFC 42 is that an aggravation of a disease does not require a physiological or psychiatric change in the employee’s condition. The Full Court held at [112] that:
There will be many cases where a physical or mental ailment can be diagnosed by a medical practitioner based upon the employee’s history, and upon studied instances of cause and effect without recourse to pathology or other diagnostic aids.
Mrs Messenger contends that there is consensus between the experts (Drs Takyar, Lovell and Ventura) that she suffered a recurrence of major depressive disorder during her employment with the Commonwealth.[37] She submits that her depression was under control until approximately December 2016 and that there is a strong consensus amongst the relevant experts of an aggravation of a pre-existing depression in late 2016 up to February 2017.
[37] Applicants’ SFIC dated 27 August 2021 at [49].
The respondent contends that Mrs Messenger did not suffer an aggravation of an ailment within the period December 2016 to February 2017.
Consideration
There is no dispute that the medical evidence establishes that Mrs Messenger suffered from depression prior to when her employment began in July 2014. She first experienced depressive symptoms in 1998 which was followed by a further three episodes in 1999 (post-natal depression), 2005 (after a miscarriage) and 2009 (after a custody battle).[38] Her treatment for depression continued after she was employed. Her maintenance dose of 100mg of Zoloft or sertraline[39] continued up until at least 17 February 2017 when she attended her general practitioner who provided her usual script for a daily 100mg tablet of Zoloft.[40] During the period of her employment up to and including 17 February 2017, Mrs Messenger made no report to her treating doctors relating to stress from the workplace. She said she was hesitant to do so until 2017. She said that her stress levels were building up in 2014 and 2015 but it became ‘too much’ in late 2016 and early 2017.[41] For the reasons set out below, I find that the evidence, including the contemporaneous medical records, does not establish an aggravation in the period of employment up to and including 17 February 2017.
[38] Transcript P-359.
[39] Statement of Mrs Messenger dated 27 August 2021 at [88].
[40] Exhibit 8 – TB 99 and TB 55.
[41] Statement of Mrs Messenger dated 27 August 2021 at [76].
I accept that there were numerous events prior to 17 February 2017 which may have caused Mrs Messenger to be stressed or upset but I am not satisfied that they gave rise to an aggravation (recurrence) of her previously diagnosed major depressive disorder. In July 2015 Senator Lambie spoke to Mr and Mrs Messenger about Kelcey Walker whose mother was ill and who had been absent from the office for some time on compassionate leave. Senator Lambie suggested to the Messengers that when Ms Walker ran out of paid leave she could take leave without pay. Mr and Mrs Messenger considered this was harsh and may have been upset by it[42] but I am unable to accept the evidence of Mrs Messenger that Senator Lambie shouted that ‘she can’t continue waiting for Kelcey’s mum to die so that Kelcey can come back to work.’[43] I accept that this may have been a difficult conversation for Mrs Messenger to have because she cared for Kelcey Walker but I am unable to accept that Senator Lambie’s conduct was inappropriate or that she yelled or behaved in a threatening manner towards Mrs Messenger.
[42] See statement of Tammy Tyrell dated 2 June 2021 at [15].
[43] Statement of Mrs Messenger dated 27 August 2021 at [45].
Mrs Messenger gave evidence, supported by Mr Messenger, that Senator Lambie used vulgar language around staff, abused alcohol and bullied her and the staff. Ms Lynd gave evidence of a very different work environment. She said Senator Lambie was ‘quite laid back’ and ‘pretty easy going’ and that there was ‘a great atmosphere’ in the office.[44] In cross examination she described the Senator as very passionate who could get quite fired up and would swear occasionally; although, Ms Lynd denied that the Senator used some very vulgar language that was put to her in cross examination. Ms Balthazaar described that by late 2016 there was a ‘toxic nature in the office’ related to Mr and Mrs Messenger which she recorded in a statutory declaration on 20 April 2017.[45] She said she was unfairly targeted by Mr and Mrs Messenger which caused her stress at the time.[46] She raised her issues relating to Mr and Mrs Messenger with Senator Lambie in December 2016.[47] Ms Sargent said she never saw Senator Lambie drinking at work.[48] In her evidence she described Mr and Mrs Messenger as toxic[49] and quite volatile.[50] She said that Senator Lambie was a wonderful person to work with.[51] Ms Tyrell gave evidence that by December 2016 the staff felt that they were not being heard by the Messengers and that they were targeted by them if they expressed disagreement. The staff generally felt frustrated with the Messengers’ management of them. Ms Tyrell made Senator Lambie aware of these staff concerns in December 2016 when she accompanied her on a road trip around the electorate.
[44] Transcript P-503.
[45] Transcript P-519 and P-520.
[46] Transcript P-525.
[47] Transcript P-520 to P-528.
[48] Transcript P-539.
[49] Transcript P-558 to P-559.
[50] Transcript P-557.
[51] Transcript P-558.
Mrs Messenger gave evidence about Senator Lambie abusing and swearing at her in front of staff when in Canberra in late November 2016 and Mr Messenger was on the phone. Mrs Messenger wanted the Senator to speak to her husband but she did not want to. The evidence from Ms Tyrell is that it was Mr Messenger who was yelling and swearing through the phone and that the Senator simply refused to speak to him until he calmed down. I accept the evidence of Ms Tyrell which is consistent with Senator’s Lambie’s evidence. The evidence suggests that Mrs Messenger was upset by the situation but that was caused by her husband’s conduct and not the conduct of Senator Lambie which I find was entirely appropriate. This is another example of Mrs Messenger painting a false picture of Senator Lambie’s conduct and exaggerating the impact it had on her.
When asked in cross examination about not taking any leave in 2014, 2015 and up to August of 2016, Mrs Messenger said that she did not feel comfortable leaving the staff on their own when Senator Lambie was there ‘so I forced myself into work because I had to protect the staff.’[52] I reject this evidence. It is contradicted by other staff members none of whom felt unsafe around Senator Lambie. Mrs Messenger was painting a false picture of Senator Lambie to assist her in her claim for compensation. Mrs Messenger was not a credible witness. Where her evidence differs from that of Senator Lambie, I accept the evidence of the Senator.
[52] Transcript P-46.
Mrs Messenger gave evidence about a death threat received in the electorate office in 2015 and said that Senator Lambie failed to make the premises safe which impacted her mental health. Senator Lambie denies failing to take appropriate action. Ms Tyrell thought the situation was managed satisfactorily and she did not feel unsafe in the office. Ms Balthazaar, who started work in the office shortly after the death threat, recalls there was an issue raised about security but said that she did not feel unsafe working in the office. In his statement to the Federal Police dated 19 March 2015, Mr Messenger said ‘We have implemented additional security measures since the letter arrived’. I reject Mrs Messenger’s evidence about the aftermath of the death threat and I consider that she exaggerated the impact it had on her.
On 6 December 2016 Mr Messenger wrote to Senator Lambie expressing his concern ‘about the harmful effect your emails are having on Fern’ and that ‘Ferns near in tears tonight after your latest emails’. Senator Lambie responded by saying that she had no idea what he was talking about and asked for a copy of the emails.[53] Mr Messenger was unable to provide any emails because they did not exist. I conclude that Mr Messenger was acting with Mrs Messenger to create false claims against Senator Lambie.
[53] Exhibit 8 – TB 51; Transcript P-255 to 257.
In addition to providing false testimony to the Tribunal, I believe that Mrs Messenger provided false reports of workplace events and exaggerated her symptoms to her treating doctors and those doctors who prepared reports for this case. For example, she told Dr Lovell that she had not taken sertraline for three years until she recommenced it due to Senator Lambie’s behaviour in July 2015. The truth was that there was no gap in her medication which remained at a consistent daily dose of a 100mg tablet up until either February or March 2017. Further, there was nothing inappropriate about Senator Lambie’s behaviour in July 2015. It follows that the factual assumptions underpinning much of the medical opinion in this matter are false and hence little weight can be given to some of the medical reports. For example, Dr Lovell said in his 21 May 2018 report:[54]
The employment related aggravation of her condition had its onset around July 2015 when sertraline was recommenced after a period of three years or longer without taking it. At that time, there were sleep difficulties. She was tearful. She was anxious regarding the protection of staff.
[54] Exhibit 8 – TB 90 p 55.
In this example Dr Lovell was misled by Mrs Messenger reporting that there was a three year gap in her medication and that she was anxious regarding the protection of staff. The factual basis for the opinion was false and therefore the opinion cannot be relied upon. However, Mrs Messenger was prepared to rely upon this opinion and did nothing to correct the falsehoods it contained. Further, it would appear that about six weeks before making the false statements to Dr Lovell about her medication, Mrs Messenger completed an income protection claim form where she had no difficulty making an accurate statement that she had been taking Zoloft from 2010 to 2017.[55]
[55] See Exhibit 8 – TB 104: AIA Initial Claim Form signed by Mrs Messenger on 21 March 2018.
It was not until 22 February 2017 that Mrs Messenger raised with her general practitioner that she was having problems at work. This is another factor that supports my finding that there was no aggravation prior to mid-February 2017. On 22 February 2017, she reported bullying, stress, difficulty sleeping and headaches. It is likely that these symptoms were exaggerated. She was referred to a psychologist at her request. This attendance at the doctor on 22 February 2017 occurred on the same day and after a meeting in the office boardroom between Senator Lambie and Mrs Messenger. There is a dispute about what happened at that meeting but both versions of events involve some confrontation. Mrs Messenger says that Senator Lambie swore and abused and bullied her when she raised the topic of Kelcey Walker. She described it as a vicious verbal assault.[56] I reject this evidence of Mrs Messenger and prefer the evidence of Senator Lambie that it was Mrs Messenger who was aggressive and angry towards her. I accept the evidence of Ms Tyrell that she heard escalated voices coming from the boardroom and saw that Mrs Messenger was very upset.
[56] Transcript P-82.
Mrs Messenger told Dr Takyar that it was the abuse and vicious attacks by Senator Lambie in late November 2016 and on 22 February 2017 that led to her ultimate breakdown. Her false reports were also made to her treating doctors in 2017 and to other medical experts in the context of her claim for compensation. I believe that Mrs Messenger provided false reports about these events and exaggerated their impact on her so as to improve her chances of successfully claiming compensation. My belief is supported by Dr Ventura who said that Mrs Messenger’s report of trauma symptoms lacked genuineness and appeared rehearsed when he saw her.
I conclude that there was no aggravation of a pre-existing ailment by February 2017.
Was the aggravation of Mrs Messenger’s pre-existing condition contributed to, to a significant degree, by her employment?
The respondent contends that any aggravation (which is denied) is, in any event, not a ‘disease’ because it was not contributed to, to a significant degree, by her employment. I have found that Mrs Messenger did not suffer an aggravation of an ailment by February 2017. However, if I am wrong, then given that any aggravation occurred in the context of her employment, I would accept that the aggravation was contributed to, to a significant degree, by her employment.
Reasonable administrative action – Mrs Messenger
Mrs Messenger contends that the date of her injury is, at the latest, 22 February 2017 which was before any administrative action was taken and therefore liability cannot be excluded by reason of ‘reasonable administrative action’ under s 5A(1) of the SRC Act. I reject that contention because, as I have found above, the evidence does not establish that there was an aggravation of an ailment by that date. The medical opinions that there was a psychiatric injury by February 2017 cannot be relied upon because they were based upon Mrs Messenger’s false reports.
In the alternative, Mrs Messenger contends that if the Tribunal finds that she did not have a condition outside the boundaries of normal mental functioning and behaviour until on or around 27 March 2017, being the date of the show cause letter, then the administrative action was not reasonable.
Before considering the issue of reasonable administrative action, I must determine if there was an aggravation of an ailment during this later period when the administrative action took place.
As stated above, Mrs Messenger’s first relevant attendance on a doctor was her general practitioner on 22 February 2017 when she reported bullying, stress, difficulty sleeping and headaches. It is likely that these symptoms were exaggerated. On 28 February 2017 she had her first appointment with Michael O’Donnell, a psychologist. He noted in a letter dated 20 April 2017 that Mrs Messenger reported and presented with ongoing symptoms of depression and anxiety due to workplace issues. His notes record her reports of abuse to her and other staff by Senator Lambie. I have already found that reports of that nature were false. He saw Mrs Messenger six times in the period up to 24 May 2017 when he recorded that she had responded very well to therapy and there was a significant improvement in her day to day functioning.
Mrs Messenger saw her general practitioner again on 16 March 2017 who advised her to increase her Zoloft. It is recorded on his consultation notes[57] that the increase from 100mg to 200mg took place on 23 March 2017. On 3 April 2017 she was given a medical certificate to be off work for seven days and she was referred to a psychiatrist, Dr Elijah who saw her on 21 April 2017. He said it was difficult to date specifically the time of injury but referred to the reported incident on 22 February 2017. His diagnosis was recurrent major depression in the context of significant and ongoing workplace difficulties with the anticipation of job loss.
[57] Exhibit 8 – TB 55 p 15, consultation notes 24 March 2017 ‘on Zoloft 100 – stepped up to 200mg daily since yesterday’.
The anticipation of job loss no doubt arose because of the show cause letter from Senator Lambie on 27 March 2017. The Messengers responded to that letter on 12 April 2017 as set out above. In that letter they referred to the long work hours and the ‘feelings of dread, depression, fear’ upon receiving the show cause letter. Further, the letter referred to ‘recent times when our physical and mental health failed us…following critical work place incidences’. The letter makes it clear that at this stage they clearly anticipated losing their jobs and engaging in litigation. After another round of correspondence, the Messengers were terminated by letter dated 3 May 2017.

The question as to whether there was an aggravation suffered as a result of this administrative action is a difficult one. After receiving the show cause letter Mrs Messenger again visited her general practitioner who for the first time referred her to a psychiatrist. She saw Dr Elijah on 21 April 2017 who found that she was suffering from a recurrence of a major depressive disorder. He was unsure about the date of injury. In his letter dated 6 February 2018, he made reference to the general practitioner’s notes of ‘a recent worsening of symptoms in the context of workplace stressors and a threat to her employment.’ Whilst I have not accepted the claims of workplace bullying there is little doubt that by this stage Mrs Messenger anticipated losing her job. Indeed, it was apparent from the content of the response to the first show cause letter that the working relationship between Senator Lambie and Mrs Messenger had broken down and it was inevitable that the relationship would soon terminate. Dr Ventura opined that the process leading to termination of her employment contributed to her condition.[58] Her medication for depression had been significantly increased by this stage. Taking all of these circumstances into account, I conclude that there is evidence of an aggravation of her major depressive disorder as a result of the administrative action leading to her termination.
[58] Exhibit 8 – TB 28 p 9 at [2c.].
The next question is whether the administrative action was reasonable and taken in a reasonable manner.
The action taken by Senator Lambie in sending the 27 March 2017 letter was reasonable because it was based on the information she had received from her staff including Ms Tyrell and Ms Balthazaar. Ms Balthazaar referred in her written statement to ‘the Messengers’ request that staff members spy on Senator Lambie’ and ‘keep things from the Senator’. Ms Sargent gave evidence that Mr Messenger told her how he likes to keep track of Senator Lambie by accessing her phone calls and messages through iCloud. Ms Tyrell explained in her evidence that the 27 March 2017 letter was written because of the breakdown in the relationship between the Messengers and Senator Lambie.
The first show cause letter referred to the ‘breakdown in our working relationship’ and expressly gave the Messengers an opportunity to put forward their views on the issues raised in it. Ultimately, the Messengers were not dismissed for the reasons contained in that show cause letter. The Messengers responded with their lengthy letter dated 12 April 2017 which they sent to the Prime Minister’s office. The letter also referred to the ‘Public Interest Disclosure’ which was given to the Prime Minister and other parliamentary office holders. Senator Lambie then sent a second show cause letter on 28 April 2017 noting that the Messengers’ response ridiculed her and contained irrelevant sensitive information which had been sent to the Prime Minister’s office. Once again, Senator Lambie invited a response to the issues raised in the letter and gave the Messengers an opportunity to explain why they should not be terminated. The Messengers were not terminated until after they had sent their letter dated 1 May 2017 which maintained their stated position. The letters from the Messengers clearly indicate that the employment relationship had broken down. Senator Lambie was justified in raising the matters she did in both the show cause letters because they were based on factual information either from her own knowledge or that of her staff which was reasonable to accept in the circumstances. Accordingly, the act and manner of the termination of their employment was reasonable.
I conclude that Mrs Messenger’s aggravation was suffered as a result of reasonable administrative action and therefore falls outside of the definition of injury in s 5A(1) of the SRC Act. It follows that her aggravation does not give rise to a compensable injury.
DECISION
The decision of the Tribunal is to affirm the decisions under review.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

...........................[sgd].............................................
Associate
Dated: 4 August 2023

Dates of hearing: 1-4, 7-9 February, 23-27 May 2022

Date final submissions received: 7 September 2022

Counsel for the Applicant: Ray Ternes

Solicitors for the Applicant: Messenger Legal

Counsel for the Respondent: Sarah Wright

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	1-4, 7-9 February, 23-27 May 2022
Date final submissions received:	7 September 2022
Counsel for the Applicant:	Ray Ternes
Solicitors for the Applicant:	Messenger Legal
Counsel for the Respondent:	Sarah Wright
Solicitors for the Respondent:	Australian Government Solicitor