Mills, A.B. v Australian Postal Commission

[1994] FCA 222

222 99-

JUDGMENT No. ....,........ ..... I .....,......

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	)
1
GENERAL DIVISION	)

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
Mrs H E Hallowes. Senior Member: Dr C Baker. Member:

and Mr D L Elsum. Member

BETWEEN:  ALAN BRUCE MILLS

(Applicant)

AND :  AUSTRALIAN POSTAL CORPORATION

(Respondent)

Coram:  Ryan J

Place: Melbourne

Date:  27 April 1994

MINUTE OF ORDERS

THE COURT ORDERS:

1.    That the application by way of appeal

2.  Thar: the declsion of the Tribunal be set aside and in lieu thereof it is declared that the applicant be entitled to compensation in accordance with the Commonwealth Employeesr Rehabilitation and Compensation Act 1988 in respect of the period from 28 September to 5 October 1990.

NOTE :	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

3.   That the respondent pay the applicant's taxed costs of the application.

m	A	)
)
VICTORIA DISTRICT REGISTRY	) No VG 422 of 1992
GENERAL DIVISION	1

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY
Mrs H E Hallowes, Senior Member: Dr C Baker, Member;

and Mr D L Elsum. Member

BETWEEN :  ALAN BRUCE MILLS

(Applicant)

AND :  AUSTRALIAN POSTAL CORPORATION

(Respondent)

Coram:  Ryan J

Place: Melbourne

Date:  27 April 1994

REASONS FOR JUDGMENT

Rvan J: This is an application by way of appeal from a

decision of the Administrative Appeals Tribunal published on 17 October 1992. That decision affirmed a decision by the Claims Manager of the respondent ("Australia Postn)

compensation under the Commonwealth Employees' Rehabilitation determining that Australia Post was not liable to pay

and Compensation Act 1988 ("the Act") in respect of an acute

stress reaction suffered by the applicant on 27 September 1990. It is common ground that the applicant was unfit for work from 28 September to 5 October 1990. His unfitness arose from what the applicant himself called an "acute stress reaction suffered on 27 September 1990". The applicant was employed by Australia Post as a supervisor/cleaner on the intermediate shift at its International Mail Centre ("IMC"). He had been on leave in New South Wales for about a week before 27 September 1990 when he was telephoned by his daughter-in-law and advised that his home had been "raided" by the Australian Federal Police ("AFP"). The following findings in respect of subsequent events have been made by the

"On arr~ving home that evening he found that some papers had been

taken and that some property was damaged. He went to see the AFP who had left their card. He was advised that he was not going to be charged with any offence and he was told to collect his belongings which the AFP had taken. The applicant told the Tribunal that he became shaky, tearful and angry. He could not sleep and he developed a pain in hrs chest. He went to see his general practitioner next day. He attended his general practrtioner for reviews on 3 October 1990 and 12 November 1990. He was referred to a psychiatrist to help him manage his stress condition.

In her reoort dated 18 December 1991. Dr Brownless advised that examination of the applicant on 28 ,September 1990 revealed he was hvoertensive and sufferina from tachvcardia. In her owinion. the applicant was suffering f>om an "acite stress react~on'; which had worsened his heart condition. No medicatron was prescribed. The applicant returned to work at the end of his recreation leave. The applicant's recreation leave records indicate that he was on recreational leave from 17 September 1990 to 22 October 1990. He seeks a conversion of ten of those days to compensation leave. Under cross-examrnation, the applicant said that he was not suffering from

a stress reactlon before he went on holidays. The applicant's s ~ c k

leave records disclose that he has suffered from an "upset stomach"

from time to time and also from anxiety.

The Tribunal is satisfied that the applrcant has a history of anxiety which was conceded in the written submissions lodged on his behalf.	His persrstent gastric problems have now resolved. The applicant	said he still feels that he 1s under suspicion at the IMC. The
med~catxon he is presently taking is the same medicatxon which he was taking before the search of hrs home by the AFP."

For relevant purposes s.19 of the Act creates a liability in Comcare, a body established under the Act, to pay compensation to an employee, as defined, who is incapacitated for work as a result of an injury.

Section 4 defines injury exhaustively by providing:

""injury" means:

(a)	a disease euffered by an employee; or
(b)	an injury (other than a disease) suffered by an employee, being a physrcal or mental injury arrsing out of, or in the course of, the employee's employment; or
(c)	an aggravatron of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravatron that arose out of, or rn the course of, that employment;

but does not include any such disease, rnjury or aggravation suffered by an employee as a result of reasonable disciplrnary action taken agarnst the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

That definition of injury requires recourse to the definition of "disease" which provides:

""disease" means:

(a)	any arlment suffered by an employee; or
(b)	the aggravatron of any such ailment.

being an ailment or aggravatron that was contrrbuted to an a material

degree by the employee's employment by the Commonwealth."

In turn, it is necessary to refer to the definition of

"ailment", also found in s.4, and which reads:

""ailment" means any physical or mental ailment, disorder, defect or
morbid cond~tion	(whether of sudden onset or gradual development)".

The Tribunal first addressed the question of whether the applicant had suffered a "disease" as defined in s.4 of the Act or "an injury other than a disease" as defined in the same The significance of the distinction between a "disease" and an "injury other than a disease" (both of which fall within the generic "injury") lies in the different relationship between injury and employment which the Act requires to be established before a liability to pay compensation arises. For a disease to be compensable it is necessary for the employment to have contributed to it to a material degree, whereas, for an injury, other than a disease, to be compensable it is necessary that it be a physical or mental injury arising out of or in the course of the employee's employment.

In its reasons the Tribunal did not articulate the meaning that it attributed to the words which define "ailment". However, it has not been suggested that the Tribunal erred by wrongly construing the definitions contained in the Act or in the meaning which it attributed to the individual words which together comprise the definitions. In any event, the attribution of meaning to the individual words is a question of fact which cannot be reviewed on the present application.

The attack that is made concerns the next step which required the Tribunal to determine whether what it had identified as an	aggravation of an ailment, rather than a mental injury, had
been contributed to in a material degree by the applicant's employment. The reasoning which led the Tribunal to that next step is set out as follows in paragraph 21 of the reasons:

"The Trrbunal does not cons~der the words "mental injury" superfluous, however, the presence of those words alone do not persuade us that the applicant suffered an injury on 27 September 1990. We do not consrder that the applicant's symptoms are more approprrately described as a mental injury. All the circumstances whlch led to the applicant attending Dr Brownless on 28 September 1990 persuade us that the applicant suffered an aggravatron of his underlying anxiety state on that day following the AFP search of his home, he suffered an aggravation of an allment rather than an injury. The applicant has a past history of anxiety. He was again treated by a psychiatrist and prescribed medication for symptoms after the search. He was not present during the search, rather, it was his reaction to observations he made on returnrng to his home which gave rrse to symptoms. He was away from his place of employment and other employees when he first suffered his symptoms. There was no sudden and immediate change or damage to hrs constitution. The appropriate test for the Tribunal to apply therefore is whether the applicant's disease was contributed to in a material degree by his employment."

Subtle distinctions may arise in seeking to characterize the issues which have to be resolved in taking that next step as

questions of fact or questions of law. Thus in Hope v

Bathurst City Council (1980) 144 CLR 1 Mason J observed at 7:

"Many authorities can be found to sustain the proposition that the questron whether facts fully found fall withrn the provrsions of a statutory enactment properly construed is a questron of law. One example is the judgment of Fullagar J in Hayes v Federal Commrssioner of Taxation (1956) 96 CLR 47, at p.51, where hrs Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees [l9151 AC 922 at p. 932, which was adopted by Latham CJ in Commissioner of Taxation v Miller (1946) 73 CLR 93, at p.97, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case withrn the provisrons properly construed of some statutory enactment, the questron is one of law only. Fullagar J then said (1956) 96 CLR at p.51:

"... this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wrgmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The 'facts' referred	to by Lord Parker ... are the facta probantia. Where the	factum probandum involves a term used in a statute, the
question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law."

However, special consrderations apply when we are confronted wrth a statute whrch on examination 1s found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens [l9731 AC 854 was just such a case. The only questron raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that

h ~ s behavrour was msulting, the questron was one of fact.

The judgment of Kitto J in NSW Associated Blue-Metal Quarrles Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309 is illuminating. Kitto J observed that the question whether certain operations answered the description "mining operations upon a mrnrng property" within the meaning of s.122 of the Income Tax Assessment Act 1936, as amended, was a mixed questron of law and fact (1956) 94 CLR at pp. 511-512. He went on to explain why this was so: "First it is necessary to dec~de as a matter of law whether the Act uses the expressions 'rn~ning operat~ons' and 'min~ng property' Ln any other sense than that which they have in ordinary speech". Having answered this quest~on in the negative, he noted that the "common understand~ng of the words has . . . to be determmed" as "a question of fact". He continued (1956) 94 CLR at p.512:

"The next question must be whether the mater~al before the Court reasonably admits of different conclusions as to whether the appellant's operations fall wlth~n the ordinary meaning of the words as so determined; and that is a quest~on of law (1941) 65 CLR at p.155: see also per Isaacs and Rich JJ in Australian Slate Quarries Ltd v Federal Commissioner of Taxation (1923) 33 CLR 416, at p.419. ~f different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Wrlliams J in the Broken Hill South Case (1941) 65 CLR 150, at p.260."

In the present case it is a question of law whether the material before the Tribunal reasonably admitted of different conclusions as to whether facts found to have contributed in a material degree to an aggravation of the applicant's ailment fall within the statutory expression "his employment".

It is necessary to give a brief account of the events which gave rise to the execution of the warrant by the AFP. In March 1990, Mr Butteriss, then manager of the IMC, became concerned about what he perceived to be a marked and unexplained increase in the use of cleaning chemicals at the

IMC . Regarding himself as unable to rule out theft, Mr

Butteriss prepared a report which referred to "irregularities"
in the use of chemicals and which requested that officers of
Australia Post's Security and Investigative Service ("the
Service") conduct a full investigation.

Mr Kenworthy, the manager of the Service, received the report of Mr Butteriss and, acting upon it, assigned Mr Nicholls of his staff to conduct an internal investigation. Mr Nicholls prepared a report in August 1990 titled "Excessive usage of cleaning chemicals - International Mail Centre" which contained allegations against the applicant in relation to the ordering and use of cleaning materials. That report and the report of Mr Butteriss of 7 March 1990 were forwarded to the AFP in August. The AFP conducted enquiries in response to the allegations culminating in the execution of the search warrant at the applicant's home on 26 September 1990. Mr Nicholls did not give evidence before the Tribunal but it appears from his second report dated 2 November 1990, which was before the Tribunal, that he assisted the AFP with its enquiries describing his role as mostly involving:

"the gathering, supply~ng, and interpretat~on of requested informat~on, and general liaison functions between both OrganLzat~ons. This role actively concluded when the Federal Police executed search warrants on the three alleged principal offenders".

Mr Nicholls was also present at the execution of the warrant, the Tribunal finding that his presence was solely for the purpose of identifying property of Australia Post.

The Tribunal negatived as a matter of fact any suggestion that	anything connected with the applicant's employment had
contributed to his underlying anxiety state as it existed when he went on recreation leave on about 19 September 1990. Those findings are set out as follows in paragraph 30 of the Tribunal's reasons:

"30. There is no evidence before the Tribunal to satisfy us that the appl~cant suffered any disease before 26 September 1990 which was contributed to by his employment. The applicant made no allegations that hrs employment was contrrbuting to any drsease before he went on recreation leave. He sought no medical treatment. He had no more than the normal concerns when rumour crrculated that materials may be missing from the workplace. We are also satisfied that those factors submitted by Mr Moulds as contrrbuting in a material degree to the applicant's anxrety state:

"(a) the poor stock control and invoicing systems

undertaken by Australia Post;

(b)	the rnstructions by Mr Butterrss to Mr Constanzo to ensure that more efficrent and effective cleanrng practices were carried out;
(c)	the mvestigatron by the security section of Australia Post rnto the depletion of cleaning fluid stocks;
(d)	the suspicions held by the Applrcant's superiors as to his guilt;
(e)	the Applicant's objectively reasonable and correct awareness of the fact that he was under suspicion;"

did not contrrbute to the applicant's anxiety state which incapacitated him for work from 28 September 1990 to 5 October 1990, the period of incapacity covered by Dr Brownless's medrcal certificate. The applicant went on h ~ s recreation leave in the normal course of events and h ~ s acute anxiety state was not contributed to by events which occurred before he went on recreation leave."

The Tribunal's findings of fact and its conclusions of law as to whether those facts constituted an aspect of the applicant's employment are intertwined in the next four paragraphs of its reasons which are in these terms:

"31. We consider that it is srgnif~cant in this application that the

applicant was on recreation leave when he suffered an episode

of acute anxrety. He was not ". ..dorng someth~ng which he was

reasonably required, expected or authorised to do in order to

carry out his duties" (Humphrey Earl Ltd v Speechley (1951) 84

CLR 126 at page 133). The applicant suffered hrs acute anxiety state as a result of observatrons he made at his home rather than at his place of employment. The only possible connection between the applicant's employment and the AFP search of his home, whrch resulted in his acute anx~ety state, is the report of the Service by Mr Butteriss and the role played by Mr Nrcholls as investrgating officer for the Service and his attendance at the search on the applrcant's home on 26 September 1990.

32.   We find that it was not what the applicant did in his employment which contributed in a positive and material way to his acute anxiety state (Ell~essy's case (paragraph 22 supra)). Nor was it "in the doing of his work" (Treloar's case (paragraph 17 supra)) which exposed the applicant to a state of affairs which in turn contributed to his anxiety state. His anxrety state, which incapacrtated hrm for work, arose after

the AFP, in discharging its duty, obtained search warrants and made the decrsion to search the home of the applicant and left it m a condrtron which upset him. There rs no nexus between the applicant's employment and h ~ s reaction to what occurred. The respondent was not responsrble for the raid and the actions of Mr Butterrss and Mr Nicholls do not provide the necessary nexus. The respondent, through Mr Butterrss and Mr Nlcholls, was not actively involved rn the preparation for, or execution of, the search. The applicant's disease did not arise as a result of any dealings he had directly or rndirectly with Mr Butterrss or Mr Nicholls. The respondent did not make an express allegation to the AFP that the applrcant was involved in a conspiracy to defraud the respondent. An employee of the respondent, Mr Nicholls was present during the search but only for the purpose of identify~ng property of the respondent if necessary. These factors do not provide the necessary causal link between the applicant's acute anxiety state and his employment.

33.    Nor can it be sard that the applrcant's employment provided an external stimulus to aggravate or accelerate his underlying condltron. What we are dealrna wrth here is a reaction to a particular incrdent, solely the >esponsibility of the AFP. The au~licant's resentment arises out of the conduct of the AFP siirch. Whether or not the applicant sought a meeting to dlscuss what was going on at the IMC through Mr Butteriss does not affect our findings. The applicant suggested that he may see his solicitor. He did not tell Mr Butteriss that he intended to see a medlcal practitioner.

34.    The applrcant has a history of heart disease and anxlety for which he has received medrcal treatment. He suffered an ailment, an acute anxiety state, as a consequence of observations he made on return to hrs home following a search conducted by the AFP. The applrcant did not suffer an acute anxlety state as a result of rumours and discussions which occurred at the IMC before he went on recreatron leave in September 1990. The applicant's employment did not contribute in a rnaterral degree to his ailment. He 1.8 therefore not entrtled to compensation under sub-sectlons 14 and 16 of the

Act. No order for costs will be made rn these circumstances".

In Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR

underlying mental illness had been contributed to by the	626 the High Court considered whether an aggravation of an
plaintiff's employment. The statutory provision there under
consideration was sub-s.6(1) of the Workers' Compensation Act
(1960) NSW which relevantly provided:

"'Injury' means personal injury arising out of or rn the course of

employment, and includes -

... (b) the aggravation, acceleration, exacerbatron or deterioration

of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation, or deterioration; ...".

In the course of his reasons, at 641, Windeyer J dealt as follows with the question of contribution:

"When the Act speaks of "the employment" as a contributrng factor rt refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must rn my oprnion be elther some event or occurrence in the course of the employment or some characteristic of the work performed or the conditrons in whrch it was performed.

The questron involved is difficult. Can the event to which a disordered mind rrrationally attributes physical sufferlng, that 1s real to the patient but delusional, be properly called a contributing factor? Ordrnary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the rncident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contrrbuting to rt. It was said that in any event she mrght have broken down sooner or later: that some other incident might have provrded a focus for her delusions. But it was thrs event at work that in fact did so."

Kitto J held it to be sufficient if it is possible to identify a contributing factor, observing at 632:

"The second ground treats the word "employment" in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. Wrth all respect, I think that to take this view is to refrne upon the word too much and by so doing to mrss what the defrnition rs manifestlv intendrna to sav. where it is possible to identify as a contrrb;ting factor to tie aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no mrsuse of English in condensing the statement of the fact by saying simply that the employment was a contributrng factor to the aggravation etc. It rs rn that sense that

I should understand the language of the defrnition."

The decision of the High Court In Semlitch was applied by a Full Court of this Court in Treloar v Australia

Telecommunications Commission (1990) 12 AAR 535 in respect of

the statutory precursor to the Act. In its earlier form the Act required that employment be a "contributing factor to the contraction of the disease". In my view, the concept of

materiality introduced into the corresponding provisions of the Act does not make less applicable the reasoning adopted by the High Court in Semlitch. In Treloar the Full Court observed at 542:

"In a l l cases t h e quest ion is whether t h e r e has been a

"con t r~bu t ion" . Consistently w ~ t h what was s a l d by Windeyer J.

"contr ibution" does not r equ i re t h a t t h e c o n t r i b u t ~ n g f a c t o r be a

causa s i n e qua non; t h e "but f o r " test 1s not appropriate nor is t h e

causa causans o r " r e a l e f f e c t i v e cause" o r "proximate Cause"

forrnulatlon.	A l l t h a t	is required	is t h a t t h e re levant	aspects of
t h e employment	add	t h e n measure	t o t h e o rea t ion of	t h e condit ion,
i ts aggravation o r accelera t ion .	They must,	i n t r u t h ,	be p a r t of	t h e

cause. I f they a r e not , then, they do not "contr ibute"."

In the present case the Tribunal found that the applicant suffered from an underlying anxiety state which predated the raid by the AFP but which, before that, had not been of such magnitude or severity as to incapacitate the applicant or preclude him from carrying out his duties at the IMC. It was further found that the applicant had suffered an aggravation of his condition resulting in incapacity. "Aggravation" is not used in the definition of "disease" in the sense of constituting an action irritating the underlying condition but rather as constituting the exacerbated state itself. The

Tribunal found that the heightened state of the applicant's

condition arose directly from the execution of the search

warrant by the AFP. As I followed the argument advanced by the applicant, that primary fact is not challenged. Rather, the applicant seeks to establish a chain of causation between circumstances at the IMC, including the referral to the AFP, and the ultimate action taken by the M P .

It was submitted by Counsel for the applicant that the poor stock control by Australia Post, instructions by MI Butteriss to staff to ensure the more efflclent use of cleaning materials and a substantial increase in the quantity of cleaning materials used as a result of that request were characteristics or incidents of the applicant's employment. It was further said that it was these characteristics or incidents that led to the internal investigation and the referral to the M P culminating in the raid.

In rejecting those contentions, the Tribunal attached significance to the fact that the applicant had been on recreation leave when he suffered the episode of acute anxiety precipitated by the AFP "raid". However, the fact of being on leave does not preclude an employee from exposure to some event or occurrence in the course of the employment as that concept was explained in Semlitch's case. The real question is whether the "raid" with all its attendant features was an incident or state of affairs to which the applicant was exposed in consequence of his employment, and to which he

would not otherwise have been exposed. Alternatively, to adopt the language of this Court in Treloar's case, the	question is whether the "raid" was an "aspect of the
(applicant's) employment" which added its measure to the aggravation of his condition.
It is true that the applicant, at the time of the "raid" was not "doing something which he was reasonably required, expected or authorized to do in order to carry .out his duties". However, that formulation quoted by the Tribunal from Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133, and others like it, including those in Semlitch and Treloar, were not framed as exhausting the connotation of "employment" in this context. In Speechley, the employee was injured in a motor car accident during a luncheon break which had been extended and taken so far away from the place of employment that Dixon J considered that the journey could not be regarded as reasonably incidental to the employment. In Semlitch, the employee suffered a muscular strain at work which aggravated a previously existing delusional condition so the High Court did not have to consider, as a possible contributing factor, any aspect of the employment other than an occurrence in the course of the work.
In Elleissy v Australian Telecommunications Commission (1989) 18 ALD 240 the applicant claimed compensation for exacerbation of a previous back injury. It was therefore appropriate to adopt the test in Semlitch as Hill J did by saying at 243:

"The issue for considerat~on under the Act is whether what the worker

Ln fact does Ln his employment contr~butes in a positive and material way to the contracting of, acceleration of, or aggravation of the applicant's illness."

In Treloar the applicant contracted a malignant melanoma of his right leg. He contended that the contraction or aggravation of that disease had been contributed to by his exposure to sunlight for long periods while working as a Telecom linesman. Thus, that case, too, involved a physical injury or aggravation where the only claimed connection with

employment was said to be with the actual doing of work.

Mental illness was considered by Davies J in Westgate v

Australian Telecommunications Commission (1987) 17 FCR 235

where there was what his Honour regarded as a finding of fact that events occurring in the course of the applicant's work had brought about an aggravation of his depressive state although the Tribunal had characterized the aspects of the work relied on as no more than "the common expectable frustrations of almost all work in a complex organisation".

Nor does the fact that the aggravating incident occurred at the employee's home, or away from his place of employment, preclude it from being an aspect or incident of the employment. Thus, a visit or telephone call by the employer to the employee's home may be sufficiently connected to the employment relationship to satisfy this element of the requirement of contribution by the employment which is erected by the definition of "disease".

between the applicant's employment and the AFP search of his	The Tribunal next suggested that "the only possible connection
home, which resulted in his acute anxiety state, is the report of the Service by Mr Butteriss and the role played by Mr Nicholls as investigating officer for the Service and his attendance at the search of the applicant's home on 26 September 1990". That analysis, in my respectful opinion, overlooks the fact that the AFP search was part of an investigation, instigated by the employer, into alleged mis- appropriation by the employee of cleaning chemicals which he was required to use, and for which he was responsible, in the course of his employment. It is true that in the next paragraph the Tribunal concluded "There is no nexus between the applicant's employment and his reaction to what occurred. The respondent was not responsible for the raid and the actions of Mr Butteriss and M r Nicholls do not provide the necessary nexus". However, as I understand the statement that "the respondent was not responsible for the raid", it reflects only that the decision to conduct the search, and the selection of the time and place at which it was conducted, was solely that of the AFP. This understanding is borne out by the statement in para 33 of the reasons that "what we are dealing with here is a reaction to a particular incident, solely the responsibility of the AFP". The question is left open whether the making by the AFP of that decision was reasonably incidental to some aspect of the applicant's employment. The interposition of the AFP between the employer
and the conduct of the search was not, I consider, sufficient to break the nexus created by the employer's instigation of an investigation into the presumed theft of cleaning materials by
one of the cleaners whom it employed.
The Tribunal's conclusion is supported by dicta in an earlier decision of the Tribunal constituted by Hartigan J, Dr Davis
and Mr Pavlin in Re P y l e and t h e Commonwealth of A u s t r a l i a
(1988) 15 ALD 327. In that case, a member of the AFP
contended that, amongst other things, the prosecutlon of certain disciplinary proceedings against him had contributed to the aggravation of a depressive state from which he had suffered. The Tribunal accepted that other aspects of the applicant's employment had contributed to the aggravation of his depressive condition. However, as to the disciplinary proceedings, after referring to the passage from the judgment of Windeyer J in Semlitch quoted above, the Tribunal said, at

"We do not consider that the provlsrons of the Australian Federal Police Act 1979 and the regulat~ons which prov~de for disciplinary offences and for the determinat~on of such offences allow the submrssion to be made that any stress caused by Mr Pyle's case or any delay in its prosecutlon was a contr~butron by his employment. The discrplinary proceedings and its prosecution arose as a result of Mr Pyle's misconduct. The proceedings and their prosecutron was not in our vrew events or occurrences Ln the course of employment nor were they a characteristic of the work performed or the condrt~ons in which the work of a Federal policeman was performed.

In our view Mr Pyle became liable to prosecutlon because he fell within the amblt of the disciplmary offence because he was qualified so to do by reasons of his appointment as a pol~ce officer. HLS employment as such did not contribute to the holding of the discrpl~nary proceed~ngs taken in respect of his offence nor did it contribute to any delay rn the prosecutron of those proceed~ngs. In our view there has been a farlure to show "any employment" of the applicant contributed to the aggravation of disease".

As I have indicated, that passage was not essential to the

Nevertheless, I have weighed it carefully as the unanimous

reasons for the Tribunal's decision in that case.

considered conclusion of a judicial President and experienced members of the Tribunal on facts closely analogous to the present. However, it appears to regard misconduct of an employee giving rise to disciplinary proceedings as incapable of occurring in the course of the employment. If that view were correct, the stipulation in S. 14 (3) of the Act would be unnecessary. That sub-section provides that compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee unless the injury results in death, or serious and permanent impairment.

Despite the respect which I accord to the passage from Pyle quoted above, I have been persuaded by the reasoning of the High Court in Johnston v The Commonwealth (1982) 150 CLR 33 to take an expansive view of the requirement that the employment must contribute to the aggravation. In Johnston the appellant's son had, in 1970, been serving in the Australian Navy when he reported to a military hospital in Vung Tau in Vietnam complaining of pain in the region of the bowel. He was wrongly diagnosed as suffering from haemorrhoids and it was not until 1974 that he was correctly diagnosed by doctors in Melbourne as having cancer of the bowel. By then it was too late to arrest the progress of the cancer and he died in January 1975.

In the joint judgment of Gibbs CJ, Mason and Wilson JJ, it was

observed at 340:

"(2) Did the employment contribute to the aggravation?

Mr Burchett argues for a negative answer to this question. He points to ev~dence that the hospital at Vung Tau was a good hospital, with

excellent medical facilities. In fail~ng to d~agnose the presence of

a cancerous cond~tion the doctor merely made a mistake. It was a mistake that could have been made had Andrew sought advice in San Francisco or Sydney or anywhere else. The fact that it was Vietnam under war conditions was immaterial. In our opinion, it would not matter whether the wrong diagnosis which led to the aggravation of the disease was made in Sydney or San Francisco. The significant facts are that at all material times Andrew was serving in the Navy, he was subject to regulations which imposed a duty upon him to keep himself fit, medical facilities were provided within the armed services to keep servicemen flt and healthy, and in the ordinary course of events servicemen were expected to use those facilities

rather than to seek medrcal attention outside the service. It was entirely appropriate that Andrew, suffering from pain in the bowel region while in Vietnam, should present himself to the hospital at Vung Tau for treatment. He was told that he was suffering from haemorrhoids and grven medical supplres with which to alleviate the discomfort. Mr Burchett sought to weaken the link between the employment and hrs condition by relying on the fact that he drd not seek any further advice untrl 1974. However, the evidence is that the condrtion from whrch he was told he was suffering was not uncommon in the Navy. The fact that Andrew persevered with the advrce he was glven in 1970, until glvrng thought to having an operation in 1974, does not rob the initial erroneous dragnosis in 1970 of any contribution which it may be found to have made to the worsening of his condrtion.

We are unable to accept the Commonwealth's submissron. Whatever might have been the course of events rf Andrew had remained a civilian, it seems plain to us, on the basis of the findings of the Tribunal, that the course taken by the disease between 1970 and 1974 was a direct consequence of the failure in 1970 to diagnose its presence and thereafter to provide appropriate treatment. That failure occurred in the course of hrs employment and in our opinron was related directly to it. No further conclusron rs necessary to

establish that the employment was a contribut~ng factor to the

aggravation of the disease".

I similarly regard the aggravation of the present applicant's

condition as a direct consequence of the "raid" by the AFP on his home. That "raid", being for the purpose of searching for cleaning materials belonging to his employer which had been alleged by his employer to have been misappropriated by him while working as a cleaner, occurred in the course of his employment and was, I consider, directly related to it. Indeed, the Tribunal seemed implicitly to acknowledge a relationship between the AFP investigation and employment when it said at the end of paragraph 29 of its reasons:

"In the Tribunal's opinron lt would be appropriate for management to debrief employees at a work srte after an investrgation has been completed if employees are aware that an rnvestrgatron has been undertaken".

In arguing against the conclusion which I have just reached,

Mr McInnis for the respondent, contended that considerations

of public policy ought to weigh with the Court in excluding investigations of alleged criminal offences as aspects of employment for the purpose of this legislation. However, I consider that the wide connotation of employment which I have preferred is available as a matter of construction and being favourable to the applicant should, in accordance with established principle, be adopted; see e.g. Wilson v Wilson's

Tile Works Pty Ltd (1960) 104 CLR 328 per Fullagar J at 335. If the legislature wishes to give effect to the public policy for which Mr McInnis contended, it must carve another exception out of the aspects of employment which can contribute to the ailment or aggravation as it has already done by s.14(3) discussed above, in respect of an injury that is caused by the serious and wilful conduct of the employee.

For these reasons, the applicant should succeed in fixing Australia Post with liability under the Act. Since all the facts on which my reasoning has proceeded have been found by the Tribunal or are not in dispute, the matter should be disposed of by this Court in accordance with the views

Pty Ltd (1988) 22 FCR 157. That is particularly so where, as

expressed, for example in Commissioner of Taxation v Emmakell

here, the claim for compensation is in respect of an absence from work for only a matter of days. Accordingly, the orders of the Court are:

1.	That the application by way of appeal be allowed.
2.	That the decision of the Tribunal be set aside and in lieu thereof it is declared that the applicant be entitled to compensation in accordance with the Commonwealth Employees ' Rehabilitation and Compensation

Act 1988 in respect of the period from 28 September to 5

October 1990.

3.   That the respondent pay the applicant's taxed costs of the application.

I certify that this and the

preceding nineteen (19) pages are a true copy of the reasons for judgment of his Honour M r Justlce Ryan

Associate: Q,&&	l&&
Date: A3	(94 $

Counsel for the applicant:	Mr A Moulds
Solicitor for the applicant: McMullin Coate & CO
Counsel for the respondent:	Mr McInnis

Solicitor for the respondent: Sparke Helmore Withycombe