Pham and Comcare - [2002] AATA 936

DECISION AND REASONS FOR DECISION [2002] AATA 936

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/372

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CHARLES PHAM
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date10 October 2002
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  ..Sgd. Mr J. Handley...
  Senior Member

COMPENSATION -
Applicant engaged by Navy as a probationary sub-lieutenant to complete degree in dentistry - alleged discrimination, harassment, fabrication of documents, provision of faulty equipment - applicant unsuccessful in 4th year of degree - whether any material contribution to injury by employment - decision affirmed.
Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

10 October 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision made by the respondent on 1 February 2001, which affirmed a decision made by primary determination on 28 June 2000. The latter decision determined that Mr Pham's claim for compensation be denied.
The hearing commenced on 18 September 2002. Mr Pham appeared without representation. Mr Lenczner of counsel appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons.
Mr Pham is presently 30 years of age, having been born on 11 March 1972. He was previously employed by the Department of Defence as a probationary sub-lieutenant in the Royal Australian Navy ("RAN"). He enlisted on 5 January 1996 and was engaged as an undergraduate dental officer. His dental studies were to be completed at the University of Queensland.
Charles Pham
In support of his application, Mr Pham relied on written submissions lodged, an Affidavit lodged by him in other proceedings in the Federal Court, some documents lodged during the hearing and his oral evidence.
In his written submissions, the applicant recorded that he was a "Australian citizen of oriental racial origin residing permanently in Australia". He stated that he held a Batchelor of Science Degree ("BSc") with honours from Melbourne University and commenced studies as an undergraduate student in the dental school/hospital at the University of Queensland after his appointment to the RAN as a probationary sub-lieutenant. It was submitted that the terms of his service with the Navy required provision to him of tuition fees, books, instruments and other "academic accessories". In return, the applicant accepted responsibility of providing "such dental services to the defence force both on land and at sea".
The applicant submitted that during the 1996 and 1997 academic years, the University and the RAN through its lecturers, instructors and tutors and naval officers at the Naval Base "treated" him "less favourably than fellow non-Asian and more able bodied students, and or non-Asian able bodied naval officers". The applicant asserted that "the ongoing harassment and discrimination conspired by both the University of Queensland and the Royal Australian Navy led to the post traumatic syndrome and the revisiting of childhood persecution as a Vietnamese refugee in concentration camps". Further, Mr Pham asserted that the University and the Navy "conspired to pervert the course of justice and to abuse of power and process by fabricating documents". He also asserted that an honorary naval legal officer "refused to represent" him on his appeals and conspired with the University in fabricating documents.
Additionally, Mr Pham asserted that he was treated "less favourably compared to other dental students who held defence scholarships" and he also asserted that he was "treated less favourably compared to MDN COLES" who had experienced similar academic difficulties. Mr Pham alleged that Major Hume and the Defence Ombudsman denied him access to "proper defence appeals process by failing in their duties to investigate" the above allegation and that the RAN and Major Maree Riley conspired to prevent proper treatment prior to discharge. It was also alleged that there was "no proper medical clearance for the applicant prior to discharge" contrary to naval regulations and "without proper medical clearance the applicant has not been able to lead a normal life that has been beset with ongoing health problems". It was submitted that ". . . needle stick injuries caused while on duty with the Royal Australian Navy and persecution at the hands of the University of Queensland and the Royal Australian Navy have caused post traumatic syndrome and the fear of returning to dentistry despite the University's offer".
Mr Pham also relied on a 25 page Affidavit he submitted in Federal Court proceedings V689 of 2000. Heerey J dismissed those proceedings on 30 July 2001. His Honour made that decision by reason of the failure of Mr Pham to appear on the day of hearing. Subsequently, Mr Pham lodged an appeal against that decision and on 1 March 2002 a Full Federal Court of Drummond, Marshall and Finkelstein JJ dismissed the appeal.
Mr Pham pleaded similar allegations in the Affidavit to those that were contained in the submissions above. Additionally, insofar as the University of Queensland was concerned, it was alleged that he was "forced to utilise unsafe unstable defective dental chairs/equipment during the 1996 and 1997 academic years despite his pleadings and cries for help to the demonstrators, nurses, clinic administrators and ultimately to the dean of dentistry"; that he attained numerous "needle stick injuries" through the use of defective dental equipment; that "patients were crying in the dental chair/environment through fear for their safety"; that letters had been written by senior members of University staff which were sought by the applicant "as evidence of a sustained and deliberate campaign of intimidation and bullying against the applicant and other non-Caucasian students"; that he was "deliberately terrorised and humiliated and denigrated in the presence of his patients and fellow students by demonstrators and tutors"; that Professor Gregory Seymour "threatened to ruin the applicant's academic record so that the applicant wouldn't even be able to use his science degree to get into another university"; that he was denied representation before the Senate Appeals Committee of the University . . . "contrary to the rules of nature justice"; that his "written appeal letter" to the Senate Appeals Committee was "deliberately withdrawn" and the University "sought to cover up the discrepancy by falsifying university documents and minutes"; that Professor Seymour "continuously lied to the Senate Appeals Committee regarding examination papers being remarked by independent examiners outside the dental faculty"; and "Asian and oriental students at the time felt aggrieved at their treatment at the dental/faculty school and they intimated to the student group and voiced their concerns that the treatment was racially motivated".
Insofar as the RAN was concerned, Mr Pham alleged in his Affidavit that he was "deliberately not supplied with all the books and dental instruments and other academic accessories needed by him for his course which were provided for all other undergraduate naval air force and army officers"; that the Navy "broke a verbal contract to provide the applicant with all the time and space in order to perform his academic duties by serving him with a notice to show cause why the applicant should be retained in the naval [sic]"; that the honorary legal officer Commander Hume "refused to provide assistance in drafting the notice to show cause and subsequent appeals to the Chief of Defence Force without any reasons"; that "the RAN in the form of Commander Hume, a barrister at law, deliberately withheld evidence that was vital to both the University Senate Appeals Committee and the notice to show cause and subsequent appeals to the Chief of Defence"; that Major Riley, a psychiatrist, "refused to provide medical assistance prior to discharge" as requested by him; that the RAN "refused to investigate claims of discrimination and fraud and lies"; and "conspired . . to fabricate lies in order to deny the applicant his education and his livelihood".
Thereafter, Mr Pham pleaded that the respondents (the University of Queensland and the RAN) unlawfully breached the Human Rights and Equal Opportunity Act 1986 and particularly the instruments of the International Covenant on Civil and Political Rights; the Declaration of Protection of all Persons from being Subjected to Torture and other Cruel Inhumane or Degrading Treatment or Punishment; International Labour Organisation Discrimination (Employment and Occupation) Convention ILO111; Declaration on the Rights of Disabled Persons; the Racial Discrimination Act 1975; and the Disability Discrimination Act 1992.
In his evidence, at this Tribunal, Mr Pham said that from the beginning of the 1996 academic year he was "going well" in his dental course, but he noticed that there was a "shift in treatment from the demonstrators at the school – they treated me and patients differently". He said that he was "subjected" to faulty equipment which "caused my health problems – exacerbated by treatment from the Navy".
Mr Pham also said that the RAN "conspired with the University to deny my appeals process" and refused to investigate allegations of improper conduct by the University. He said the documents were "fabricated" which caused him to develop "siege mentality".
Mr Pham said that eventually the University and the RAN harassed and discriminated against him. When his appeal process was denied, he said a navy medical team refused to treat him and offer him the treatment that was available to other naval members. He said the Defence Forces Ombudsman refused to investigate his allegations. He said that without a "proper medical clearance" he was unable to provide evidence of his illness, however he relied on reports provided by Doctors Richardson, Hogan, Wilke and Arumugam (reports found within the T documents).
Mr Pham said that he relied on his written submissions and at the conclusion of his evidence said that he had no idea why Comcare had rejected his claim.
In cross-examination, Mr Pham said that he had completed his BSc with honours at Melbourne University in 1993. He enrolled in dentistry at the University of Queensland because it was prepared to exempt him from the first year of study (by reason of his Science degree). Accordingly, he commenced dentistry in Queensland in 1994, then undertaking the second year of that degree course. He said that he completed the second and third years in 1994 and 1995 respectively without "problems". Whilst he was undertaking that course he met other members of the RAN – specifically a Lieutenant Dugan – who recommended that he apply to the RAN for a scholarship. He was told that the RAN "need dentists". Eventually Mr Pham did apply to join the RAN and qualified for a naval scholarship. The scholarship provided him with an income of $20,000 per annum yet despite his enlistment, the main focus was the completion of the degree in dentistry. Mr Pham said that he was sent to HMAS Creswell in NSW to learn navy protocol for a period of two weeks before the academic year started in 1996. Thereafter his contact with the RAN was confined to attending meetings with a liaison officer, Lieutenant Shanks. Mr Pham said that Colonel Roberts supervised him and with whom he developed a friendship. A dispute apparently emerged when it was alleged that Mr Pham had failed to salute Colonel Roberts on an occasion when they were both off duty and when wearing civilian clothing. Mr Pham said that Colonel Roberts lodged a complaint against him of failing to display respect which was eventually investigated by the Defence Forces Ombudsman. He said there had also been a complaint lodged with the RAN, however the "appeals committee" had fabricated documents and Colonel Roberts discriminated against him. Thereafter the only contact between the applicant and the RAN was at liaison meetings with Lieutenant Shanks, participation in an Anzac Day parade and a meeting with Commander Hume to discuss legal assistance and representation at an Appeals Committee hearing.
Mr Pham said that Commander Hume was a barrister in private practice in Brisbane, who was also a member of the Naval Reserve. He said the "Naval legal service" referred him to Commander Hume to obtain advice and assistance with respect to the appeal. Mr Pham said that he also sought advice from Commander Hume with respect to the complaint that Colonel Roberts had lodged against him.
Mr Pham eventually obtained access to some correspondence forwarded to Commander Hume by the Director of Student Administration, being an index of documents lodged at the Senate Appeals Committee in February 1997 (Exhibit 3 to the applicant's Affidavit). Mr Pham said that this correspondence was indicative of the fabrication the Appeals Committee committed concerning documents that he had lodged and/or failure of the Appeals Committee to act on his complaints. He pointed to a letter of 3 June 1997, addressed to Commander Hume under University of Queensland letterhead, which includes reference to the applicant's submissions dated 31 January 1997. The index records that that letter "was received after the business papers for the meeting on 6 February 1997 had been circulated, it was tabled at the meeting". Another letter, in virtually identical terms and bearing the same date, is also part of exhibit 3 however the index of documents does not include a reference to Mr Pham's letter of 31 January 1997.
Mr Pham said that Commander Hume refused to act for him after he eventually obtained a copy of the submissions completed for the Senate Appeals Committee. He was also submitted that the Committee failed to assess his grievance because the submissions were not received. Mr Pham said that he "knew" that his submissions were not in the Minutes of the Grievance Committee meeting and it followed therefore that his grievances had not been considered.
Mr Pham failed his 1996 academic year but was permitted to re-enrol in 1997 to repeat the fourth year. Mr Pham was also unsuccessful in that year, however when he was asked at the hearing to confirm that the University offered the opportunity to re-enrol in 1998 under certain conditions, he said that Professor Seymour, being the head of the Department, fabricated documents. He said that he had approached the television programme "60 Minutes" and the Health Minister concerning the way the University had treated him. Mr Pham said that when Professor Seymour learnt of these representations he asked Mr Pham to sign a waiver permitting him to re-enrol in 1998 if his allegations were withdrawn. Mr Pham acknowledged that one of the earlier conditions Professor Seymour imposed was that he attend a psychiatric examination before the University would consider re-enrolment. Mr Pham agreed that he did not attend the doctor because he was "ill". Additionally, Mr Pham said that he did not accept the terms the University imposed to re-enrol because he "did not want others to go through what I had to go through"'; he was seeking reasons for the refusal to re-enrol; he was seeking reasons for the denial to him of documents; he was concerned at the treatment by the University of patients; he was concerned that his political beliefs were being suppressed; that he wanted to continue to have access to an education and he preferred to pursue the appeal.
Mr Pham was also asked a number of questions concerning his evidence of a "change of attitude" by Doctors Smythe and Brown who were demonstrators in the clinical faculty. Mr Pham said that "demonstrators" are qualified persons who supervise student procedures with patients in a clinical environment. He said that Doctors Smythe and Brown first demonstrated in 1996, however he noticed a change of attitude at or about the time that he and patients were complaining of defective equipment and dental chairs. He said one of the reasons that he failed in 1996 was because he was required to use a faulty dental chair, yet the demonstrators insisted that he continue to use that chair despite his complaints.
Mr Pham said that he continued to complain to Doctors Brown and Smythe and asked to be provided with another chair, despite chairs being available. He said that his request was refused. Nonetheless, Mr Pham said that he did not "want to make trouble – I just wanted to get through the course".
At this stage of the proceedings, there was apparent confusion as to what Mr Pham intended by the frequent use in evidence – and in his written submissions - of the equipment described as "faulty chair". Mr Pham said that a "faulty chair" comprised a "package" of chair, dental equipment, suction equipment and instruments. He said that he suffered needle stick injuries because of the faulty equipment and he found it difficult to complete clinical work because chairs were not secured. He said there were occasions where patients were refused treatment or if they attended the clinic, had to wait considerable periods of time or were told to come back because work could not be completed. The effect of this was that the applicant was unable to complete clinical work, which affected his ability to satisfy course requirements. He said that the University did engage engineers who were responsible to repair faults but more often than not nurses were made available to hold and apply suction equipment and to spray water in the absence of faulty water pumps. Mr Pham agreed that the University replaced chairs in 1997 and other equipment which then performed satisfactorily however at that time he said that he was given differing instructions by Doctors Smythe and Brown and was, on occasions, abused by Dr Smythe.
With respect to the subject results, Mr Pham said that he was "set up to fail and then called inferior". He said that he was "set up" by his demonstrators yet he regarded himself as being an experienced student who was given defective equipment. He said that he was discriminated against and referred to another person in the engineering faculty who had failed but was reinstated. Mr Pham however acknowledged that he did not know details of the circumstances of that person's reinstatement.
Mr Pham eventually finished with Queensland University in early 1998 and returned to Melbourne. He said that until 2000 his time was occupied "putting papers together for HEROC". He said he did not work. He agreed that he made an application through Centrelink for a pension or benefit and was referred to a job network provider where a work programme was discussed. Mr Pham said that he could work designing computer web sites, however he did not commence work because he obtained a medical certificate from Dr Arumugam who certified incapacity for six months between 7 February 2001 and 6 August 2001. Mr Pham said that or about that time he was suffering hallucinations, dizziness and was angry. When asked whether he was well enough to work the applicant said that that was a matter for his doctors. He was asked on a number of occasions to express his own opinion about his capacity for employment at or about that time and said that he was not qualified to do so and deferred to the opinion of his doctors.
Mr Pham was then taken to a number of the T documents. At page 75 is a memorandum to Professor Seymour where it was alleged that a patient had travelled a considerable distance to obtain a denture that Mr Pham was to provide. The memorandum records that Mr Pham refused to see the patient because "the work was not ready" and that the patient had "informed the receptionist that Mr Pham asked her not to say anything otherwise he would get into trouble". The reason stated for the patient not being seen by Mr Pham was "the required laboratory work was not ready and was at home". This memorandum was alleged to be completed after Mr Pham failed to have a denture available for a patient. It was said that the patient was an elderly woman who had travelled many hours to keep the appointment and who was very dissatisfied with her treatment by Mr Pham. Mr Pham denied that he had asked the patient not to notify the receptionist, that he had failed to see her but did agree that the work had not been completed. He said that this was because of the faulty equipment and dental chair that he was expected to work from. Additionally, he said that he was under no responsibility to telephone the patient and tell her not to attend the appointment and explain that the work had not been completed.

Approximately three weeks later, (page 76) another memorandum was written to Professor Seymour complaining that Mr Pham had telephoned a patient and cancelled an appointment. Mr Pham agreed that he did ring the patient and despite the explanation given for his failure to ring on the earlier occasion, he said that he had learnt by that experience and had been counselled by Professor Seymour in the interim.
The applicant was then referred to a memorandum at page 77 where an Associate Professor W Kim Seow reported to Professor Seymour that Mr Pham failed to attend a dentistry session and did not provide any explanation or medical certificate for his absence. Mr Pham agreed that the author of the letter – Professor Seow - was "of Asian appearance", however at this stage of the hearing Mr Pham refused to acknowledge any of the documents unless the documents recorded that a copy had been sent to him. The applicant said he was unable to agree or disagree with the contents of any other documents and was unable to answer any questions from Mr Lenczner concerning these documents, unless they indicated that a copy had been sent to him.
At page 83 is a letter Professor Seymour wrote to the applicant's liaison officer, Lieutenant Shanks on 13 February 1997. This letter indicated that a number of supplementary examinations had been granted, but the applicant was unsuccessful in those examinations and the university senate denied his appeal. Professor Seymour then recorded "I have today, interviewed Charles and I am sure that although bitterly disappointed at present, he nevertheless, will be successful. Charles has a lot of potential and I am sure that he will ultimately be a successful dentist and Naval Officer. I would therefore, encourage you to maintain Charles' scholarship and allow him to complete the course."
Mr Pham said that upon reflection this letter brought back memories of the "treatment" that he had been given by the University, which was worse than the knowledge that he had been unsuccessful in his examinations. He said it brought back memories of the time when he was a refugee. When asked if his "treatment" was as bad as he described why he would wish to stay on at the University and not return to his family in Melbourne, Mr Pham said "I didn't think that they would continue my complaint at HREOC".
Between pages 84-88 inclusive, are a number of memorandums written by University staff concerning Mr Pham's performance and his examination results. Comments are made as to the results achieved and Mr Pham's attitude to study as his lecturers perceived. Reference was made to Mr Pham submitting an assignment that he completed in an earlier year, failing to attend or being late in attendance at lectures and seminars and being perceived as having poor motivation. When asked to comment on these observations, Mr Pham responded "isn't it interesting they kept failing me but kept providing me with a faulty chair".
At page 102 is a statement Mr Pham submitted to the Senate Appeals Board dated 16 January 1998. Mr Pham refers to his dislocation from his family in Melbourne, "emotional and psychological turmoil and hardship throughout the academic year of 1996 and 1997", risk of loss of naval scholarship caused depression and anguish, difficulty sleeping, consumption of medication and attempts to satisfy subject requirements. Mr Pham acknowledged that that submission contained no reference to the faulty chair and dental equipment or the attitude towards him by his lecturers and demonstrators.
During its process of considering whether to allow Mr Pham to re-enrol in 1998, the University made available his completed work to outside examiners to assess. Mr Pham denied that those persons were "independent" because they were paid a fee by the University. He said that they were biased in favour of the University and that their credibility was "shot".
In concluding his evidence – after cross-examination had closed – Mr Pham relied on a letter from one of his former "patients", Mr Rugers, which is found at exhibit 8 of his Affidavit. Mr Rugers wrote in support of Mr Pham and described him as a person who "cared about his patients". He said that he stayed with "Mr Pham for two years despite the problems with chair no 12". He also refers to the faulty equipment and the difficulties that he experienced when being treated by reason of the equipment.
Gregory John Seymour
Professor Seymour is the Professor of Oral Biology and the Head of the School of Dentistry at the University of Queensland. He gave his evidence by telephone. Professor Seymour also swore an Affidavit on 10 April 2001 which was lodged with the Federal Court in Mr Pham's application (V689 of 2000) against the University of Queensland and the Commonwealth. The Affidavit was tendered by Mr Lenczner and received into evidence as Exhibit 2.
With respect to the evidence of Mr Pham concerning his demonstrators Dr Smythe and Dr Brown, Professor Seymour said that Dr Smythe has been a University lecturer "off and on" for over 20 years and had been continually engaged since the early 1990's. Dr Brown had been engaged as a senior lecturer for over 30 years but was now retired. He said that both demonstrators were keen to ensure that all patients were treated safely and that they recognised their responsibilities to work in a University which had an objective of excellence. He regarded the dental clinic at the University as having higher standards than a private dental clinic. In his experience both persons worked professionally. He said that Dr Smythe was a member of the Dental Board of Queensland, President of the Dental Association of Queensland and a Coach of the Dental Accreditation Council. He said that Dr Brown was a well known and highly respected clinician in Queensland who had "trained most of Queensland's dentists".
As to the allegation that the equipment and chairs in the clinic were faulty, Professor Seymour said that he first learnt of the complaints in May 1997. At that stage, the equipment was approximately 25 years old. He became aware that there had been complaints of the equipment breaking down and efforts by engineers to repair equipment had not always been successful. In June 1997, a month after he first learnt of the problem with the equipment, he arranged for all of the chairs to be replaced with "state of the art equipment" and recalled that Mr Pham's chair was the first chair replaced.
Professor Seymour said that the chair used by Mr Pham was also used by other students but no other person had complained about it. He said that Mr Pham's progression during the dental course was not seriously compromised by the chair nor was he satisfied that any patients were at risk when seated in that chair. Professor Seymour said that he was not aware of any complaints made earlier than May 1997 to any other member of the dental faculty.
With respect to Mr Pham's participation in the dental course, Professor Seymour said that Mr Pham first came to his notice in approximately June 1996 because of an inappropriate dealing with a patient. He said he then counselled Mr Pham. He agreed that the patient was Mrs Gibard (refer page 75 of the T documents). He again saw Mr Pham in August 1996 concerning his relationship with patients after it was learnt that an appointment had been cancelled (refer page 76). The next contact was later that year concerning Mr Pham's performance as evidenced by examination results. Thereafter Professor Seymour said that he had regular contact with Mr Pham. That contact generally arose from Mr Pham's failure to attend clinical sessions and what he regarded generally as "unprofessional behaviour".
As to the re-enrolment of Mr Pham, Professor Seymour said that he was not influenced by Mr Pham having approached the '60 Minutes' programme or communicating with the Health Minister. He also denied that any documents were "fabricated". He said that re-enrolment was initially refused because he suspected that Mr Pham had a psychiatric disorder which had not been, or was not being, effectively treated and he did not believe that Mr Pham should resume dentistry. At or about this time, he learnt that Mr Pham was residing in the parents' lounge at the Royal Children's Hospital in Brisbane and was evicted. This, he said, reinforced his view that Mr Pham had a psychiatric illness interfering with his ability to resume dentistry. He strenuously denied offering Mr Pham any waiver as a condition of re-enrolment and agreed that the conditions for re-enrolment were as recorded in a letter from Mr Porter, the Secretary and Registrar of the University, in a letter dated 30 March 1999 found at page 187 and 188 of the T documents.
In cross-examination, Professor Seymour said that the Dental Course conducted by the University of Queensland comprises a five year programme with the first year being conducted within the Faculty of Science. The second and third year involves theory only in the study of biological sciences and pathology. He said that students first attend patients at the beginning of the second semester in the third year for one or two sessions per week only. The fourth year of the degree requires students to attend patients for 10 sessions per week. He agreed that at the beginning of the fourth year a dental student would be clinically inexperienced.
With respect to the complaint to him of faulty equipment, Professor Seymour reaffirmed that he first learnt of it in May 1997. He said that if any complaints had been made earlier the clinic managers would have a responsibility to deal with it. He said that if there had been any complaint to either Dr Brown or Dr Smythe about the equipment he regarded it as being minimal because it was not brought to his attention. He said as Head of the School – despite the protest of Mr Pham – he could not be expected to enquire into every clinic on every day to ascertain whether there was any faulty equipment. He said he relied on a line of command and clinic managers had not brought to his attention any faulty equipment until May 1997.
Mr Pham drew Professor Seymour's attention to a letter which was written by the Secretary of the Senate Appeals Committee, which was undated but bares the date stamp of 11 February 1997. Professor Seymour had the letter in his files. It was received into evidence as Exhibit 3. The letter refers to the outcome of the Senate Appeals Committee where Mr Pham's (prior) claims of a faulty chair were considered. Professor Seymour noted (from the letter) that the Committee had found that Mr Pham's results in the subjects failed had no association with the use of a faulty chair.
Professor Seymour was also asked to comment on the reference to "rumours" (found within the letter of 11 February 1997) which is apparently a reference by Mr Pham to racially motivated comments made about him. Professor Seymour said that he was aware of the "rumours" and interviewed staff and other persons at the University. He said that he found no evidence that Mr Pham had been the subject of any racial comment or abuse. He denied that Mr Pham had been referred to within the University as a "gook". Professor Seymour said that he found a note (while giving his evidence) that if he had learnt of any further rumours being circulated concerning Mr Pham's racial origin that he would take further action. He said that after he had conducted his investigations the rumours ceased.
With respect to Mr Pham's examination results at the end of 1997 being externally re-evaluated, he said that he agreed to a request made by Mr Pham for external marking. He said the clinical results could not be reassessed however his theoretical subjects could be. He agreed that one of the external examiners – Dr Woodhouse – had previously been a demonstrator at the University in approximately 1997, however he said that Dr Woodhouse was not paid any fee for reassessing his examination results and Dr Woodhouse was not paid any fee as a demonstrator. He said that that work was conducted on an honorary basis. Professor Seymour said that it was absurd to suggest – as Mr Pham did – that persons associated with Universities would be biased in favour of the University when assessing an examination candidate because it would mean that every lecturer, in every University, when examining students, would be biased.
When Mr Pham persisted in his cross-examination of Professor Seymour concerning the faulty chair. The witness said that the chair allocated to Mr Pham was no different to the chairs allocated to other students, yet no other student had complained.
CONCLUSION AND REASONS FOR DECISION
Neither party called medical evidence and identification therefore of any injury suffered by Mr Pham can only be determined by reference to the medical reports which have been lodged.
Mr Pham did issue a summons directed to Dr Richardson to have him give evidence at the hearing on 17 September 2002. The summons was issued on 23 July 2002. The Registrar of this Tribunal gave advice to Mr Pham as to the method of service. At the commencement of the hearing, Mr Pham said that he did not serve the summons nor intended to call witnesses.
At page 89 of the T documents is a report from Dr Lasrado, who certified on 29 July 1997 that Mr Pham then suffered from Glandular Fever. On 25 February 1998, Dr Kowalczuk (page 105) reported that Mr Pham then had "symptoms related to his cardiovascular system" and upon investigation it was determined that he had symptoms of depression. Medication was provided and Mr Pham was referred to a specialist.
On 16 October 1998, Dr Heffernan of the Valley Integrated Adult Mental Health Service in Brisbane wrote a letter to Dr Richardson referring Mr Pham for treatment. He reported that Mr Pham presented with an "adjustment disorder", which was understood to have "occurred in the context of difficulties experienced during his dentistry course at UQ". It is reported that Mr Pham complained of persecution at the University. Mr Pham apparently described symptoms of depression and told Dr Heffernan that he "feels quite guilty about his inability to support his parents and his role as the eldest son in a high functioning family. They all live in Melbourne, so he has limited supports. I wonder whether he has had difficulty accepting responsibility for his failures and feels injured" (page 179).
Dr Richardson replied to Dr Heffernan on 25 November 1998 (page 180/1). Apparently having obtained a history of Mr Pham undertaking a course of dentistry at the University of Queensland it was reported:
"Charlie's family resides in Melbourne and interestingly he has a sister two years younger than him who is completing a dentistry course as well but who, it appears at this stage, is much more successful than him. As a result of his failure, Charlie has developed a siege mentality with respect to the Dentistry Department, believing them to be deliberately conspiring to cause him to fail. Although this has not yet reached delusional intensity, it is certainly an overvalued idea that is somewhat difficult to shift".

Dr Richardson continues to report that he was of the opinion that Mr Pham was not "equipped" to repeat fourth year because of his antipathy towards the department. He doubted Mr Pham's ability to resolve his complaints against the University "without the added burden of his suspicion and antagonism".

In a letter dated 28 January 1999, Dr Richardson wrote to Professor Seymour (page 182/183). He reported that Mr Pham had "presented with depressed mood, agitation and some unresolved issues with respect to his failure". He reported that Mr Pham had been treated by Dr Levine at the Royal Brisbane Hospital, apparently without progress, and had sought help from Dr Heffernan. He reported that
"Charlie was resentful of this [being unsuccessful in fourth year] and felt there was no good explanation for his failure and as a result described feels of frustration, rejection with associated depression and anxiety about his capacity to continue with his studies".

He reported that antidepressant medication had been prescribed.

Dr Wilke is a psychiatrist who wrote to the Dean of Dentistry on 18 February 1999 (page 184). He observed the letter from Mr Rugers and concluded "I think there are reasonable grounds not to dismiss Mr Pham's claim that he was discriminated against". He reported:
"Charlie Pham is an intelligent, well-mannered young man who arrived in Australia in a boatful of refugees when he was aged 7 years. Given the victimisation that he and his family escaped, it is quite understandable that Charlie would react with profound depression if he perceived himself being put in a no-win situation where his future career would be unjustly taken away from him".
Dr Dempster is a psychiatrist who reported to the Secretary of the Senate Appeals Committee of the University of Queensland on 3 March 1999 (page 185/186). He reported that he had consulted Mr Pham and was provided with copies of reports of Dr Wilke and Dr Richardson, a letter from the Senate and a copy of the letter of Mr Rugers. He found that Mr Pham
". . .does appear to be in a somewhat distressed state, with some depression and negativity, which he links mainly to his University experiences. I also believe he is mistrustful, angry and anxious to the point that he demonstrates some paranoia – that is his preoccupation with these problems having been so intense, emotionally charged, and that his insight into his own predicament and the way he reacts is adversely affected".

Dr Dempster said that

"It may be very helpful for him psychologically to resume his studies provided he has ongoing psychological support and guidance to assist him, negotiate pitfalls/situations along the way, and help him manage himself emotionally throughout this".

Mr Pham was referred to Dr Hogan, a psychiatrist in Melbourne, in January 2000 who provided a report dated 27 April 2000 (page 47). He concluded:
"Mr Pham was thus a 27-year-old man who presented with symptoms consistent with the diagnosis of major depression which appeared to commence during his dentistry training in Queensland. Mr Pham saw his development of depressive illness as being not the response to frustrations that occurred during his dentistry training, but to what he saw as a campaign of quite deliberate harassment and discrimination against him".
Dr Arumugam wrote a report to Professor Seymour on 13 September 2000 (page 192) recording that Mr Pham suffers from:
". . . post traumatic stress syndrome as he had experienced severe emotional stress when his family fled from Vietnam, then lived in a refugee camp prior to arriving in Australia. Life here has also been difficult. His father has had to look after his very sick wife who has chronic hepatitis C, and has raised his four children, Charles is the eldest, Marie is a chiropractor, Cathy is a dentist and John is a lawyer.
The whole family feels distressed that his academic training was interrupted in 1997. Charles is now in Melbourne and is currently receiving psychotherapy and doing well".
On 3 July 2001 Dr Arumugam, (who I assume is a relative of the doctor who provided the report found at page 192) who is a psychiatrist, wrote a report. The person to whom it was directed is not stated. Dr Arumugam found that the applicant and other members of his family suffered "varying degrees of Post-Traumatic Stress Disorder" due to victimisation in Vietnam, hardship associated with leaving Vietnam, hardship associated with seeking political refugee status and stressors associated with resettlement.
Dr Arumugam made a diagnosis of (page 194):
"Major Depression with Paranoid Reaction precipitated by the stressors suffered during his dental studies at The University of Queensland and the events that followed, in a man who had been made vulnerable by Mild Chronic Post-Traumatic Stress Disorder, and prominent Obsessive-Compulsive and Schizoid Personality traits".

Dr Arumugam concluded that Mr Pham (page 197):
"suffered a Major Depression as a direct result of the stressors experienced in the Dental School".

He reported that Mr Pham's personality and "chronic residual Post-Traumatic Stress Disorder contributed to his vulnerability for depression" (page 197).

On the basis of the medical reports referred to above it appears that Mr Pham has suffered from depression, anxiety, paranoia and post-traumatic stress disorder. Dr Arumugam reported that Mr Pham suffered "a Major Depression as a direct result of the stressors experienced in the Dental School". Dr Hogan reported that Mr Pham "saw his development of depressive illness as not being the response to frustrations that occur during his dentistry training, but to what he saw as a campaign of quite deliberate harassment and discrimination against him". Dr Wilke reported that having regard to Mr Pham's background as a refugee and victimisation of his family that it was understandable that "Charlie would react with profound depression if he perceived himself being put in a no-win situation where his future career would be unjustly taken away from him".
Any material contribution to Mr Pham's injuries by his employment – which would include his participation in a dentistry course – could only be established on the balance of probabilities if there was a factual basis. That is to say if, as a fact, Mr Pham did suffer from the discrimination, the harassment, the conspiracy or the fabrication of documents as he alleges (or a combination of these events) or if he was required to work with faulty equipment causing injury, frustration or inability to satisfactorily complete his studies.
I am not satisfied on the evidence heard, and read, that the applicant was exposed to discrimination, harassment, conspiracy or fabrication of documents. Nor am I satisfied that the needle stick injuries or inability to complete theoretical course work or clinical course work have an association in faulty equipment.
Despite Mr Pham's assertion at the commencement of the hearing that he was not fluent in spoken English and preferred to present his case on the basis of written submissions, I found Mr Pham to have a good command of spoken English. He gave evidence for most of the day of hearing, he responded adequately to cross-examination and was able to conduct cross-examination of Professor Seymour. That Mr Pham has completed a Science Degree with honours, completed three years of a dentistry course, commenced a PhD and a Diploma of Education is an indication to me that he does have an adequate command of spoken & written English language.
I can find nothing from the evidence heard, or from the documents read, that there was any discrimination against Mr Pham throughout his service in the RAN or during his participation in the dentistry course. In making this finding, I extend the concept of "discrimination" to that of racial discrimination and discrimination also on the basis of Mr Pham's performance as a student. Professor Seymour said that he investigated "rumours" of discrimination and found them to be unsubstantiated. Mr Pham did not identify any event, or person, who he said racially discriminated against him. If he intends "discrimination" to include his many references to conspiracy against him, and harassment of him, by the RAN and by the University, I am satisfied that no such behaviour or conduct occurred. Additionally, I am satisfied that the RAN and the University did not, at any time, fabricate documents as he alleged.
An unfortunate feature of Mr Pham's history, as may be observed by the evidence heard and the documents read in these proceedings, is his preparedness to lodge, and pursue, complaints to, and against, various bodies and persons, but claim discrimination, harassment and conspiracy when his allegations are found not to be substantiated or untruthful. Mr Pham has a long history of complaint against the Senate Appeals Committee of the University and the Defence Forces Ombudsman. He alleged misconduct and/or conspiracy against Colonels Hume and Roberts. He complained about the conduct of demonstrators Drs Smythe and Brown, he lodged a complaint concerning the conduct of Dr Riley and a number of other University personnel, including Professor Seymour. I am not satisfied that there was any factual basis, on the balance of probabilities, to support the allegations that Mr Pham has made against these persons. I am left with the conclusion that a significant feature of Mr Pham's presentation is to blame or accuse others, yet, fail to take responsibility himself.
There are many references throughout the T documents to Mr Pham failing to attend, or being late, for lectures. There are references made to Mr Pham cancelling appointments with patients or failing to have work ready for patients. Mr Pham blamed the faulty chair as the cause of his needle stick injuries yet, when he demonstrated at the hearing how he suffered such an injury it was clear – and he conceded – that he was sitting on a stool adjacent to the chair. Rather than insert the needle which was fixed to a syringe into a cap, he pricked his finger. That is more to do in my view with hand to eye co-ordination. Additionally, Mr Pham blamed his failure to complete denture work for a patient because of the faulty chair, however dentures are not made at the examination chair but elsewhere.
Professor Seymour acknowledged that the chairs in the clinical laboratory were faulty and when he learnt of the complaints he took steps to replace them. He said that the applicant's chair was no better or worse than the other chairs in the clinical facility, yet no complaints were made by any other students. In fact, other students used Mr Pham's chair when he was not attending for clinical work. Additionally, Professor Seymour acknowledged that on occasions equipment did break down and University engineers were required to undertake repairs. This was not always possible and nurses were engaged. This is consistent with the contents of the letter from Mr Rugers. I am curious that if Mr Pham did experience the wide spread unsatisfactory practices affecting him and his patients that only the letter from Mr Rugers was made available.
Having heard the evidence from Professor Seymour and having read the many memorandums to and from him within the T documents, I am satisfied that Mr Pham was regarded highly by the faculty and every reasonable attempt was made to cause and allow him to progress through his studies. He was permitted to repeat fourth year and consideration was being given to allowing him to again repeat it in 1998. I am not satisfied and find as a fact that the applicant was "set up to fail" as he alleged, indeed I believe the reverse. I am satisfied Professor Seymour is a witness of truth and the documents in support of his contentions were completed as part of routine University administration and not in contemplation of litigation. He is an independent witness and the University is not a party to these proceedings.
In all of the circumstances, having had the benefit of observing Mr Pham, listening to his evidence and reading the documents lodged, I am satisfied the conclusions reached by the doctors who drew a connection between the employment and injuries have no basis in fact. I do not doubt that Mr Pham has, and or does, continue to suffer injury. I am not satisfied however that any injury suffered by Mr Pham arose out of or in the course of his employment and I am certainly not satisfied that any injury was the result of a material contribution by employment.
Additionally, and by way of conclusion, even if there was evidence associating employment with injury, there was no evidence at all of any incapacity by Mr Pham giving rise to an entitlement of weekly compensation. Indeed, Mr Pham's own evidence was that he occupied most of the period between 1998 and 2000 with his HREOC appeal, which would indicate a capacity to undertake employment. Additionally, he referred to his attendance with an employment agency of Centrelink where he apparently indicated a preparedness to be engaged as a computer web page designer, but declined employment because of advice of his doctor. Mr Pham unfortunately sought to evade questions upon this issue and would not respond to questions as to whether he believed he had a capacity for employment at that time, preferring to answer that his capacity for employment was a matter for determination by his doctors. Additionally, his commencement of a PhD and current undertaking of a Diploma in Education is inconsistent with incapacity.
In all of the circumstances, I am satisfied that the decision under review should be affirmed.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member
Signed:         Katherine Navarro.........................................
  Associate
Date/s of Hearing  17 and 18 September 2002
Date of Decision  10 October 2002
Counsel for the Applicant        Self represented
Solicitor for the Applicant         Nil
Counsel for the Respondent    Mr J Lenczner
Solicitor for the Respondent    Blake Dawson Waldron