Re Albanese and Comcare

[2004] AATA 768

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 768

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/375

GENERAL ADMINISTRATIVE DIVISION		)
Re		CESARE ALBANESE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date21 July 2004

PlaceAdelaide

Decision

The Tribunal:

(a)      sets aside the decision under review, and in substitution for that decision decides that the respondent is liable to pay compensation in respect of the applicant’s psychological disorder;

(b)      reserves liberty to apply within 14 days in relation to the costs of the proceedings; and

(c)       orders that in the absence of any such application the respondent pay the costs of the proceedings.

(D.G. Jarvis)
  (Signed)
  Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – adjustment disorder with mixed emotions – Customs officer denied access to database because of security query – perception of victimization – psychological disorder not result of failure to obtain transfer or benefit in connection with employment – decision set aside.

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4 and s 14

Comcare v Mooi (1996) 69 FCR 439

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Suters v Australian Postal Corporation (1992) 28 ALD 320

Wiegand v Comcare (2002) 72 ALD 795

Re Davill and Australian Postal Corporation (AATA 10629, 22 December 1995)

Comcare v Ross [1996] 680 FCA 1

Trewin v Comcare (1998) 84 FCR 171

Re Liu and Comcare [2004] AATA 617

Lees v Comcare (1999) 56 ALD 84

REASONS FOR DECISION

21 July 2004   Deputy President D G Jarvis

Introduction

1.      The applicant, Cesare Albanese, claimed compensation on 21 February 2002 for anxiety with reactive depression, and alleged that this condition developed as the result of events at a meeting with management of his employer, the Australian Customs Service (“ACS”).  In his claim for compensation, the applicant asserted that this meeting took place on 28 October 2001, but later corrected this to 1 November 2001.  I will refer in detail to the events of this meeting later in these reasons.  The respondent rejected the applicant’s claim on 23 May 2002.  That rejection was affirmed in a reviewable decision made on 11 October 2002.  The applicant has applied to this Tribunal for review of that reviewable decision.

2. The applicant was represented by Ms Lorraine Walker of counsel, and the respondent was represented by Mr Simon Stretton of counsel. The applicant gave evidence and also called his family doctor, Dr Pasquale Cocchiaro; a psychiatrist, Dr John Schembri, who gave evidence by telephone; and two management personnel then with ACS in South Australia, namely Mr Richard Janeczko and Ms Virginia Lynch. The respondent called a psychiatrist, Dr David Kutlaca and a former employee of ACS, namely Mr William Hogan (who gave evidence by video and by telephone respectively). The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) were admitted in evidence, and the parties tendered a number of other documents.  Counsel provided their final submissions in writing.  The respondent’s submissions were…