Regan and Comcare - [2001] AATA 625

DECISION AND REASONS FOR DECISION [2001] AATA 625

ADMINISTRATIVE APPEALS TRIBUNAL )

) N1999/1540

GENERAL ADMINISTRATIVE DIVISION    )         N2000/1181
        Re      EDWARD JOHN REGAN
  Applicant
          And     COMCARE
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Dr M E C Thorpe Member

Date28 June 2001
PlaceSydney

Decision       N1999/1540: The Administrative Appeals Tribunal affirms the decision of the Independent Review Officer of the Canberra Claims Management Centre - Comcare, the Respondent in these proceedings, dated 24 August 1999, which affirmed the decision of Comcare dated 2 December 1998 to disallow compensation to the Applicant, Mr Edward Regan, for anxiety state. N2000/1181: The Administrative Appeals Tribunal affirms the decision of the Independent Review Officer of the Canberra Claims Management Centre - Comcare dated 30 June 2000, which affirmed the decision of Comcare dated 7 March 2000 to disallow the Applicant's claim for permanent impairment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988.   Costs: No costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.
  ..............................................
  Ms G Ettinger – Senior Member
CATCHWORDS
Compensation - whether injury/disease - whether incapacity for work - whether permanent impairment - whether reasonable disciplinary action – decisions affirmed

LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 24 and 27
Comcare Guide to the Assessment of the Degree of Permanent Impairment
CASE LAW
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Battye v Comcare [2000] AATA 18
Comcare v Mooi (1996) 137 ALR 690
Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Commonwealth Banking Corporation v O'Neill (1988) 9 AAR 170
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Fitzpatrick v Comcare (AAT 13178, 14 August 1998)
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Moneeb v Comcare (AAT 7960, 15 May 1992)
O'Donohue v Comcare [2000] AATA 664
Regan v Australian Protective Service and Disciplinary Appeals Committee [1998] 1002 FCA (13 August 1998)
Repatriation Commission v Webb (1987) 76 ALR 131
Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Secretary Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Van Houten v Comcare (AAT 12339, 24 October 1997)
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Wierzbicki v Comcare [1999] AATA 123
Wilden v Comcare (AAT 12812, 21 April 1998)

REASONS FOR DECISION

28 June 2001 Ms G Ettinger Senior Member Dr M E C Thorpe Member

The decisions under review before the Administrative Appeals Tribunal ("the Tribunal") were as follows:
· N1999/1540: The decision of the Independent Review Officer of the Canberra Claims Management Centre - Comcare ("Comcare"), the Respondent in these proceedings, dated 24 August 1999 (T51) which affirmed the decision of Comcare dated 2 December 1998 (T33) to disallow compensation for anxiety state to the Applicant, Mr Edward Regan.
· File N2000/1181: The decision of the Independent Review Officer of the Canberra Claims Management Centre - Comcare dated 30 June 2000 (T36), which affirmed the decision of Comcare dated 7 March 2000 (T31) to disallow the Applicant's claim for permanent impairment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988.
The hearing took place over three consecutive days initially followed by a further day to hear the evidence of four additional witnesses before the matter was adjourned to enable the parties to prepare written closing submissions. There had been several interlocutory hearings where the summons to produce documents were discussed at length and in great detail. A large number of documents were ultimately accepted into evidence and are Exhibits before the Tribunal.
The Applicant, Mr Edward Regan, was represented by his brother Mr James Regan, (a non-lawyer), and the Respondent Comcare, by Ms Lorraine Gabriel of counsel, instructed by Phillips Fox Solicitors.
ISSUES BEFORE THE TRIBUNAL
The Tribunal had to decide whether:
·Mr Edward Regan was entitled to compensation for anxiety state pursuant to section 4(1) of the Safety Rehabilitation and Compensation Act 1988, noting that the date of his application at T25 (N1999/1540) was 23 October 1998.
In reaching its decision as to the issue raised above, the Tribunal had to consider:
·     Whether Mr Edward Regan suffered a compensable injury or a disease pursuant to section 4(1) of the Safety Rehabilitation and Compensation Act 1988;
·     If he suffered a disease, whether Mr Edward Regan's employment materially contributed to his condition;
·     If he suffered a disease, whether Mr Edward Regan's condition occurred as a result of reasonable disciplinary action as contemplated by section 4 of the Safety Rehabilitation and Compensation Act 1988;
Whether Mr Edward Regan was entitled to be paid compensation pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 for permanent impairment.
LEGISLATIVE FRAMEWORK
The relevant legislation is the Safety Rehabilitation and Compensation Act 1988, ("the Act") in particular sections 4, 14, 19, 24 and 27.
Section 4 of the Act defines "disease" and "injury" and follows as relevant:
"4. (1) In this Act, unless the contrary intention appears:
...
"disease" means:
  (a)       any ailment suffered by an employee; or
  (b)       the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
...
"injury" means:
(a)      a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
..."

Section 14(1) of the Act provides that:
"14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

Sections 24 and 27 of the Act deal with permanent impairment and follow as relevant:
"24 Compensation for injuries resulting in permanent impairment
24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
24(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
24(3)Subject to this section, the amount of compensation payable to the employee is such an amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
24(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
24(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
24(6)The degree of permanent impairment shall be expressed as a percentage.
24(7)Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
….
27 Compensation for non-economic loss
27(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
…"
The Tribunal was mindful that permanent impairment is assessed pursuant to the Comcare Guide for the Assessment of the Degree of Permanent Impairment("Comcare Guide").

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ('the AAT Act"), being two sets of documents ("the T-Documents"), in matters N1999/1540 and N2000/1181.
The following Exhibits were admitted into evidence:
ITEM    DATE   NAME
Affidavit of James Charles Regan        1 December 2000       Exhibit A1
Affidavit of Edward John Regan Affidavit of Edward John Regan 23 November 2000 20 February 2001     Exhibit A2
Statement of Edward Regan re PS02 Hendricks – Fishing        24 December 1994      Exhibit A3
Affidavit of Alexander Kirkpatrick Beggs 1 November 2000       Exhibit A4
Statutory Declaration of Alexander Kirkpatrick Beggs    28 December 1994      Exhibit A5
Affidavit of Troy Graham Stolz    19 November 2000      Exhibit A6
WorkCover Authority Medical Certificate - E Regan       24 November 1994      Exhibit A7
Letter from K Baker to E Regan 17 January 1995         Exhibit A8
Medical Certificate, Dr A White – E Regan Clinical Notes of Dr A White    17 November 1994      Exhibit A9
Compensation Claim – E Regan 17 November 1994      Exhibit A10
Accident/Occurrence Report Form       18 November 1994      Exhibit A11
Notice of Accident – E Regan     18 November 1994      Exhibit A12
WorkCover Authority Medical Certificate - E Regan       9 December 1994       Exhibit A13
Letter from Comcare to E Regan         22 December 1994      Exhibit A14
Notice from APS to All Staff re Investigations into Formal Complaint Against PSA1 Lee Hemmings         25 January 1995    Exhibit A15
Letter from K Baker to D Crotty re Investigation of Complaint Against OIC (first two paragraphs deleted)    28 February 1995     Exhibit A16
Notice of Direction Under Subsection 62(6) of Public Service Act 1922 re M Hendricks 8 June 1995 Exhibit A17
APS Bulletin "Update"    4 August 1995   Exhibit A18
Letter from E Regan to D Crotty 15 February 1996       Exhibit A19
Letter from E Regan to D Crotty re Expression of Interest; Transfer from OE to Villawood 25 March 1996 Exhibit A20
Letter from K Baker to R van den Tol    11 November 1996      Exhibit A21
Letter from S Allen to J Anderson re Misconduct Charges        27 November 1996      Exhibit A22
Letter from E Regan to K Baker          19 December 1996      Exhibit A23
Affidavit of Kevin Bernard Roustan       10 November 2000      Exhibit A24
Affidavit of Edward Nolan Sutherland    12 November 2000      Exhibit A25
Affidavit of Geoffrey McCarthy   11 November 2000      Exhibit A26
Letter from K Baker to E Regan 7 January 1997 Exhibit A27
Email from K Baker to Howard re Ted Regan    10 January 1997         Exhibit A28
Letter from E Regan to T Robertson     27 February 1997       Exhibit A29
Letter from S Wenger to E Regan re Request for Copies of Documents Under FOI         April 1997       Exhibit A30
Letter from S Wenger to E Regan (and Attachments) re Request for Copies of Documents Under FOI     24 June 1997         Exhibit A31
Letter from A Porter to E Regan re Charge of Misconduct        19 March 1997 Exhibit A32
Letter from A Porter to E Regan re Notice of Inquiry Under Section 62 Public Service Act 1922    19 March 1997         Exhibit A33
Letters from R van den Tol to E Regan and in Reply      11 April 1997 – 1 July 1997      Exhibit A34
APS Bulletin "Update"    16 May 1997     Exhibit A35
Letter from E Regan to A Porter re Response by E Regan to Charges of Misconduct      21 May 1997     Exhibit A36
Result of Inquiry – Charges of Misconduct E Regan and D Hogan         28 May 1997     Exhibit A37
Correspondence from MPRA to E Regan         June – July 1997        Exhibit A38
Letter from E Regan to R Bowerman re Altercation with Three Somalians (and Attachments)       25 August 1997         Exhibit A39
Affidavit of James Sexton       11 November 2000      Exhibit A40
Letter from S Allen to Stress Claims Management Centre – Comcare     3 October 1997 Exhibit A41
Letter from C Jessop to Remington & Co re E Regan     30 January 1998         Exhibit A42
Letter from H Bull to E Regan re Claim   30 March 1998 Exhibit A43
Letter from D Crotty to E Regan re Saluting Prime Minister (and Attachments)    April 1998       Exhibit A44
Outline of Submissions for the Applicant for the Federal Court     Undated         Exhibit A45
Letter from J Regan to APS re E Regan Case for Workers Compensation and Work Place Harrassment (and Attachments)     17 November 1998      Exhibit A46
Letter from Comcare Claims Management Centre to APS         18 November 1998      Exhibit A47
Letter from Health Services Australia to APS    17 December 1998      Exhibit A48
Submission from J Regan to Minister for Justice and Customs re a Case Involving his Brother E Regan – APS    12 January 1999    Exhibit A49
Email from P Longley to M Butt 19 January 1999         Exhibit A50
Submissions from J Regan to Minister for Justice and Customs re E Regan – Alleged Bias and Conflict of Interest by APS Staff (and Attachments)    12 January 1999         Exhibit A51
Letter from APS to E Regan re Health Assessment – Fitness for Continued Duty 23 February 1999       Exhibit A52
Submissions from J Regan to Minister for Justice and Customs re Correspondence Concerning Disciplinary Action and Alleged Work Place Harrassment – E Regan (and Attachments) 18 March 1999 Exhibit A53
Submissions from J Lloyd MP re Correspondence from J Regan Concerning E Regan (and Attachments) 12 January 1999     Exhibit A54
Medical Report of Dr H Smyth 9 November 2000       Exhibit A55
Letter from Health Services Australia to APS    14 May 1999     Exhibit A56
Letter from E Regan to APS     31 May 1999     Exhibit A57
Letter from M Studdert to J Regan       12 August 1999 Exhibit A58
Email from M Butt to J Kenafacke re E Regan Email from M Butt to D Crotty re E Regan   26 August 1999 8 September 1999     Exhibit A59
Letter from J Regan to Comcare 15 February 2000       Exhibit A60
Affidavit of Raymond Stephen Rigger     21 November 2000      Exhibit A61
Affidavit of Robert Albert Newcombe    10 November 2000      Exhibit A62
Affidavit of Thomas Liam Harnett         10 November 2000      Exhibit A63
Letter from Phillips Fox to Messrs Regan         12 January 2001         Exhibit A64
Affidavit of Edward John Regan (and Attachments)       28 March 2001 Exhibit A65
Letter from E Regan to D Crotty re Complaint – PSO2 J Hendricks        26 January 1995         Exhibit A66
Letter from Comcare to J Regan (and Attachments)      13 January 1999         Exhibit A67
T-Documents N1999/1540                 Exhibit R1
T-Documents N2000/1181                 Exhibit R2
Clinical Notes of Dr G McCarthy          Exhibit R3
Medical Report of Dr D Lovell     30 April 1999     Exhibit R4
Medical Report of Dr D Lovell     27 November 2000      Exhibit R5
Medical Report of Dr D Lovell     13 February 2001       Exhibit R6
Medical Report of Dr K Dyball    2 May 2000     Exhibit R7
Medical Report of Dr K Dyball    28 November 2000      Exhibit R8
Medical Report of Dr K Dyball    12 February 2001       Exhibit R9
Clinical Notes Bankstown/Lidcombe Heath Service               Exhibit R10
Statement of Mark Hendricks     30 March 2001 Exhibit R11
Statement of Donald Allan Crotty (and Attachment)       Undated         Exhibit R12
Statement of Rene van den Tol (and Attachments)       30 March 2001 Exhibit R13
Statement of Alan Keith Porter (and Attachments)        29 March 2001 Exhibit R14
Copy of Australian Protective Service General Orders 16 March 1995 Exhibit R15
Personnel Management Manual May 1987       Exhibit R16
APS Operations Guidelines               Exhibit R17

Oral evidence was given (in order of appearance), by Mr James Regan, Mr Edward Regan, Mr Alexander Beggs, Mr Troy Stolz, Mr Kevin Roustan, Mr Edward Sutherland, Dr Geoffrey McCarthy, Mr James Sexton, Dr Miltiadis Roxanas, Dr Howard Smyth, Dr Eric Lovell, Dr Kenneth Dyball, Mr Mark Hendricks, Mr Donald Crotty, Mr Rene van den Tol and Mr Allan Porter.
The Tribunal was mindful that it had before it a large amount of both written and oral material, including the reports of the Disciplinary Appeals Committee ("DAC") and the decision of Lindgren J of the Federal Court in Regan v Australian Protective Service and Disciplinary Appeals Committee [1998] 1002 FCA (13 August 1998). Although the Tribunal has fully reviewed all the material including the large number of Exhibits, only those parts of the material directly relevant to describe the Tribunal's decision making process, standing in the shoes of Comcare, will be referred to in these reasons for decision. The Tribunal acknowledges that Mr James Regan has spent a considerable amount of time and effort preparing documents on behalf of the Applicant, and although all of it may be relevant to how Mr Edward Regan feels about his situation, it may not be material to the decision making process. The issues to be decided are clearly set out under the heading "Issues Before the Tribunal" above.
EVIDENCE OF MR JAMES CHARLES REGAN – MR EWARD REGAN'S BROTHER AND REPRESENTATIVE
The Tribunal decided that because Mr James Regan was representing his brother, the Applicant, at the Hearing, and because he expressed a wish to give evidence, that his evidence should be taken first, and in the absence of Mr Edward Regan. Mr James Regan's statement of 1 December 2000 was before the Tribunal as Exhibit A1. The Tribunal noted that Mr James Regan had prepared much of the material which was before it, and had appeared on his brother's behalf at the numerous interlocutory hearings at the Tribunal prior to the final Hearing of this matter.
Mr James Regan, a Senior Constable with the Transit Police Branch of the New South Wales Police Service, began his evidence by saying that "the Applicant's injury is a result of a cumulative train of harrassment and dysfunctional management of which the unreasonable disciplinary action was part." He also spoke of the Inquiry into the escape of an unlawful non-citizen in which Mr Edward Regan had been involved (6 November 1996), and which was much of the focus of this matter. He said that he and his brother felt distrust of the Investigation Officer (Mr K Baker), and the Inquiry Officer (Mr A Porter), appointed to inquire into the escape in which Mr Edward Regan had been involved. He said that it had been very difficult for their family because Mr Edward Regan was "virtually stuck at home, goes out very little, and has shown very few constructive pursuits and that sort of thing in the last few years."

A substantial portion of Mr James Regan's affidavit at Exhibit A1, detailed his involvement prior to and during the Disciplinary Appeals Committee ("DAC") hearing. The Tribunal noted his involvement, and accepted the decision which was before it, but finds that what occurred at the DAC and Federal Court are not of direct relevance to its present decision making.
Important to the Tribunal's understanding of the matter before it however, were statements such as that at paragraph 30 of Mr James Regan's statement: "Edward was distressed and shocked following the handing down of Justice Lindgren's decision" and at paragraph 35:
"Ted's downhill slide since 1994, has been in a steep spiral since the Federal Court hearing bottoming in the pits of depression and a resignation that he may never achieve justice and clear his name as he had hoped to before the Disciplinary Appeals Committee and the Federal Court."

EVIDENCE OF MR EDWARD JOHN REGAN - THE APPLICANT

Mr Edward Regan whose affidavits of 23 November 2000 (Document 187) and 20 February 2001 (Document 199) were before the Tribunal as Exhibit A2, gave oral evidence. A further affidavit of Mr Edward Regan dated 28 March 2001 was before the Tribunal as Exhibit A65. By way of background, the Tribunal noted that Mr Edward Regan had left an antique furniture business to join State Rail Transport Investigations Branch in 1985. He said that after a year and a half he had found there was a corrupt element in that group, and moved to the trades and catering sections, travelling throughout New South Wales on trains, serving food and beverages. He said that he then joined the Australian Protective Service ("APS") in 1990.
Mr Regan, of his duties at the APS, said:
"It was a gardening function, I had to do regular foot patrols around the area, and attend to alarms if they went off, if there were intruders, cats, possums, whatever and had to salute various dignitaries there, Prime Minister, Governor General, visiting Heads of State from overseas, and protect them and their families, and liaise with police and other bodies."
Mr Regan then told the Tribunal about the difficulties at Kirribilli House where he had been stationed. He said that in mid 1994 a female Officer-in-Charge ("OIC") took over and that after she became involved on a personal level with another female officer, he felt it affected her thinking and decision making. Mr Regan said that initially his relationship with her was cordial, but later he was, he thought, unfairly designated for transfer.
Mr Regan said that he had worked with many female supervisors and persons of different sexual orientations in State Rail and that he had always had good relationships everywhere until the situation in mid 1994.
Mr Regan said that the decision to transfer him had been made immediately prior to his absence on an overseas trip in October 1994, and that he had not received any notification or telephone call about the transfer, as alleged by Mr Baker. Mr Regan expressed distrust of Mr Baker. He said that on his return on 6 November 1994, he had a telephone call from Ms Joy Tinsey, an officer and partner of Ms Hemmings to say he had been transferred. Mr Regan said he was successful in having that transfer reversed through the assistance of a barrister.
Mr Regan said that he suffered an anxiety state as a result, and was off work until 16 December 1994. Mr Regan said although he made a claim for compensation in respect of the events surrounding his unsuccessful transfer, that claim was rejected. He said he did not follow it up because he was pleased to be remaining at Kirribilli House. He said that his colleagues at the PSO1 level were very happy to see him stay, but PSO2 Hendricks with whom he had previously had a good relationship, was not. The Applicant said that he heard from others that Mr Hendricks was making disparaging remarks behind his back. Document 10 dated 24 December 1994 admitted as Exhibit A3 was a statement of Mr Regan regarding what he felt about Mr Hendricks.
In his affidavit dated 20 February 2001, Mr Edward Regan stated:
"Crotty made a number of ignorant and derogatory remarks directed at me from the time of his arrival as acting station commander in early 1995 until my transfer from Official Establishments (OE) to the Villawood Immigration Detention Centre (VIDC) in April 1996 …"
Mr Regan told the Tribunal that he commenced working at Villawood Immigration Detention Centre ("Villawood") on 1 April 1996. He said that the duties were:
"… welfare, it was a caretaking role. Our duty of care was to look after the needs of the detainees, and tend to their needs, protect them and also mainly look after their welfare."
He said in reply to cross-examination that he made a further claim for compensation in 1997, in connection with an incident on 29 August 1997 when he collapsed while working at Villawood. Liability had been accepted until 31 January 1998. Mr Regan told the Tribunal that he did not return to Villawood after that because the APS contract with the Department of Immigration and Multicultural Affairs ("DIMA") had been terminated on 15 November 1997. Ms Gabriel cross-examined Mr Regan re his collapse and concerns he may have had regarding loss of his position due to the downsizing or privatisation of the detention centres. Mr Regan denied having concerns or telling Dr White of these. The Tribunal noted from Dr White's clinical notes of 6 September 1997 where he had recorded: "Stress/Anxiety … Also may have job terminated as work gone to private company." He subsequently, after further questioning said that: "I was quite stressed, I just had a collapse, I was not quite myself, I may well have mentioned it …"Mr Regan told the Tribunal that he was having trouble sleeping in August 1997, and had been prescribed medication by Dr McCarthy, general practitioner, who had also referred him to a psychologist.
Mr Regan also told the Tribunal that he had last worked with the APS on 14 August 1998. He said that it was an accumulation of problems which had led to his leaving work and non-return. He said:
"There were several incidences (sic) at Kirribilli House which I've mentioned in my affidavits and an incident with a demonstration, Tibetan people at the Kirribilli House Gate, and an emotional time one night with several officers. … I was attacked by Mr Jim Hendricks on an alleged salute. He said that he had witness to the fact that I'd saluted incorrectly, which I hadn't done and he never produced the witness and never could, there was no such person, it was maliciousness on his part."
Ms Gabriel asked Mr Regan:
Ms Gabriel: "Mr Regan on that particular occasion you had just found out that you had been unsuccessful at the Federal Court in challenging a number of charges which had been laid against you, hadn't you?"
Mr Regan: "Yes, at that time, yes."
…
Ms Gabriel: "… despite all of the other concerns you had in your employment which people do on occasions, it was finding out that you had been unsuccessful at the Federal Court which led you to being unable to return to work wasn't it?"
Mr Regan: "Well, indeed, it was a culmination of everything. That more or less was the extra straw that broke the camel's back so to speak."
The Tribunal noted that the Federal Court decision was handed down on 13 August 1998 (T21A). Mr Regan had appealed to the Federal Court on the basis of bias and breach of natural justice, after the decision of the DAC. In his affidavit dated 23 November 2000 (Exhibit A2) Mr Regan stated:
"On 13 August 1998, Justice Lindgren handed down his decision in the Federal Court and found that neither ground of my substantially proved Application for an Order of Review was made out. The Appeal was dismissed. I was distressed that he ruled that my brother could have raised the distinction between persons in 'administrative custody' and those to be deported (this distinction was drawn to my attention by Counsel, Steve Cairns, and would certainly have been raised before the DAC had I been properly prepared and legally represented). I was devastated … "

The Tribunal noted that Mr Regan had spent approximately two months at Port Hedland Immigration, Reception and Processing Centre ("Port Hedland"), from 19 December 1996 before being transferred back to Villawood in early 1997.
Ms Gabriel asked Mr Regan whether his difficulties arose after he had been charged in February 1997. Mr Regan said that his difficulties did not arise after being charged, but many years before due to the dysfunctional management and dated to mid or late 1994.
In re-examination, Mr Regan recounted a number of incidents which had upset him during his time at Villawood, including detainees rioting, and a medical problem of a detainee he felt had not had prompt attention.
Mr Regan also recounted how he felt after the escape of the detainee on 6 November 1996. He said that the other officer, Mr Hogan, was counselled but that he (Mr Regan) had to suffer being ridiculed by his colleagues. Mr Regan said that Mr Kimberley Michael Baker had conducted an Inquiry, and ultimately he had been charged, although he understood no one had ever been charged before over an escape, and that included Commonwealth and Federal Police. He said he felt it was recriminatory action by Mr Baker which dated back to the 1994 transfer which Mr Regan avoided during the time Mr Baker was Regional Commander.
The Tribunal noted that liability for compensation was accepted by the Respondent in 1997 while the Applicant was at Villawood (ceasing on 31 January 1998), and that following his return to work on 1 February 1998, he was transferred to Kirribilli House.
Mr Regan told the Tribunal that with regard to the escape, Mr Baker had been the Investigating Officer and Mr Porter the Inquiry Officer. He had been charged with four charges, which were proven by way of an internal decision making process. Mr Regan said that he then sought a review by the DAC where three of the charges were upheld, and one dismissed, with the effect that his penalty was reduced.
The Tribunal noted that there was no evidence given by the Applicant about any injury, rather both the oral evidence and much of the material in the Exhibits indicated Mr Regan's anger at the management of the APS and the way it was run. Particular persons against whom he had concerns and mistrust were Mr K Baker, Mr A Porter, Mr R van den Tol, Mr M Hendricks, and Mr D Crotty.
The evidence which follows is firstly that of the lay witnesses, mainly persons who had previously worked with Mr Regan, some of whom are still in the employ of the Commonwealth, and then the evidence of the Respondent's witnesses Messrs Crotty, van den Tol and Porter. The medical evidence then follows.
EVIDENCE OF MR ALEXANDER KIRKPATRICK BEGGS
Mr Beggs, whose affidavit dated 21 November 2000 was before the Tribunal as Exhibit A4, and statutory declaration dated 28 December 1994 as Exhibit A5, gave oral evidence. Mr Beggs was employed by the APS from 1990 until 1998. He said he had known the Applicant for approximately 11 years, and used to live near him. He said, after working together for some time, they became friends and fished together and had similar interests.
Mr Beggs said that when he first knew Mr Regan, the Applicant was "happy go lucky joking a lot, he used to always set me up in clubs and all that. Just go off and say funny things. …" He said that over the past few years, Mr Regan had become very moody and short tempered, and the contact between them went from seeing each other every day and going out socially in the evening to once or twice a month. He said that Mr Regan had remained distant and moody since that time. Referring to his comments in Exhibit A5, Mr Beggs said that "the best way to describe him would be that he is just a shell of what he used to be."
Mr Beggs also said Mr Regan was fine until the matter of the transfer (from Kirribilli House), arose. Mr Beggs told the Tribunal he was a member of the committee (as deputy union delegate of the Commonwealth Public Sector Union ("CPSU")), which had to determine who would have to be transferred. Although the committee could not reach agreement about the criteria to be used when deciding transfers, Mr Beggs said that Mr Regan was targeted for transfer some weeks after the committee met, without further consultation with the committee. Mr Beggs said that favouritism had been exercised to Mr Regan's disadvantage. Mr Beggs said that his view had been that the longest serving officers should have been designated for transfer first.
Mr Beggs said that he had observed Mr Hendricks talking about Mr Regan behind his back and told him about it. He said: "It is mainly they were making defamatory remarks about him swearing and carrying on."
In cross-examination Mr Beggs told the Tribunal that he left the APS on 28 May 1998. He said that there was inequity with regard to officers selected to attend courses, and those promoted. Ms Gabriel asked him:
Ms Gabriel: "Were you taken to task whilst you were with the APS regarding excessive sick leave without certification?"
Mr Beggs: "Yes I was, yes.'
Ms Gabriel: "Were you referred to a medical officer in respect of that on one occasion?"
Mr Beggs: "Yes I was."
Ms Gabriel: "You attended the medical appointment?"
Mr Beggs: The first one, yes."
Ms Gabriel: "You were referred for a second occasion to the CMO in respect of the same problem were you not?"
Mr Beggs: "Yes."
Ms Gabriel: "Was it prior to that medical appointment you tendered your resignation?"
Mr Beggs: "Yes it was."
Mr Regan asked Mr Beggs: "What would you have said of the morale generally in the workplace and in the Australian Protective Services generally at the time of your resignation?" Mr Beggs answered: "Everybody was just fed up. They were counting down until redundancies were supposed to be offered."
EVIDENCE OF MR TROY GRAHAM STOLZ
Mr Stolz, whose affidavit of 19 November 2000 was Exhibit A6 before the Tribunal, gave oral evidence. He was employed by the APS from 1989 to early 2000. Mr Stolz said that he first met the Applicant in Port Hedland during the period December 1996 to February 1997, and that he found him mingling, and fitting in with everyone in spite of the tension levels of the place and the language problems of the detainees. He said that he next met Mr Regan at Kirribilli House, in early February 1998, some twelve months later, and found him depressed and bitter. Ms Gabriel asked Mr Stolz:
Ms Gabriel: "You also indicated that during the time you knew Mr Regan at Kirribilli House he was always preoccupied with past dealings with management?" …
Mr Stolz: "Yes that's correct."
Ms Gabriel: "Was there anything particular that he was preoccupied with, to your knowledge?"
Mr Stolz: "Just that it was known what happened. He was the only person ever charged in the history of the job with having a non-citizen escape from custody … yes if Mr Baker didn't like you or you crossed him, you would wear the consequences."
Mr Stolz told the Tribunal in reply to a question in cross-examination that he was charged in 1999 after an incident at Kirribilli House where an audit was carried out and he was dismissed. Ms Gabriel asked:
Ms Gabriel: "You were actually found by somebody in a state of undress, without your weapon and with bedding pushed underneath your chair, on the occasion of the audit?"
Mr Stolz: "That's correct."
Ms Gabriel: "OK, and the dismissal was upheld by the Industrial Relations Commission?"
Mr Stolz: "That's correct"

EVIDENCE OF MR KEVIN BERNARD ROUSTAN

Mr Roustan, whose affidavit of 10 November 2000 with an annexure was before the Tribunal as Exhibit A24, gave oral evidence. He said he had worked first as a Federal police officer (from 1982) and transferred to the APS when it was established in October 1984. The Tribunal noted that he left the service on 24 November 1997 by way of voluntary redundancy.
Mr Roustan said that he had met the Applicant casually at "OE" (Official Establishments) and found him a "happy-go-lucky fellow, having a joke, and a laugh and easy to get on with." They later met again when both were working at Villawood. Mr Roustan said that Mr Regan was the only person he had heard of being charged over the escape of a detainee. He himself had been involved in an escape he said, where no disciplinary action had been taken as a result.
Mr Roustan told the Tribunal about his duties as a switchboard operator, taking calls from relatives of detainees, legal representatives, non-English speakers, and dealing with visitors. He said it was a difficult job but that Mr Regan who had similar duties, carried them out well although he had been somewhat unhappy with the transfer [to Villawood]. Mr Roustan said that after the escape, the Applicant "collapsed and he just got worse." He became more withdrawn and "wasn't himself".
Ms Gabriel drew to the attention of the Tribunal through questioning of Mr Roustan, certain incidents with regard to a compensable injury and shift work. The Tribunal noted Mr Roustan had been investigated and ultimately left the service on a voluntary redundancy in 1997.
EVIDENCE OF MR EDWARD NOLAN SUTHERLAND
Mr Sutherland, whose affidavit of 12 November 2000 was before the Tribunal as Exhibit A25, gave oral evidence before the Tribunal. Mr Sutherland said that when he joined the APS in 1990, he underwent induction and training at the same time as Mr Regan, and that they then worked together in the same environment (Kirribilli House, and Port Hedland) for quite some time, as well as socialising a little. As both lived on the Central Coast, they also shared transport on occasion. He said he had known the Applicant for some 11 years. Mr Sutherland said that he had found Mr Regan a little more light hearted than he himself was, explained the Applicant's enthusiasm for his job, looking to it as a career, and how Mr Regan also knew the meaning of having fun. He said that Mr Regan underwent a personality change after a number of incidents, a transfer incident with regard to Kirribilli House (1994), difficulties with Mr Hendricks his supervisor, and an incident with regard to saluting incorrectly, amongst others. Mr Sutherland said that after the transfer incident Mr Regan was suspicious of the management and their motives, and seemed less content in the job.
Mr Sutherland described an incident which occurred when an officer "jokingly" accused Mr Regan of having a girlfriend aged 13 years. Mr Sutherland said that Mr Regan reacted strongly to the accusation which had been made jokingly and because he was under pressure, he "felt like this was yet another attempt by somebody in authority to shake him up."
Mr Sutherland also said that the case of Mr Regan was the only one where a person had been charged and lost increments of pay over an escape. He admitted in reply to questioning that he never worked at Villawood and knew little of the detail regarding the matter.
EVIDENCE OF MR JAMES ANDREW SEXTON
Mr Sexton, whose affidavit dated 11 November 2000 was before the Tribunal as Exhibit A40, gave oral evidence. He said that he had first met Mr Regan at Kirribilli House in 1991. They had then not seen each other until meeting again at Villawood in 1997 (a gap of six years). Mr Sexton said he had found Mr Regan jovial and competent in his job when he first met him. By 1997 he had not recognised him because the Applicant had aged 20 years, and "was just a shell of his former self." Mr Sexton said that by 1997 Mr Regan no longer joked, and seemed vague and a totally different person.
Mr Sexton recalled Mr Regan had a conflict with Mr Hendricks although Mr Sexton blamed Mr Hendricks, whom he said "would pick on the weak, he never picked on the strong." He gave evidence of Mr Hendricks reprimanding Mr Regan regarding an allegedly incorrect salute to the Prime Minister. Mr Sexton also recalled that Mr Regan had "confrontations" with OIC Mr Don Crotty (Kirribilli House). Mr Sexton agreed in cross-examination that he too had had conflicts with Mr Hendricks but that "I was prepared to stand up for myself and he didn't push the issue any further."

Mr Sexton also told the Tribunal that Mr Regan and his colleague Mr Hogan (escort commander) were the only people who had ever been charged over an escape. Mr Sexton said he had himself been involved in escorts for Villawood and in escapes. He told the Tribunal about an escape of four out of nine detainees on the way to a court hearing in 1989 where an incident report had been made out, but no further investigation or action was taken. For the sake of completeness, the Tribunal noted that a difference between the two was that Mr Sexton had at the time not yet undergone induction training, whereas at the time of the escape in which Mr Regan was involved he had already undergone training.
Mr Sexton agreed in cross-examination that he had been charged with failing to fulfil his duties and that there were five charges pending. He agreed in cross-examination that he had been dismissed as a result.
EVIDENCE OF OTHER LAY WITNESSES
The Tribunal also had before it affidavits of Raymond Stephen Rigger dated 21 November 2000 (Exhibit A61), Robert Albert Newcombe dated 10 November 2000 (Exhibit A62) and Thomas Liam Harnett 10 November 2000 (Exhibit A63) who did not give oral evidence. Essentially, these affidavits corroborated the evidence of the other lay witnesses. Mr Rigger stated that to the best of his knowledge in the history of the Commonwealth Police, the AFP and the APS that no officer had ever been charged or disciplined in relation to escapes until 1997 when charges were brought against Mr Regan. Mr Newcombe corroborated that evidence. Mr Harnett's affidavit accorded with that of other lay witnesses, who commented on the change in Mr Regan's mood.
EVIDENCE OF MR MARK GORDON CHARLES HENDRICKS
Mr Hendricks, whose statement of 30 March 2001 (Exhibit R11) was before the Tribunal, gave oral evidence. He said that he was presently a security officer and had worked with Mr Regan at the APS at Kirribilli House, which he joined on 5 November 1985.
Mr Hendricks recounted an incident in December 1994 where a police officer had been reported in a Sydney newspaper to be fishing off the wharf at Admiralty House. He said that it had not been a police officer, but he himself. He said that he had made a report to the Station Commander, Lee Wendy Hemmings about the matter. He said he had been charged with an offence, fined a day's pay and the official admonishment had remained on his record for a period of two years.
Mr Hendricks said that he had had a good working relationship with Ms Hemmings and had assisted her with her work as OIC. He said that he was not involved in the decision making process with regard to the issue of the intended transfer of Mr Regan from Kirribilli House.
When questioned about any altercation he may have had with the Applicant, Mr Hendricks said that there was an incident when the Prime Minister's driver reported that an APS officer had not saluted the Prime Minister correctly. He said that as a PSO2, he had checked the rosters and decided that the officer must have been Mr Regan, and informed him accordingly. Mr Regan asked Mr Hendricks whether he had then spoken to others and ridiculed Mr Regan in front of other officers with regard to the salute. Mr Hendricks denied this. He did however, explain that Mr Regan had not been taught the correct way of saluting, so he had demonstrated it to Mr Regan. Mr Regan's evidence was that he was away from work on that day and could not have been the offending officer.
Mr Regan asked Mr Hendricks whether he had been subject to disciplinary action in an incident at the Lithgow Small Arms Factory with regard to an assault. Mr Hendricks agreed.
EVIDENCE OF MR DONALD ALAN CROTTY
Mr Crotty, whose undated statement was before the Tribunal as Exhibit R12, gave oral evidence. He told the Tribunal that he is currently a (APS) Protective Service Inspector.
When asked by Mr James Regan whether he recalled a complaint by Mr Edward Regan about Mr Hendricks that was raised with him on his return from leave in January 1995, Mr Crotty said he did not remember it. Neither did he recall a document in 1996 from the Applicant with regard to the transfer situation from Kirribilli House, which Mr Edward Regan had described.
When questioned about whether there was a record in Mr Regan's personnel record about the saluting incident for which he had been reprimanded, Mr Crotty said that there was not. Mr Crotty said that he was able to reply so definitively because he had been in charge at the time, and he knew he had not caused a record to be made.
The Tribunal was not impressed with Mr Crotty's evidence as he appeared to have no recollection of many matters, yet did not hesitate to say with seeming certainty that Mr Regan's record had not been annotated with regard to the saluting incident.
The Tribunal noted that Mr Regan raised issues of credit regarding Mr Crotty in his written closing submissions. These were not raised in oral evidence before the Tribunal, have been noted, and will not be canvassed further here. The Tribunal reiterates that it did not find Mr Crotty's evidence of assistance in its deliberations and gave it little or no weight.
EVIDENCE OF MR RENE VAN DEN TOL
Mr van den Tol, whose statement dated 30 March 2001 was before the Tribunal as Exhibit R13, gave oral evidence and told the Tribunal that he was now part of the Senior Executive Service of the Australian Public Service in Canberra. He commenced employment with the APS in 1996.
Mr van den Tol agreed that he had been involved in having the escape of an unlawful non-citizen in the care of Mr Regan investigated. Mr van den Tol recounted his experiences with regard to escapes. He said that he could recall two incidents where detainees escaped from Villawood in 1997, and a further incident in the city in conjunction with a court appearance. He said that in one the officer involved had been found guilty of negligence (he could not recall the penalty), and in the other two out of Villawood, the security had been poor and no disciplinary action was taken. He recalled two other incidents where officers had been intoxicated while on duty and were charged and found guilty and penalties were imposed.
As to the escape of 6 November 1996 involving Mr Regan; Mr van den Tol referred the Tribunal to his statement which set out the circumstances. He agreed he had engaged Mr Porter to conduct the Inquiry.
When asked by Mr James Regan whether he had within days of the escape visited Villawood with Mr Baker, Mr van den Tol could not recall specifically. He said that he had had responsibility for five stations and did regular periodic visits to each.
As to how Mr Regan came to be charged; Mr van den Tol said that :
"I just can't see how I could have been any more independent and followed the Public Service Act as it was at the time, under the Public Service Act, I followed it exactly as we were supposed to follow it and we got advice from the Government Solicitor on the process along the way. …
I formed the opinion that there may have been a case to answer.
…
Having signed as the authorised officer, the charges are laid, it's then handed over to the inquiry officer who determines the outcome."

Mr Regan asked:
Mr Regan: "Looking at the train of conversation between yourself and the applicant would you think that an independent observer might make certain observations in relation to your management style?"
Mr van den Tol: "I think an independent observer would look at the case and say what process had to be followed, was it fair and equitable and if you look at the process that had to be followed, I followed it to the letter and the conclusion can be no other, well, due process was followed."

In reply to a question from the Tribunal regarding the differences in treatment of officers concerned between the various escapes, Mr Van den Tol compared the situation at a facility where there was a large compound with few officers on duty at a time, a situation where it was relatively easy for a detainee to scale a fence and escape, with the situation of Mr Regan in the doctor's surgery. In the surgery it had been Mr Regan alone guarding one unlawful non-citizen. He said that in the case of Mr Regan, the detainee had been permitted to attend the toilet twice unsupervised before he escaped through a back door while Mr Regan remained in the waiting room, having failed to check the security, and while he (Mr Regan) sat reading a book. He said that by the time of the request for a third visit to the toilet within a short time, Mr Regan should have been alerted to check for problems. He said that Mr Regan was only alerted after the doctor's secretary asked him about the detainee some 15 – 20 minutes after the escape, a totally different situation from escapes from a compound where the authorities were aware security was a problem. In any case, Mr van den Tol said, he had sought advice of the Australian Government Solicitor and it was on the basis of that advice that the charges against Mr Regan were framed. The Tribunal noted that Mr James Regan by further questioning of Mr van den Tol indicated to the Tribunal that he was wrong in his statement that Mr Edward Regan had been reading a book while guarding the detainee at the doctor's surgery.
The Tribunal noted further that Mr van den Tol maintained that the escape had occurred regardless of whether Mr Regan had been reading, talking or engaging in other activities; the fact remained he had not checked on security with respect to the back door, and the detainee had escaped after three visits to the toilet. The Tribunal did not find that this factual error in any way altered the situation with regard to the escape.
When questioned further by the Tribunal regarding the discretion to proceed with counselling or other measures, Mr van den Tol replied:
"… well on the basis we could go – go to counselling or we could go to – we go to warning. I considered in view of the incident itself and the nature of the incident and the severity that I would proceed to charges."

As to the exercise of the discretion, in relation to Villawood for example, Mr van den Tol added:
"I mean the – again, you look at the incident report and look at the … circumstances. You know someone again, on a windy night in August going over the wall at 2 o'clock in the morning where we have one internal guard on the – in the perimeter and one external. You look at the situation and say: well, yes, well you know, in that situation I really couldn't lay … lay charges …. All we could do is impress upon the Department of Immigration to up – upgrade the security system …"

EVIDENCE OF MR ALLAN KEITH PORTER

Mr Porter, whose statement dated 29 March 2001 and attachments was before the Tribunal as R14, gave oral evidence. He said that he was now retired but immediately before retirement had been a Superintendent with the APS, which he had joined in 1990.
Mr Porter had been the Inquiry Officer appointed after the investigation by Mr Baker into the escape on 6 November 1996 of a unlawful non-citizen in the care of Mr Regan had occurred. The Tribunal was mindful that the Inquiry was conducted pursuant to section 62 of the Public Service Act 1922.
When asked about his conduct of the Inquiry, Mr Porter said that he wrote to Mr Regan affording him the opportunity of being interviewed which Mr Regan did not accept. Mr Porter said that after reading the Investigating Officer's report he went to the doctor's surgery in Marrickville to see the situation himself. Mr Porter said that Mr Regan had been charged with four counts of breach of his duties. Each of the four were proven, and as a result, a penalty was imposed namely, a reduction in Mr Regan's salary from the highest increment of "point 5 to point 2". (The Tribunal noted that the penalty was later reduced on appeal to the DAC).
In reply to questioning, Mr Porter said that he also conducted an Inquiry on another occasion with regard to incidents at Villawood. Detainees there had made allegations which also involved Mr Regan. He said that complaints had been made that Mr Regan had assaulted a detainee in the APS office at Stage 2. Mr Porter said that Mr Regan had on that occasion not been invited to be interviewed, and by the time of the Investigation, Mr Regan had gone off on sick leave. Mr Porter told the Tribunal details of some other inquiries and Investigations he had carried out.
When asked to give the Tribunal his views as to the appropriateness of the action in respect of Mr Regan, Mr Porter answered:
"Well I thought it was totally appropriate and obviously – but we've been trying to standardise, you might say, and improve the whole disciplinary system within the APS. It had been fragmented prior to that with each regional commander having perhaps a different view and so on and at the time when I was appointed to this position were trying to sort of sell, you might say to the officers the system and try and show that if it was seen to be open and fair in all respects then it would gradually, you know, get the support of all officers, even perhaps some of those who had been or felt they had been dealt with rather harshly."

Mr Regan drew the Tribunal's attention to the fact that there was a requirement for the Inquiry Officer to take into account the charged person's previous employment and general character, and that the findings related to that were in Mr Porter's report. In that regard he asked Mr Porter whether he had known of any difficulties Mr Regan had had in earlier years, or whether he knew of the "transfer situation" related to Kirribilli House. Mr Porter replied in the negative in both cases.
Mr Regan asked Mr Porter:
Mr Regan: "Now one of the aspects which you are required to take into account in arriving at a penalty is the effect of the proposed action on the officer. What were your considerations in relation to that?"
Mr Porter: "Well it's – it's part of it – part of my total considerations but it's … should intend to serve as a very stark reminder to the officer that he had been derelict in his duty in that it affected the reputation of the Australian Protective Service by permitting an escape to occur and at a time when we were having difficulty with DIMA, in any case, and ... of course it was up to him then to learn from this lesson here and in a very practical way, by diminishment of salary, with a hope that he would in future pay proper attention to any escort that he performed in the future."
…
Mr Regan: "… how was it known outside of those circles, and of any benefit in improving the discipline of the APS?"
Mr Porter: "Well, no doubt Mr Regan's fellow officers at Villawood would know, the manager at … Villawood would have to be told. They then notify head office in Canberra. Our senior management needs to inform our head office and officers talk amongst themselves and even their families about some escape that has occurred through somebody's negligence."
Mr James Regan also asked Mr Porter regarding a second time when he had had occasion to deal with Mr Edward Regan in the context of an alleged assault of a Somali detainee. Mr Porter said that when he had last seen the file, Mr Regan had gone off on sick leave, and was not interviewed. Mr Porter said of the results of the investigation: "My recommendation in regard to Mr Regan was that the evidence was inconclusive."
The Tribunal, exploring views expressed by Mr Regan, asked Mr Porter:
The Tribunal: "There is also a feeling that perhaps Mr Regan came with a blotted copy book. What do you say to that?"
Mr Porter: Well if he did, I knew nothing about it, and in fact, the only thing I did know is in my report … apart from the fact the officer didn't submit his referees reports …"
Mr Porter: "I am advised that there is no record of previous misconduct, or formal counselling of the officer in the past 2 years."
Mr Porter told the Tribunal that he did not rely on the Operational Manual (Exhibit R17). He said that he referred to the procedures in the Personnel Management Manuals (Exhibit R16) but relied on the General Orders (Exhibit R15). These documents were before the Tribunal.
MEDICAL EVIDENCE
The Tribunal reviewed the extensive medical evidence before it and has referred here to the evidence both of those doctors who gave evidence before the Hearing as well as certain others whose written reports were before the Tribunal in the T-Documents. Others have simply been noted in coming to a decision with regard to Mr Regan. The summary of the medical evidence follows. The Tribunal has studied the medical reports, but has not repeated the history taken from Mr Regan by the doctors on each occasion. Rather it has concentrated mainly on the discussion of their opinions and diagnoses.
The Tribunal noted Mr James Regan's concern with the amount of time any particular doctor had spent examining and interviewing his brother when reports were being prepared for this appeal. The Tribunal is not concerned with the length of time taken by any one doctor, rather the thoroughness of the reports and the assistance it derived from those and the oral evidence given.

EVIDENCE OF DR GEOFFREY FRANCIS McCARTHY – GENERAL PRACTITIONER

Dr McCarthy, whose report dated 12 July 1999 was before the Tribunal at T26 (N2000/1181), gave oral evidence. His affidavit dated 11 November 2000 was tendered at the Tribunal and accepted into evidence as Exhibit A26. Dr McCarthy who was Mr Regan's general practitioner for an extended period said that he had first seen the Applicant in 1997, and completed a Work Cover certificate concerning him dated 10 November 1997. There were also a number of medical certificates issued by Dr McCarthy for Mr Edward Regan at T11 in N2000/1181. In his report at T26, Dr McCarthy had written that Mr Regan was suffering anxiety state. He had also referred Mr Regan to Dr Roxanas for psychiatric counselling.
Dr McCarthy was referred to his report by Ms Gabriel, namely, paragraph 5 where he had given dates of incapacity as 5 August – 29 August 1997 and 1 February 1998 – 14 August 1998. When asked in cross-examination why there had been a gap, Dr McCarthy said that he did not know because to his knowledge Mr Regan had been incapacitated the entire time.
When referred to his clinical notes, (Exhibit R3), the Tribunal noted that Dr McCarthy's entry for 30 January 1998 indicated that Mr Regan was feeling well and ready to return to work. The Tribunal noted that the next visit to Dr McCarthy was on 14 August 1998 and in respect of that appointment, Dr McCarthy said:
"I've recorded that he was very agitated following an adverse finding in the court case." [Lindgren J's decision handed down 13 August 1998].
Dr McCarthy was questioned further regarding his comments:
Ms Gabriel: "You actually certified Mr Regan incapacitated following that information, is that right?"
Dr McCarthy: "I do, yes"
Ms Gabriel: "So the complaint that was made to you on that occasion which led to the certification was the adverse finding of the Federal Court?"
Dr McCarthy: "Well, that appeared to be the reason behind his condition, yes."
Ms Gabriel: "You've indicated that in your view Mr Regan has a strong sense of grievance with signs of anxiety and at times agitation. Doctor, did you record any symptoms in the strictly medical sense which supported a finding of anxiety as a diagnosis?"
Dr McCarthy: "Well, I haven't made a note of anything apart from what was called a suspected heart attack in August 1997 when he had chest pain and collapse."

Ms Gabriel asked Dr McCarthy:
Ms Gabriel: "Did you sense in your dealings with Mr Regan and you obviously had the opportunity to meet him on a number of occasions, that he was experiencing anger and resentment towards his employer?"
Dr McCarthy: "There was certainly some anger there, yes."
Ms Gabriel: "You've indicated also in the report that the prognosis for Mr Regan's recovery from the anxiety that you diagnosed was resolution of his conflict with the APS. …"
Dr McCarthy: "Basically that his condition didn't appear likely to improve his anxiety and his agitation and his depression while he had this sense of grievance and unfair treatment."

EVIDENCE OF DR MILTIADIS GERASIMOS ROXANAS - PSYCHIATRIST

Dr Roxanas, whose medico-legal report dated 22 December 1997 prepared on behalf of the Applicant was at T14 (N2000/1181), gave oral evidence before the Tribunal. He had seen Mr Regan twice at the end of 1997 and then again in 1998. He said that Mr Regan's distress was tied up with his complaints about work and there was no specific treatment he could offer.
Ms Gabriel referred to Dr Roxanas' clinical notes and the entry for 12 November 1997 with the entry "the patient admits he was somewhat negligent". She pointed out to Dr Roxanas that this statement had not been included in the report at T14. Dr Roxanas acknowledged this. In reply to Mr Regan in amplification of the statement, Dr Roxanas told the Tribunal:
"The detainee was a regular patient of Dr Dee and a certain amount of trust was built up with him. I gather that the patient was going there regularly, things had gone smoothly before and I suspect Mr Regan sort of trusted that the same thing would happen again. That is the picture I had in my mind."
In connection with the notation regarding changed sleep patterns in 1997, Ms Gabriel asked Dr Roxanas:
Ms Gabriel: "Doctor, from your recollection was this charge process a significant factor in Mr Regan's presentation to you?"
Dr Roxanas: "I think it was a factor amongst all the others, yes. Yes, because he felt, as I read and reminded that there's been other escapes and no-one had charged (sic)and he felt picked upon or victimised or whatever."
Dr Roxanas made a diagnosis of panic disorder and a reference to mild PTSD symptoms on page 4 of his report. Ms Gabriel asked him the basis of that, to which Dr Roxanas indicated his notes which recorded: "pallor palpitations tightened in his chest occurring after an acute stressor when he was falsely accused of saying various derogatory remarks. I think he fainted …" Ms Gabriel queried whether applying DSM-IV, the diagnosis would more appropriately have been panic attack. Dr Roxanas replied:
"Perhaps strictly speaking yes, but the criteria in DSM was so rigid that if one stood by, you would have to wait for a patient to become very sick before you treated anybody. So strictly speaking yes, in practice we don't always stick to it."

In cross-examination Dr Roxanas recalled that there was concern by Mr Regan in returning to work at Villawood due to dealing with detainees, riots and disobedience, and a perceived lack of support from superiors and the administration, and recalled that a relocation to anther work place would have allayed those concerns. Ms Gabriel asked:
Ms Gabriel: "Is it your understanding that removal from that environment would have seen resolution of the anxiety associated with it?"
Dr Roxanas: "I would say so."
Ms Gabriel: "Doctor at the completion of your report you make the conclusion regarding prognosis that in your view, it was good once individual – he was withdrawn from the stressful situation. The stressful situation that you refer to, is that the employment with the migrants …"
Dr Roxanas: "Yes."
The Tribunal also noted that Dr Roxanas, in his report at T14, considered Mr Regan's symptoms could be directly attributed to his work.
EVIDENCE OF DR HOWARD FRANCIS SMYTH - MEDICAL PRACTITIONER
Dr Smyth, whose report dated 9 November 2000 was before the Tribunal as Exhibit A55, said that he worked at the St John of God Hospital at North Richmond and was involved in a clinic dealing with PTSD. He said he had some training in psychiatry but was not a qualified psychiatrist. He described himself as "Career Medical Officer in Psychiatry". He said he first saw Mr Regan on 22 August 2000 and recorded Mr Regan suffered from symptoms in the two and half years prior to the date of his report.
Dr Smyth diagnosed Mr Regan as having major depressive illness and prescribed medication accordingly. Dr Smyth told the Tribunal that he had been treating Mr Regan and providing psychiatric care, and that he had seen him some six or eight times. He said that further appointments were scheduled.
Dr Smyth recorded that Mr Regan's symptoms deteriorated from August 1998 and recorded as follows:
"He'd had a - a low mood, decreased interest in his every day activities with a reduced amount of enjoyment, or anhedonia as it's known, insomnia or just significant disturbance in his sleep with early morning wakening, which is another specific characteristic. He'd had decreased energy, decreased enthusiasm for his usual activities, he'd become withdrawn, he had some panic attacks, and a degree of agoraphobia and reduced concentration."

Ms Gabriel asked Dr Smyth as follows:
Ms Gabriel: "Can I ask you are you saying that he would have difficulty with that type of employment or working in a particular workplace?"
Dr Smyth: "Well, both … Well, certainly that particular job because that's where his problems occurred. Certain workplaces may be – may not cause too many problems. In fact he has worked in some minor capacities since…." [railway cleaner]

After replying that he did not know specifically what work Mr Regan did, Dr Smyth opined that Mr Regan could not return to security guard work. He stated:
"Because in addition to the major depression which he suffers from, there are a number of features of post traumatic stress disorder which makes it difficult- although he doesn't have that diagnosis, that type of work makes him more vulnerable to working in a similar capacity…"
Other reasons Dr Smyth gave for his opinion that Mr Regan could not return to his duties at the APS were:
"Well, he claims he was transferred inappropriately after an incident involving his senior officers there.
…
Well, he believes that he was mistreated or unfairly treated by certain officers there who were in a position to give him a hard time. …
… he was told reprisals could occur he didn't, you know, keep quiet …"

Dr Smyth opined that a satisfactory outcome from the AAT Hearing would be beneficial and ease Mr Regan's sense of injustice, but it remained very doubtful whether he would ever be able to return to a normal fulltime job. He said further that Mr Regan could not return to the APS because of a sense of mistrust he now felt about the organisation, the main event being the charges arising out of the Villawood escape. Dr Smyth also acknowledged he knew that Mr Regan had ceased employment immediately after hearing of the outcome of the Federal Court decision, although he understood it to have been a resignation. Dr Smyth considered there had been a number of factors and that this was "the last straw".
EVIDENCE OF DR DERRICK THOMAS LOVELL - FORENSIC PSYCHIATRIST
Dr Lovell, whose reports were before the Tribunal as follows: 20 November 1998 at T23 (N2000/1181); 30 April 1999 (Exhibit R4); 27 November 2000 (Exhibit R5); and 13 February 2001 (Exhibit R6), gave oral evidence. The Tribunal noted that Dr Lovell commented on other reports before the Tribunal including those of Dr Dyball.
Dr Lovell said that he first interviewed Mr Regan on 19 November 1998. Dr Lovell said that in light of the mental state examination on that day he was not able to diagnose any psychiatric condition at that time. He did opine that "He was angry and distressed by his perceptions that he had been unfairly treated by his employer." As to Mr Regan's capacity to work at that time, Dr Lovell stated: "I felt he was fit for work but I stated also that there exists such antagonism toward his employer that a return to work would probably not be successful." Ms Gabriel asked: "Is that antagonism that you noted in your view capable of being characterised as a psychological or psychiatric illness?" Dr Lovell replied: "No".
Dr Lovell replied to Ms Gabriel's questioning about a further examination on 29 April 1999 in relation to any change in Mr Regan's health as follows:
"On that occasion he presented in much the same way as he had previously, except he was a little angrier. He alluded to re-hashing a toxic work environment but essentially, his concentration and his memory were again quite adequate. … I felt he was unwilling to return to work because he was very angry, but didn't believe he suffered from a psychological condition that prevented him working."

Ms Gabriel asked Dr Lovell regarding the diagnosis of panic disorder which had been made by Dr Smyth. Dr Lovell replied that Mr Regan had described one panic attack to him but that:
"The diagnosis of panic disorder requires recurrent unexpected panic attacks and intense apprehension about further panic attacks … one swallow does not make a summer … one panic attack does not constitute a diagnosis of panic disorder."

When questioned about whether the diagnosis of PTSD as made by others was an appropriate one, Dr Lovell opined that he would find it very surprising. He detailed the symptoms and signs of PTSD and said they were not evident in Mr Regan.
As to major depression; Dr Lovell said that the doctor who had made the diagnosis examined Mr Regan some time after Dr Lovell (April 1999). Dr Lovell said that when he examined Mr Regan he was not able to diagnose major depression. He referred the Tribunal to the tests in DSM-IV.
As to adjustment disorder; Dr Lovell said that it was a difficult diagnosis because it was frequently a "grab bag" of residual diagnoses. He said that the Applicant had marked obsessional traits and:
"it is not unusual when an obsessional individual is stressed for them to ruminate obsessionally about their troubles, and generally, an adjustment disorder is not made when an individual suffers from symptoms in the context of a personality disorder. If we look at DSMIV if the response is understandable in view of the personality structure then it is really unnecessary to make an adjustment disorder diagnosis."

In his report dated 13 February 2001, Dr Lovell had stated:
"His persisting sense of unfairness and the diligence and tenacity with which he pursues his perception of justice suggest obsessional personality traits and possibly a personality disorder. The psychiatric issue is whether he is angry or ill.
…
One needs to be very very careful in making a diagnosis of a personality disorder. It is generally not a diagnosis which is made at a single, or even at two interviews. There has to be evidence of enduring difficulties over a period of time. I reached that diagnosis on the basis of the large volume of documents and the persisting feelings of anger and injustice and the intense obsessionality with which these documents were written."
Dr Lovell opined in his report dated 27 November 2000 at Exhibit R5 that:
"Mr. Regan alleges bias in document 36, a letter to Mr. van den Tol dated 13 May 1997. Again, Mr. Regan does not appear to accept that he has done anything wrong." [Dr Lovell's emphasis]
The Tribunal noted that Mr James Regan pointed out what he considered were factual errors in Dr Lovell's reports, but ones which the Tribunal did not consider impacted on the value to it of the reports, or the diagnosis of the Applicant.
EVIDENCE OF DR KENNETH DYBALL - PSYCHIATRIST
Dr Dyball, whose report of 24 January 2000 was before the Tribunal at T28 (N2000/1181), gave oral evidence. He had made further reports dated 2 May 2000 (Exhibit R7), 28 November 2000 (Exhibit R8) and 12 February 2001(Exhibit R9).
In his report at T28, Dr Dyball opined that Mr Regan:
"suffers an adjustment disorder with anxiety and depression this relating to a fight he has had in which he regards himself as an entirely innocent victim and someone who is being victimised by the powers that be in the Australian Protective Service."
Dr Dyball commented on the documentation sent to him by the Respondent. The Tribunal noted that he considered a quantity of that material as "legal" rather than "medical" and correctly declined to comment on it.
The Tribunal noted that Ms Gabriel drew Dr Dyball's attention to notes of the South Western Sydney Area Health Service of 29 September 1997 relating to the Applicant. Dr Dyball said that the document related to an incident when Mr Regan had "passed out at work and was taken to hospital." He said that Mr Regan was seen by a cardiological registrar who found no obvious abnormality and made no diagnosis. He said that there had been some talk of a panic attack but that: "there is nothing in these notes to support that diagnosis. There is no palpitations, rapid heart beats, sweating, fear of death, there is nothing to support the fact that these are related to a panic attack."
Dr Dyball was referred to his diagnosis of the Applicant as having adjustment disorder. In that regard, Dr Dyball stated:
"In assessing someone psychiatrically you first need to decide whether they are reacting within normal parameters. Immediately outside the normal parameters but in a way blending into them, starts an adjustment disorder. It is the first and least illness abnormality that exists usually in terms of exaggerated anxiety or depression. Adjustment disorders are quite common psychiatric illnesses and are the least serious, so to speak, of them.
… I felt that his [Mr Edward Regan's] initial response and probably up to about August 1998 was pretty much within normal limits. He was upset. He was annoyed. He was frustrated by what had gone on. He very much saw himself as a victim. That he had been unfairly and unreasonably treated and anyone in that situation is hardly going to be happy. He was determined to fight for justice.
…
By January 1998, Dr McCarthy said he was feeling well. … He went back to work and he did not see Dr McCarthy again until August 1998 after the Federal Court finding was handed down. I think it was probably after this that Mr Regan's feelings and behaviour began to fall into the illness category. His determination to fight on no matter what the cost and his dedication of his whole life to it is, perhaps, a little more than one would expect of most of the general population and, if his account is correct, since August 1998 his life has been dedicated to this fight."
Ms Gabriel also asked Dr Dyball about Mr Regan's capacity for employment. Dr Dyball answered that in January 2000 when he saw him: "There was no way he was going to work then and he made that clear and he had some doubts whether he would ever work again but he was certainly not going to work until …"
To a question of the Tribunal requesting clarification of Dr Dyball's statement "no way he would work then", and whether that meant Mr Regan did nor wish to work or could not, Dr Dyball said that both applied. He continued: "He wasn't game to work until his litigation was out of the way and I don't think he could have. He was dedicated 100% to his battle to clear his name." Dr Dyball said that it was in part illness, and in part determination to fight on regardless. He said determination could in part be illness, but one could be determined without being ill.
Ms Gabriel also asked Dr Dyball:
Ms Gabriel: ".. on the basis of your assessment and your review of the material are you aware of a need for medical treatment?
Dr Dyball: Well I think much will depend again on the outcome of litigation. If Mr Regan feels justified I'm not sure that he will necessarily pursue any medical treatment at all. I think he will feel vindicated. If not he will no doubt feel a depressed, angry, unhappy, unjustified man."

Dr Dyball said that he came to the same diagnostic conclusion (adjustment disorder) as Dr Canaris but indicated that both commented it was subject to whether the account given by the Applicant was "objectively accurate" and whether he had "indeed been singled out for victimisation and unfair treatment."
MEDICAL REPORTS OF DR CHRISTOPHER ARISTIDES CANARIS – FORENSIC PSYCHIATRIST
Dr Canaris produced reports of 25 May 1999 and 24 May 2000 which were before the Tribunal as T25 and T35 (N2000/1181) respectively. He did not give oral evidence.
In his report at T25, Dr Canaris concluded as follows to Mr Regan's advisors:
"Your client's account, if accurate, indicates that he has been through a very difficult and stressful period in his life. He has effectively been singled out it would seem for unfair punishment and his attempts to redress the injustice have snowballed into a protracted drama. This has caused him great distress, the last straw being his defeat in the Federal Court apparently to the considerable surprise of his legal advisors fuelled by the perception that evidence in this matter has been falsified and distorted.
As regards diagnosis, I see him suffering from an Adjustment Disorder though some features of Post Traumatic Stress Disorder (though by no means the full syndrome) appear to be present. The fundamental feature driving his illness seems to be his perception of unfair treatment in the face of loyal service sometimes in the context of substantial and frightening confrontations particularly in his time at Villawood. …
He impresses me as a resourceful individual who when he gets his day in court will most likely bounce back. …"
In his report at T35, approximately a year later, Dr Canaris opined:
"Little has changed for your client as far as I can tell. I think his diagnosis remains the same – one of adjustment disorder with some of the features of Post Traumatic Stress Disorder. The change from anger to sadness is in some respects healthy in that it suggests a degree of processing or assimilation of his trauma. … This is in keeping with my earlier observations of him as a resilient individual who may well eventually make a good psychological recovery."

MEDICAL REPORT OF DR J COCHRANE – HEALTH SERVICES AUSTRALIA

Dr Cochrane, whose report dated 16 October 1998 was before the Tribunal at T20, (N2000/1181), opined that given Mr Regan's anxiety state and expressed concern regarding the carrying of a weapon, it would be helpful to have an independent psychiatric opinion regarding long term prognosis. He stated that Mr Regan should be considered unfit for work until the review had been carried out.
MEDICAL REPORT OF DR DALE KONG- HEALTH SERVICES AUSTRALIA
Dr Kong wrote to the APS on 17 December 1998 (Exhibit A48) and confirmed that she had received Dr Lovell's report. She wrote a further report dated 14 May 1999 (Exhibit A56) and relying on the report of Dr Lovell, opined that there was no reason Mr Regan could not participate in a return to work program.
"… Dr Lovell felt that Mr Regan did not have a specific psychiatric disability. He has indicated that much of Mr Regan's current condition relates to his perception of being treated unfairly at work. Dr Lovell felt that Mr Regan's inability to attend work at present was related to these perceptions rather than any psychiatric disorder…
Currently Mr Regan would be fit for administrative type duties. However, it is unlikely that he will wish to return to the environment of the Australian Protective Service whilst his feelings of anger persist."

CLINICAL NOTES OF DR ANDREW WHITE

The Tribunal was also mindful that the clinical notes and attachments of Dr A White recording visits by Mr Regan were before the Tribunal as Exhibit A9. The dates ranged from 1989 to 1997, with entries made concerning anxiety arising from the workplace, and recording the stress of working with detainees, and the apprehension regarding the outsourcing of the custodial work as reported by Mr Regan (1997).
SUBMISSIONS AND CONCLUSIONS
The Tribunal must take into account the evidence, submissions both oral and written, the case law and legislation to make the correct and preferable decision regarding Mr Regan's entitlement for compensation for anxiety state.
As noted above, the Tribunal was required to consider the following in reaching the correct and preferable decision:
·     Whether the Respondent is liable to Mr Edward Regan for an injury or a disease suffered pursuant to section 4(1) of the Safety Rehabilitation and Compensation Act 1988;
·     If he suffered an injury or disease, whether Mr Edward Regan's employment materially contributed to his condition;
·     Whether any incapacity suffered had been caused by reasonable disciplinary action; and
·Whether Mr Edward Regan was entitled to be paid compensation pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 for permanent impairment.

In his report of 13 February 2001, Dr Lovell stated:
"His persisting sense of unfairness and the diligence and tenacity with which he pursues his perception of justice suggest obsessional personality traits and possibly a personality disorder. The psychiatric issue is whether he is angry or ill.
…
. I reached that diagnosis on the basis of the large volume of documents and the persisting feelings of anger and injustice and the intense obsessionality with which these documents were written."
Dr Dyball was referred to his diagnosis of the Applicant as having adjustment disorder. In that regard, Dr Dyball stated:
"… I felt that his [Mr Edward Regan's] initial response and probably up to about August 1998 was pretty much within normal limits. He was upset. He was annoyed. He was frustrated by what had gone on. He very much saw himself as a victim. That he had been unfairly and unreasonably treated and anyone in that situation is hardly going to be happy. He was determined to fight for justice.
…
By January 1998, Dr McCarthy said he was feeling well. … He went back to work and he did not see Dr McCarthy again until August 1998 after the Federal Court finding was handed down. I think it was probably after this that Mr Regan's feelings and behaviour began to fall into the illness category. His determination to fight on no matter what the cost and his dedication of his whole life to it is, perhaps, a little more than one would expect of most of the general population and, if his account is correct, since August 1998 his life has been dedicated to this fight."
Ms Gabriel also asked Dr Dyball about Mr Regan's capacity for employment. Dr Dyball answered that in January 2000 when he saw him: "There was no way he was going to work then and he made that clear and he had some doubts whether he would ever work again but he was certainly not going to work until …"
To a question of the Tribunal requesting clarification of Dr Dyball's statement "no way he would work then", and whether that meant Mr Regan did nor wish to work or could not, Dr Dyball said that both applied. He continued: "He wasn't game to work until his litigation was out of the way and I don't think he could have. He was dedicated 100% to his battle to clear his name." Dr Dyball said that it was in part illness and in part determination to fight on regardless. He said determination could in part be illness but one could be determined without being ill.
Ms Gabriel also asked Dr Dyball:
Ms Gabriel: ".. on the basis of your assessment and your review of the material are you aware of a need for medical treatment?
Dr Dyball: Well I think much will depend again on the outcome of litigation. If Mr Regan feels justified I'm not sure that he will necessarily pursue any medical treatment at all. I think he will feel vindicated. If not he will no doubt feel a depressed, angry, unhappy, unjustified man."
Dr Dyball said that he came to the same diagnostic conclusion (adjustment disorder) as Dr Canaris but indicated that both were subject to whether the account given by the Applicant was "objectively accurate" and whether he had "indeed been singled out for victimisation and unfair treatment."
Dr Canaris In his report at T25 (N2000/1181), Dr Canaris concluded as follows to Mr Regan's advisors:
"Your client's account, if accurate, indicates that he has been through a very difficult and stressful period in his life. He has effectively been singled out it would seem for unfair punishment and his attempts to redress the injustice have snowballed into a protracted drama. This has caused him great distress, the last straw being his defeat in the Federal Court apparently to the considerable surprise of his legal advisors fuelled by the perception that evidence in this matter has been falsified and distorted.
As regards diagnosis, I see him suffering from an Adjustment Disorder though some features of Post Traumatic Stress Disorder (though by no means the full syndrome) appear to be present. The fundamental feature driving his illness seems to be his perception of unfair treatment in the face of loyal service sometimes in the context of substantial and frightening confrontations particularly in his time at Villawood …"
Dr Kong wrote to the APS on 17 December 1998 (Exhibit A48)and confirmed that she had received Dr Lovell's report. She stated:
"… Dr Lovell felt that Mr Regan did not have a specific psychiatric disability. He has indicated that much of Mr Regan's current condition relates to his perception of being treated unfairly at work. Dr Lovell felt that Mr Regan's inability to attend work at present was related to these perceptions rather than any psychiatric disorder…
Currently Mr Regan would be fit for administrative type duties. However, it is unlikely that he will wish to return to the environment of the Australian Protective Service whilst his feelings of anger persist."
Ms Gabriel submitted, correctly the Tribunal believes, and referring to a decision of Senior Member Beddoe in Van Houten (supra) that if an employee perceives a work contribution but that the perception is false, then no liability arises. The Tribunal noted that Senior Member Beddoe stated:
"It does not follow, in my view that because the applicant developed these adverse perceptions about his employment with consequential stress and depression that the employment made a material contribution to the applicant's condition of major depression."
Thus, the Tribunal could not be satisfied on the basis of the above to find that Mr Regan's anxiety state, adjustment disorder or aggravation of his personality disorder was presently contributed to by his workplace. It certainly did not seem to be a happy workplace, but it was almost unanimous amongst both the lay witnesses and the medical witnesses cited above that the disciplinary action and anger towards his employers, and the dismissal of the Federal Court case made a material contribution to any disease Mr Regan suffered. Indeed the timing of the most recent claim for compensation and the last day of his attendance at work dated precisely from the date the Federal Court decision was handed down. That in the Tribunal's view was not simply a coincidence.
The Tribunal accepted that liability for a compensable condition had been accepted, most recently from September 1997 to 31 January 1998. However the Tribunal was satisfied from the evidence before it that there was, since the return to work on 1 February 1998, (when the Applicant informed his doctor that he was feeling well and ready to return to work), no material contribution of the work place to any condition Mr Regan has since suffered. Rather, any inability to work and any incapacity after that date, arose out of the anger and resentment Mr Regan feels with regard to the disciplinary process he underwent and his reaction to the Federal Court's decision. The majority of the medical reports bear this out, and the lay witnesses mainly focussed on the perceived unfairness of the disciplinary process applied to Mr Regan. The Tribunal finds that there is no material contribution of the workplace to any condition Mr Regan now suffers.
WHETHER MR EDWARD REGAN'S CONDITION OCCURRED AS A RESULT OF REASONABLE DISCIPLINARY ACTION AS CONTEMPLATED BY SECTION 4 OF THE ACT
For the sake of completeness the Tribunal then considered whether any condition Mr Regan suffers has arisen as a result of reasonable disciplinary action (section 4(1) of the Act), because if so, any injury or disease arising falls within the exclusionary provisions and is not compensable. If on the other hand, the Tribunal, having considered the evidence and the case law, holds that the disciplinary action was not reasonable within the terms of the legislation, (O'Donohue (supra) Wilden v Comcare (AAT 12812, 21 April 1998) and others), then any condition Mr Edward Regan suffers as a result of the disciplinary action is compensable.
The Tribunal was mindful of the decision in Commission for the Safety Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75, where Cooper J had in that decision stated that:
"… in the context of the definition of injury in section 4(1) of the Act, the phrase 'disciplinary action' means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline."
The Tribunal noted Ms Gabriel's submission that the findings of the DAC and the Federal Court supported that the action was reasonable and lawfully taken.
The question of what reasonable means has often been before the Tribunal, and authorities included Beaumont J in Repatriation Commission v Webb (1987) 76 ALR 131, Battye v Comcare [2000] AATA 18, Wierzbicki v Comcare [1999] AATA 123 and O'Donohue (supra). Beaumont J in Webb (supra) held that disciplinary action must not be "irrational, absurd or ridiculous" which the Tribunal respectfully accepts, but this Tribunal was prepared to take a more expansive view of the concept considering what Bowen CJ and Gummow J held in Secretary Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621 where it was stated as follows:
"The criterion is an objective one which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account."
The Tribunal was mindful in applying the principles discussed above that the disciplinary action taken was to charge Mr Regan and Mr Hogan because an unlawful non-citizen who had been in their care and custody escaped on 6 November 1996 while at a doctor's surgery.
The Tribunal noted that Mr Porter, the officer appointed under section 62(1) of the Public Service Act 1922 to hold an Inquiry on behalf of the APS, made a direction pursuant to section 62(6) of the Public Service Act 1922, that the following disciplinary action be taken against Mr Regan in respect of the four charges which he found proven:
"Reduction of your salary from the level of salary point 5 to the level of salary point 2, within the Protective Service Officer Grade 1 salary range, for a minimum period of 12 months, with any subsequent advancement thereafter from that salary level to higher salary points within that salary range according to the normal process."
In reaching his decision, Mr Porter found the primary reasons for making the direction outlined above were:
"… the degree of the seriousness of your negligence when carrying out the escort of UNC Ahmed, a person in your joint custody with PSO1 Hogan, and subsequently resulted in the escape of that person when in your sole custody; your failure to immediately notify your supervisor or other APS officers of Ahmed's escape; and your previous satisfactory conduct."
Mr Edward Regan applied to the DAC to review the penalty ordered by Mr Porter, the Inquiry Officer. The DAC was satisfied that three of the charges were proven and concluded that in all the circumstances of the case that the penalty may have been too severe. Consequently, the DAC varied the decision by specifying that Mr Regan's salary be reduced from "point 5 to point 3" of the PSO Grade 1 salary range for a period of twelve months and after the end of that period increased to "point 4" of that range.
In coming to its decision, the DAC found that Mr Edward Regan:
·Failed to comply with Rule 4 of the General Order 17 of the Australian Protective Service General Orders in that he allowed the unlawful non-citizen attend the toilet unescorted and escape.
·Failed to comply with Rule 6(1)(a) of the General Order 17 of the Australian Protective Service Orders in that after the escape Mr Regan failed to seek immediate assistance from fellow officers as he was required to do.
Justice Lindgren of the Federal Court handed down his decision on 13 August 1998 in respect of a review of the decision of the DAC appealed as "breach of the rules of the rules of natural justice occurred in connection with the making of the decision". Lindgren J was not persuaded that the grounds of review were made and dismissed the application.
The Tribunal heard from Mr Porter who had been appointed by Mr van den Tol to be the Inquiry Officer, although it did not hear evidence from Mr Baker who had conducted the Investigation. The Tribunal was mindful that Mr Regan had grave concerns about the officers conducting the Investigation and the Inquiry, and the persons and circumstances surrounding it. The Tribunal was satisfied of the credentials of Mr Porter who told the Tribunal that prior to joining the APS he had served 33 years with Victoria Police, had been a District Commander and Chief Superintendent, and had received a commendation.
Mr Porter told the Tribunal that he was now retired but immediately before retirement had been a Superintendent with the APS. When asked about his conduct of the Inquiry, Mr Porter said that he wrote to Mr Regan affording him the opportunity of being interviewed, noting that Mr Regan did not accept this offer. Mr Porter said that after reading the Investigating Officer's report he went to the doctor's surgery in Marrickville where the escape had occurred to see the situation himself.
The Tribunal noted that Mr James Regan was very concerned that there was no signed statement by the doctor's receptionist, Ms Diamantopoulou, and that one could not be produced. Mr Regan told the Tribunal that he had been to the surgery and discussed the matter with Ms Diamantopoulou some time after the escape. Mr Porter told the Tribunal that he had taken a statement in his handwriting from her, and typed the statement up from that. He told the Tribunal that on retirement he had bundled up his papers and sent them to Canberra so he no longer had them. The Tribunal acknowledges Mr James Regan's sense of annoyance about the lack of a signed statement, noting however that Ms Diamantopoulou gave oral evidence before the DAC. The Tribunal did not find, given the large amount of other material available, that the lack of such statement has impacted on its decision making.
When asked to give the Tribunal his views as to the appropriateness of the action in respect of Mr Regan, Mr Porter answered:
"Well I thought it was totally appropriate and obviously – but we've been trying to standardise, you might say, and improve the whole disciplinary system within the APS. It had been fragmented prior to that with each regional commander having perhaps a different view and so on and at the time when I was appointed to this position we were trying to sort of sell, you might say, to the officers the system and try and show that if it was seen to be open and fair in all respects then it would gradually, you know, get the support of all officers, even perhaps some of those who had been or felt they had been dealt with rather harshly."

Mr Regan drew the Tribunal's attention to the fact that there was a requirement for the Inquiry Officer to take into account the charged person's previous employment and general character and that the findings related to that were in Mr Porter's report. In that regard he asked Mr Porter whether he had known of any difficulties Mr Regan had had in earlier years, or whether he knew of the "transfer situation" related to Kirribilli House. Mr Porter replied in the negative in both cases.
Mr Regan asked Mr Porter:
Mr Regan: "Now one of the aspects which you are required to take into account in arriving at a penalty is the effect of the proposed action on the officer. What were your considerations in relation to that?"
Mr Porter: "Well it's – it's part of it – part of my total considerations but it's … should intend to serve as a very stark reminder to the officer that he had been derelict in his duty in that it affected the reputation of the Australian Protective Service by permitting an escape to occur and at a time when we were having difficulty with DIMA, in any case, and ... of course it was up to him then to learn from this lesson here and in a very practical way, by diminishment of salary, with a hope that he would in future pay proper attention to any escort that he performed in the future."
…
Mr Regan: "… how was it known outside of those circles, and of any benefit in improving the discipline of the APS?"
Mr Porter: "Well, no doubt Mr Regan's fellow officers at Villawood would know, the manager at .. Villawood would have to be told. They then notify head office in Canberra. Our senior management needs to inform our head office and officers talk amongst themselves and even their families about some escape that has occurred through somebody's negligence."
The Tribunal, reflecting views expressed by Mr Regan, asked Mr Porter:
The Tribunal: "There is also a feeling that perhaps Mr Regan came with a blotted copy book. What do you say to that?"
Mr Porter: Well if he did, I knew nothing about it , and in fact, the only thing I did know is in my report … apart from the fact the officer didn't submit his referees reports …"
Mr Porter: "I am advised that there is no record of previous misconduct, or formal counselling of the officer in the past 2 years."

Mr Porter told the Tribunal that he did not rely on the Operating Manual but referred to procedures in the Personnel Management Manual and also General Orders which were in fact before the Tribunal as Exhibits R15, R16 and R17.
The Tribunal also heard from Mr van den Tol who is now part of the Senior Executive Service of the Australian Public Service in Canberra, who said that he had been involved in having the escape of an unlawful non-citizen in the care of Mr Regan investigated, and that he had engaged Mr Porter to conduct the Inquiry.
Mr van den Tol recounted his experiences with regard to escapes. He said that he could recall two incidents where detainees escaped from Villawood in 1997, and a further incident in the city in conjunction with a court appearance. He said that in one the officer involved had been found guilty of negligence (he could not recall the penalty), and in the other two out of Villawood, the security had been poor and no disciplinary action was taken. He recalled two other incidents where officers had been intoxicated while on duty and were charged and found guilty and penalties were imposed.
As to how Mr Regan came to be charged, Mr van den Tol said that:
"I just can't see how I could have been any more independent and followed the Public Service Act as it was at the time, under the Public Service Act, I followed it exactly as we were supposed to follow it and we got advice from the Government Solicitor on the process along the way. …
I formed the opinion that there may have been a case to answer.
…
Having signed as the authorised officer, the charges are laid, it's then handed over to the inquiry officer who determines the outcome."
Mr Regan asked:
Mr Regan: "Looking at the train of conversation between yourself and the applicant would you think that an independent observer might make certain observations in relation to your management style?"
Mr van den Tol: "I think an independent observer would look at the case and say what process had to be followed, was it fair and equitable and if you look at the process that had to be followed, I followed it to the letter and the conclusion can be no other, well, due process was followed."
In reply to a question from the Tribunal regarding the differences in treatment of officers concerned between the various escapes, Mr Van den Tol compared the situation at a facility where there was a large compound with few officers on duty at a time, a situation where it was relatively easy for a detainee to scale a fence and escape with the situation of Mr Regan in the doctor's surgery. In the surgery it had been Mr Regan alone guarding one unlawful non-citizen. He said that in the case of Mr Regan, the detainee had been permitted to attend the toilet three times unsupervised before he escaped through a back door while Mr Regan remained reading a book in the waiting room and had not checked the security. He said that by the request for a third visit to the toilet within a short time, Mr Regan should have been alerted to check for problems. He said that Mr Regan was only alerted after the doctor's secretary asked him about the detainee some 15 – 20 minutes after the escape, a totally different situation from escapes from a compound where the authorities knew security was difficult to monitor. In any case, Mr van den Tol said, he had sought advice of the Australian Government Solicitor and it was on the basis of that advice that the charges against Mr Regan were framed.

The Tribunal noted Mr van den Tol maintained that the escape had occurred regardless of whether Mr Regan had been reading, talking or engaging in other activities; the fact remained he had not checked on security, or the unlawful non-citizen with respect to the back door, and the detainee had escaped after three visits to the toilet. The Tribunal did not find that this factual error regarding whether Mr Regan was reading or not in any way altered the situation.
When questioned further by the Tribunal regarding the discretion to proceed with charges or counselling or other measures, Mr van den Tol replied:
"… well on the basis we could go – go to counselling or we could go to – we go to warning. I considered in view of the incident itself and the nature of the incident and the severity that I would proceed to charges."

As to the exercise of the discretion, referring to Villawood, Mr van den Tol added:
"I mean the – again, you look at the incident report and look at the … circumstances. You know someone again, on a windy night in August going over the wall at 2 o'clock in the morning where we have one internal guard on the – in the perimeter and one external. You look at the situation and say: well, yes, well you know, in that situation I really couldn't lay … lay charges …. All we could do is impress upon the Department of Immigration to up – upgrade the security system …"
The Tribunal was mindful that Mr Regan acknowledged, albeit only once as far as it could ascertain, (to Dr Roxanas), that he had been negligent. The Tribunal noted however that Dr Lovell opined in Exhibit R5:
"Mr. Regan alleges bias in document 36, a letter to Mr. van den Tol dated 13 May 1997. Again, Mr. Regan does not appear to accept that he has done anything wrong." (Dr Lovell's emphasis)
The Tribunal noted that one of the main features of Mr Regan's claim, as corroborated by his witnesses, was that he had been singled out to be disciplined in the way that he was. Several of the lay witnesses claimed to have been involved in escapes and not similarly charged. Many of the lay witnesses told the Tribunal Mr Regan was the only officer they knew of who had been thus charged over an escape. The implication intended to be drawn by the Tribunal was that the action taken to discipline Mr Regan over the escape was unreasonable. The Tribunal noted from the evidence of Mr van den Tol and documents before it that not only had Mr Hogan (who was with Mr Regan on the particular escort) been disciplined, but there had been others disciplined over escapes and other breaches of their duties. That factor alone would in any case not have led the Tribunal to a conclusion that the disciplinary action was unreasonable.
The Tribunal noted the provision of a document detailing approximately 200 escapes recorded since 1988 (N99/1540 T9 and Exhibit A31), and accepted the evidence of Messrs Porter and van den Tol that other officers had at various times also faced charges. The Tribunal noted that Mr Hogan had also been charged, and was mindful that other disciplinary action had been taken in the APS for various offences, including against some of the Applicant's witnesses before the Tribunal who freely admitted this when questioned. What was reasonable in the view of the Tribunal, was a requirement to take into account all the circumstances regarding the Applicant, not just how some other personnel was treated in some other unknown circumstances. (Styles and Webb (supra)).
The Tribunal considered Mr Regan's dissatisfactions regarding the disciplinary action taken against him in relation to the escape of the unlawful non-citizen. It also considered the evidence of Mr van den Tol, and Mr Porter regarding the Inquiry. After considering the case law and adopting the reports of the DAC and the findings of the Federal Court, the Tribunal was satisfied that lawful procedures had been employed in the disciplinary action taken against Mr Regan.
Mr James Regan in his written submissions suggested that the disciplinary action Mr Edward Regan underwent was unreasonable. The Tribunal has considered those submissions and the case law noting that in Wilden (supra) and O'Donohue (supra), Senior Member Lewis held the disciplinary action taken there to be unreasonable. The Tribunal preferred the submissions of the Respondent in this regard applying Webb (supra) and Department of Foreign Affairs v Styles (supra). The Tribunal was satisfied that as the relevant General Orders and other protocols had been followed, and as having formal charges laid is not compensable, that (taking into account the findings of Lindgren J, the DAC, and the evidence before the Tribunal), Mr Regan's present condition has arisen out of reasonable disciplinary action.
The Tribunal considered the evidence of the doctors whose reports have been discussed in detail in the sections above, and will not be repeated here. Virtually every doctor involved in this matter with the exception of Dr Smyth related Mr Regan's condition to his perceptions regarding the disciplinary action taken against him. That disciplinary action is held by this Tribunal to have been reasonable pursuant to the legislation. As noted previously, several of the doctors opined that once the litigation ceased, provided it was in Mr Regan's favour, his condition would improve. Mr Regan himself said that the result of the Federal Court decision was "the last straw". He did not agree with the findings.
Adopting the majority of the medical evidence and having considered all the other evidence and submissions, and applying the law, the Tribunal finds that any condition suffered by Mr Regan arose out of reasonable disciplinary action, and was therefore not compensable.
WHETHER MR EWARD REGAN WAS ENTITLED TO BE PAID COMPENSATION PURSUANT TO SECTION 24 AND 27 OF THE ACT FOR PERMANENT IMPAIRMENT
The Tribunal also considered whether Mr Regan was entitled to be paid compensation pursuant to sections 24 and 27 for permanent impairment arising out of his employment.
Certainly the evidence of his colleagues who gave evidence before the Tribunal indicated he had changed over the years from being a happy person in 1994 to later being withdrawn. The Tribunal accepted that evidence. However almost all the witnesses, both medical and lay, referred to his reactions arising out of the escape of the unlawful non-citizen in Mr Regan's custody, and the disciplinary action which followed. Many of the lay witnesses told the Tribunal Mr Regan was the only officer they knew of who had been thus charged over an escape. The implication intended to be drawn by the Tribunal was that the action taken to discipline Mr Regan over the escape was unreasonable. The Tribunal noted from the evidence of Mr van den Tol and documents before it that not only had Mr Hogan (who was with Mr Regan on the particular escort) been disciplined, but there had been others disciplined over escapes and other breaches of their duties. That factor alone would in any case not have led the Tribunal to a conclusion that the disciplinary action was unreasonable.
For the sake of completeness the Tribunal has noted also the opinions of those doctors who reported on Mr Regan's prognosis. The general view, including that of Doctors Roxanas, Lovell, Dyball, and Canaris was that if Mr Regan were removed from his employment which dealt with the custody of unlawful non-citizens and/or once the litigation was over and Mr Regan felt vindicated, his condition would improve. Dr Lovell in his report of 2 May 2000 stated in reply to Phillips Fox regarding permanent impairment
"You ask in a separate report whether there is permanent impairment. In the sense that this man will not work again until his matters are legally ended there is indeed permanent impairment. He is fully occupied in fighting his case and determined to do so no matter what the cost. He has no time or interest in work aside from this matter. The outlook in major degree will depend upon whether he receives the legal judgement that vindicates him. If he does not he is likely to remain an unhappy man with a persistent sense of victimisation."
The Tribunal was mindful that Dr Dyball did not understand permanent impairment pursuant to the Comcare "Guide to the Assessment of the Degree of Permanent Impairment" in the way in which the Tribunal could consider it.
The Tribunal then noted that even Dr McCarthy, Mr Regan's general practitioner whom it was likely he had seen more times than any other medical practitioner opined that "basically that his condition didn't appear likely to improve his anxiety and his agitation and his depression while he had this sense of grievance and unfair treatment." It is noted that in support of Mr Regan's application at PT30 (N2000/1181), Dr McCarthy replied that Mr Regan suffered a 20% impairment. He indicated that the impairment consisted of "loss of energy, motivation, withdrawal from contact with others, poor memory, concentration, obsession (sic) thinking."
Dr Smyth opined that there had been many factors contributing to Mr Regan' condition, and that the outcome of the Federal Court decision was "the last straw".
The Tribunal noted that his report at T25 (N2000/1181), Dr Canaris concluded as follows to Mr Regan's advisors:
"As regards diagnosis, I see him suffering from an Adjustment Disorder though some features of Post Traumatic Stress Disorder (though by no means the full syndrome) appear to be present …
He impresses me as a resourceful individual who when he gets his day in court will most likely bounce back. …"
In his report at T35 (N2000/1181), approximately a year later, Dr Canaris opined:
"Little has changed for your client as far as I can tell. I think his diagnosis remains the same – one of adjustment disorder with some of the features of Post Traumatic Stress Disorder. The change from anger to sadness is in some respects healthy in that it suggests a degree of processing or assimilation of his trauma. … This is in keeping with my earlier observations of him as a resilient individual who may well eventually make a good psychological recovery."
The Tribunal noted that Ms Gabriel asked Dr Dyball:
Ms Gabriel: ".. on the basis of your assessment and your review of the material are you aware of a need for medical treatment?
Dr Dyball: Well I think much will depend again on the outcome of litigation. If Mr Regan feels justified I'm not sure that he will necessarily pursue any medical treatment at all. I think he will feel vindicated. If not he will no doubt feel a depressed, angry, unhappy, unjustified man."
The Tribunal preferred the opinions of the majority of the doctors who found that if the litigation was resolved in his favour, Mr Regan's condition would improve, and that if he no longer had to work with detainees it would also improve. The Tribunal accepted the submissions of the Respondent with regard to permanent impairment, accepting that Mr Regan felt aggrieved and did not wish to return to work with the APS, rather than that he had an incapacity to do so, or suffered a permanent impairment.
Notwithstanding, all of the above, as liability of the Respondent has not been established on and from 31 January 1998, because the Tribunal is satisfied that any condition Mr Regan suffers has arisen as a result of reasonable disciplinary action, then liability for permanent impairment does not arise. The Tribunal is unable to find that Mr Regan is permanently impaired.
DECISION
N1999/1540: The Administrative Appeals Tribunal affirms the decision of the Independent Review Officer of the Canberra Claims Management Centre - Comcare, the Respondent in these proceedings, dated 24 August 1999, which affirmed the decision of Comcare dated 2 December 1998 to disallow compensation to the Applicant, Mr Edward Regan, for anxiety state.
N2000/1181: The Administrative Appeals Tribunal affirms the decision of the Independent Review Officer of the Canberra Claims Management Centre - Comcare dated 30 June 2000, which affirmed the decision of Comcare dated 7 March 2000 to disallow the Applicant's claim for permanent impairment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988.
Costs: No costs may be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.
I certify that the 301 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Dr M E C Thorpe Member
Signed:         .....................................................................................
Elizabeth Geddes
Associate
Date/s of Hearing  12,13,14 March 200; 4 April 2001
Written submissions finalised            23 May 2001
Date of Decision   28 June 2001
Representative for the Applicant        Mr James Regan, (brother of the Applicant)
Counsel for the Respondent              Ms L Gabriel
Solicitor for the Respondent              Mr G Stuart, Phillips Fox