British Amusement Catering Trades Association v Westminster City Council

FEDERAL COURT OF AUSTRALIA ) No. QG 75 of 1995 QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION ) ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: COMCARE Applicant AND: PAUL MOOI Respondent REASONS FOR JUDGMENT This is an appeal under s 44 the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Tribunal which declared that the applicant was incapacitated for work in circumstances which entitled him to compensation for most of the period between 28 September 1992 and 5 April 1993. In his original compensation application, the respondent identified "work-related stress" as the reason for this incapacity. The appellant's substantial ground of challenge to the Tribunal's decision was that it was an error of law for the Tribunal to hold that the respondent was entitled to compensation under s 14(1) the Safety Rehabilitation and Compensation Act 1988 (Cth) without finding that the condition said to have incapacitated him for work amounted to a physical or mental injury or disease. The respondent's answer was that s 14(1) requires only a nexus to be established between a work-caused mental or bodily condition of the employee and his incapacity to work. The relevant provisions of the Act are as follows: (a) section 14(1) provides that the applicant is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment of that capacity. (b) "injury" is defined by s 4 of the Act as, inter alia, a disease suffered by an employee or a physical or mental injury (other than a disease) or an aggravation of a physical or mental injury (other than a disease) arising out of, or in the course of, the employee's employment; but the term does not include any such disease, injury or aggravation suffered as a result of failure by the employee to obtain a promotion or benefit in connection with his employment; (c) "disease" is defined in s 4 to mean any ailment or aggravation of such an ailment suffered by an employee, being an ailment or an aggravation that was contributed to in a material degree by the employee's employment;

(d) "ailment" is defined in s 4 of the Act to mean any physical or mental ailment, disorder, defect or morbid condition (whether of sudden or gradual development). The Tribunal, in published reasons, reached the following conclusions: "16. The respondent contended that the legislative provisions are a sufficient blueprint as they talk about ailment, defect, morbid condition and disorder. In other words, they talk about harm which produces measurable symptoms. The Tribunal is of the opinion, however, that the type of work-related stress suffered by the [respondent] although producing no overt signs, constituted a reactive depression no less debilitating than a clinical depression with pathological signs. 18. ¼ It became apparent in the evidence given by [the respondent] that he was unhappy doing menial tasks when what he felt was his area of expertise lay elsewhere. It would be most frustrating to be in such a position. There is no doubt that the conditions at work contributed to the applicant's depressed condition. 20. ¼ The Tribunal was not of the opinion at any stage that [the respondent] was mentally ill or mentally disturbed or suffered from a psychological disorder. In the Tribunal's view he did not fit the diagnostic criteria in any of the diagnostic manual lists of mental or behavioural disorder. Psychological stress does not constitute a disorder which means no more than that there will be cases regarding stress in which psychiatric evidence will not help one way or another. 21. Dr Tym's evidence in the Tribunal's assessment established no more than that there was no label available from the manuals to attach to what he saw and knew of Mr Mooi's overall situation in life, including his situation in his work life and place." The Tribunal at this point turned to the question whether the respondent's reaction to his work-related stress amounted to "an injury" within the meaning of s 14(1) of the Act. It referred to the submissions by the respondent's counsel that the various terms in the definition of "disease" in s 4 of the Act should be given meanings they had in ordinary speech, including a submission that to establish "mental injury", the respondent simply had to show that his mind was damaged or harmed in some way. The Tribunal then said: "23. The [respondent] contends that it does not have to be harm of any particular magnitude as when one looks at the Section as a whole the injury or ailment must be one which results in incapacity for work or impairment. In the [respondent's] submission, therefore, the emphasis should not be placed on how severe the injury is but rather on whether or not it results in impairment or incapacity for work." Having said this, the Tribunal did not go on to expressly find that the respondent's condition was an "injury", but referred to the respondent's reliance on the reports of Dr Tym, a psychiatrist, and Dr Jones, a general practitioner, as support for the contention that he was suffering from an ailment or mental injury and that pressures at work, whether perceived or real, contributed in a material way to his disabled condition. The Tribunal next referred to Dr Jones' report of 8 March 1993 to the appellant and quoted what Dr Jones had to say about the respondent suffering a reactive depression. In paragraph 27 of its reasons, the Tribunal turned to the question whether the respondent's condition resulted in his incapacity for work or impairment of that capacity: it referred, firstly, to the respondent's submission that the doctors' reports showed that he could not work at the Directorate of Aircraft Engineering because of subjective psychological stress at work which gave rise to anxiety symptoms and, secondly, to the submission that the exclusions from the range of compensible injury set out in the definition of "injury" in s 4 of the Act did not apply to the respondent's condition. The Tribunal made no finding or comment on the first of these submissions, although in paragraph 18 of its reasons, the Tribunal had already recorded its conclusion that the respondent's employment had contributed to his depressed condition. In paragraph 28, it expressly accepted the second of those submissions. (It had already, in paragraph 18, dealt with and rejected the appellant's submission to the contrary.) In the final paragraph of its reasons, paragraph 29, the Tribunal simply stated that it would set aside the decision adverse to the respondent and substitute its decision that the respondent was incapacitated for work and was entitled to compensation in an amount to be assessed. It must therefore be taken to have found that the respondent's condition was an "injury" within s 14(1) and that it resulted in his incapacity for work for the period in question. It was not suggested, and I do not consider, that the Tribunal made inconsistent findings when, at one point, it expressed the opinion that the work-related stress suffered by the applicant constituted a reactive depression no less debilitating than a clinical depression with pathological signs and when, at another point, it expressed the opinion that, at no stage, was the respondent mentally ill or mentally disturbed or suffering from a psychological disorder. It is apparent from paragraph 16 of its reasons that the Tribunal accepted what Dr Jones said in his report to the effect that the respondent's work experiences produced in him a condition of reactive depression. It is also apparent from paragraphs 18, 28 and 29 that the Tribunal accepted that this condition impaired his capacity for work. But paragraphs 20 and 21 of the Tribunal's reasons show that the Tribunal also accepted what Dr Tym said both in his reports and in his oral evidence, including what he said about the psychological stress which the respondent suffered not amounting to any form of mental illness or disorder and to their having produced in him reactions that were within the range of normal human responses to distressing events. The Tribunal thus cannot have accepted what Dr Jones said in oral evidence to the effect that the respondent "was suffering from an illness rather than being sad". The Tribunal nevertheless found for the respondent. It seems clear that the Tribunal found that the respondent was entitled to compensation on the basis that, although he was not suffering from any mental illness, mental disturbance or psychological disorder as a result of the work-related stress he was subjected to, the condition that those stresses contributed to produce in him, which the Tribunal described as "psychological stress" and "work-related stress", had an effect on his capacity for work and was still sufficient to amount to an injury within s 14. It is readily understandable why the Tribunal came to this conclusion: it reflected acceptance of the submissions made on behalf of the respondent, repeated in the hearing before me, to the effect that once an employee could show he was in a condition brought about by his employment and that condition impaired his capacity for work, he was entitled to compensation under s 14(1). I do not accept the respondent's submission that s 14(1) is satisfied by proof of a nexus between the employment-caused mental or bodily condition of the employee and the incapacity to work or an impairment of the employee's capacity to work. This submission faces the difficulty that, if well-founded, the Legislature has, in s 4, gone to unnecessary trouble by elaborately defining "injury" as comprising diseases, physical or mental injuries (other than diseases) and aggravations of both kinds of condition: there would be no need for that if s 14(1) makes compensible any condition or circumstance in which an employee finds himself, so long as it arose in the course of his employment and so long as it interferes with his capacity for work. A reading of the Act, including the relevant definitions, in my opinion, shows that before an employee can have any entitlement to compensation under s 14, one of the things he must show is that he has suffered something that can be regarded as an injury or something that can be regarded as a disease. By s 4, the term "injury" means physical or mental injury other than disease, while the term "disease" means any physical or mental ailment, disorder, defect or morbid condition. The expression "ailment" is used in s 4 of the Act as a synonym for the term "disease". It is apparent, from the exhaustive meaning given by s 4 to the term "ailment", and from the ordinary meaning of that word - "a morbid affection of the body or mind; indisposition: a slight ailment" (Macquarie Dictionary) - that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones. There may be difficulties in a particular case in determining whether a bodily condition, ie, one not involving any effect on a person's mental faculties, amounts to a disease; it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion. But these considerations, in my opinion, provide no ground for disregarding the meaning given by the various definition provisions to the term "injury" for the purposes of s 14(1) of the Act. The definition provisions, which bring within the concept of "injury" mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee's mental condition is within the concept of an "injury" within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe. Legislation providing for the committal to care of mentally ill persons generally avoids defining what is meant by the term. Cf Re Magavalis [1983] 1 Qd R 59 at 63 and RAP v AEP [1982] 2 NSWLR 508 at 509-510. Faced with the equally unhelpful English legislation, Lawton LJ, in W v L [1974] 1 QB 711 at 719, said that the statutory expression "mental illness" consists of ordinary English words of no particular medical significance; in order to decide whether a person was mentally ill and thus liable to be kept in protective care under the English mental health legislation, his Lordship said that the right test was to ask whether an ordinary sensible person, aware of the patient's behaviour, would say that he was obviously mentally ill. In his article, "The Meaning of 'Mentally Ill Person' in the Mental Health Act 1958-1965 of New South Wales" (1968) 42 ALJ 207, Mr O V Briscoe, a forensic psychiatrist, referred to the absence of any definition of mental illness in the New South Wales statute and suggested that, for the purposes of that Act, the term was probably intended to have a pragmatic and commonsense meaning. He observed, at 209: "¼ there are varieties of abnormal behaviour and appearance, that most responsible adults from all walks of life can quickly recognise as falling within contemporary conceptions of the province of psychiatry. It is in this general sense that mental illness, it is suggested, is probably intended to be used in this Act." There is good reason for such an approach in the context of mental health legislation, which provides for mentally ill persons to be taken into protective care by laymen such as police officers. But in my opinion, the expressions used in the Safety Rehabilitation and Compensation Act 1988 to define the various forms of mental condition that can amount to "injuries" compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1). Not to require such a feature to be present in the employee's condition would, I think, be to ignore that the Act makes compensible only injuries which are defined to comprise diseases and physical or mental injuries (other than diseases). Elements of the definition of "ailment", the term by which the Act defines "disease", such as "disorder", may, in ordinary speech, be apt to refer to bodily and mental functions not being in their ordinary state, even though no form of illness or disease is present. But it does not follow that because the statute defines an injury as including a disease and that a disease is, in turn, defined to mean an ailment, which is also itself given a particular meaning, a condition not having any of the connotations implied in the word "disease" can be regarded as falling within the definition of "disease". There are numerous examples in recent cases where courts, faced with deciding whether a statutory term applies to the facts of the case, have refused to simply substitute for the term the expression it is given by a definition section, but, in applying the enacting provision and the definition, have had regard to the ordinary connotations of the word so defined. In Claydon v Bradley [1987] 1 WLR 521, a document that fell within the literal words of the statutory definition of promissory note was held nevertheless, not to be such an instrument, because the term "promissory note" had a well-established connotation of an instrument intended to be negotiable. In British Amusement Catering Trades Association v Westminster City Council [1988] 2 WLR 485, the Court held that, although the display of video games fell within the literal words of the definition of a statutory term "cinematograph exhibition", viz, "an exhibition of moving pictures", a video game display was not within a licensing statute applying to cinematograph exhibitions because the term "cinematograph exhibition" connoted a film show. In determining whether a statute applies to particular facts or circumstances, the phrase defining a word in an enacting section of the statute will generally be decisive. But (save when there is the clearest indication in the statute that the word in the enacting section is irrelevant) particular facts or circumstances will only be caught by the statute if they fall with the defining phrase and also within the connotations which the word defined by that phrase has in ordinary speech. "Disease" in ordinary usage, when used with reference to physical or mental conditions, connotes a disturbance of the normal functions. Dictionary meanings of "disease" include "a morbid condition of the body, or of some organ or part; illness; sickness; ailment." (Macquarie Dictionary) and "a condition of the body, or of some part or organ of the body, in which its functions are disturbed or deranged." (Shorter Oxford English Dictionary) Medical dictionaries give the following meanings of "disease": "In general, a departure from the normal state of health. More specifically, a disease is the sum total of the reactions, physical and mental, made by a person to a noxious agent entering his body from without or arising within (such as a micro organism or a poison), an injury, a congenital or hereditary defect, a metabolic disorder, a food deficiency or a degenerative process ¼ Mental disease. Any disease with predominantly mental symptomatology, whether of mental or physical causation." (Butterworths Medical Dictionary, 2nd Ed.) "Any deviation from or interruption of the normal structure or function of any part, organ, or system (or combination thereof) of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology and prognosis may be known or unknown. ¼ mental disease. Any clinically significant behavioural or psychological syndrome characterised by the presence of distressing symptoms or significant impairment of functioning. Mental disorders are assumed to result from some psychological or organic dysfunction of the individual; the concept does not include disturbances that are essentially conflicts between the individual and society (social deviance)." (Dorland's Illustrated Medical Dictionary, 28th Ed.) Only conditions involving a disturbance of the normal functions of body or mind are within the term "disease", as defined, and thus "injuries" for the purposes of s 14(1) of the Act. The respondent referred to the statement in McTiernan J's judgment in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 629: "The Act is primarily concerned to provide compensation for incapacity for work provided it be causally related to employment". The passage continues: "Disease is relevant only so far as it incapacitates, that is only so far as it produces manifestations which cause incapacity. Such manifestations are relevant only so far as they are causally related to employment." These comments were made by Moffitt J in the Full Court, but were approved by McTiernan J. It was the first sentence in this passage upon which the respondent relied. However, it provides no support for the respondent's argument that s 14(1) is satisfied if the employee is in a condition in which he is incapacitated for work and that such a condition will be an "injury" within the meaning of that term in the section, provided only that it is work-related. In Semlitch, the question was whether a new and very debilitating symptom of the plaintiff's longstanding schizophrenia, which symptom developed after a trivial incident at work, was "the aggravation, acceleration, exacerbation or deterioration of any disease" within the meaning of that provision in s 6(1) the New South Wales Workers Compensation Act. The employer argued that, with schizophrenia, the disease was the constant factor and the variation in the delusions it produced could not be said to be within this statutory expression. It was by way of answer to that proposition that McTiernan J expressed agreement with Moffitt J's comments. As the second and third sentences in the passage from Moffitt J's judgment which McTiernan J quoted show, what is relevant in determining whether there has been a work-caused aggravation of a disease are the manifestations of the disease, rather than the disease considered as an entity separate from its various manifestations over time. What the Judge was concerned to dispel was the notion that it was irrelevant to focus on symptoms rather than the underlying longstanding disease itself, when the question was whether those symptoms amounted to an aggravation, acceleration, exacerbation or deterioration of the disease. Without a disease, there could be no aggravation and so no compensible injury within the New South Wales Act: nothing in what Moffitt J said supports the proposition that proof of the existence of a condition identifiable as a disease was unnecessary to show that the worker had suffered "injury" as defined in the New South Wales statute in circumstances which attracted the statutory right of compensation. Counsel for the appellant referred to the legislative history of Commonwealth Workers' Compensation legislation. The Commonwealth Workmen's Compensation Act of 1912 gave an entitlement to compensation only for "personal injury by accident", there being no entitlement to compensation in respect of any disease suffered by the worker. The Commonwealth Employees' Compensation Act of 1930 made provision for compensation in respect of injuries by accident and also, by s 10, in respect of certain diseases specified in the second schedule to the Act. The range of these specified diseases was increased by ss 6 and 13 of the Commonwealth Employees' Compensation Act 1944. The Commonwealth Employees Compensation Act of 1948 further amended the 1930 Act and, by s 5, removed the schedule of specified diseases and substituted a general entitlement to compensation for diseases arising out of the course of employment; the term "disease" was defined by s 2 as including "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development ¼". The term "injury" was defined by s 2 to mean "any physical or mental injury and includes the aggravation, acceleration or recurrence of a pre-existing injury" and, by s 4, provision was made for compensation for work-related injury by accident. The Compensation (Commonwealth Employees) Act of 1971 repeated this definition of "disease", although ss 29 and 30 regulated in a fairly elaborate way the circumstances in which compensation was payable in respect of diseases. By s 27, a right was given to compensation for work-related injury, although compensation was not payable in respect of certain kinds of non-accidental injury. There has been a continuous liberalisation of the requirements to be satisfied by Commonwealth employees to be entitled to worker's compensation. But the need to show something more than the development of a work-caused condition of the body or mind and associated impairment of capacity to work has been an essential requirement since the inception of the legislation: work-caused physical or mental fatigue that impairs an employee's capacity to work is no more compensible than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness. Counsel for the appellant also referred to the decisions on the workers' compensation statutes of a number of the States of the Commonwealth, the most recent being Thazin-Aye v Workcover Authority of NSW (Court of Appeal, unreported, 20 September 1995), which show that a distinction has traditionally been maintained between events occurring in the workplace that produce a physiological or a psychological effect, which can constitute a compensible injury, and events producing only frustration and emotional upset, a non-compensible effect. Such authorities are of little relevance as aids to the construction of s 14 of the 1988 Act, although they do indicate the need for caution before giving s 14 a reading which would obliterate the need for an employee to suffer something which can be described as an injury or illness before he can have a right to compensation. I am satisfied that the Tribunal's decision was erroneous in law in so far as it held that the respondent had suffered an "injury" within the meaning of that term in s 14(1) of the Act: having found that the respondent was not mentally ill or mentally disturbed or suffering from any psychological disorder, it was not open to the Tribunal, on the proper construction of s 14, to hold that the condition the respondent developed in response to conditions in his workplace amounted to an "injury" within s 14(1). This is sufficient to entitle the appellant to an order setting aside the Tribunal's determination and restoring the decision overturned by the Tribunal. However, I will deal with the other grounds upon which the appellant challenged the Tribunal's decision. It was submitted that the Tribunal was not entitled, on the evidence before it, to find that, assuming the respondent had suffered an injury for the purposes of s 14(1), that injury resulted in incapacity for work or impairment of his capacity for work. I reject this submission. There was evidence, eg, from the respondent's supervisor and in the fact of the respondent's continued attendance at work, that suggests that the condition produced in him by the circumstances about which he complained did not affect or impair his capacity for work, if contrary to my view, that condition did amount to an "injury" within s 14(1). But there was evidence from Dr Jones and from Dr Tym the other way. Dr Tym had, in April 1993, given the respondent a medical certificate certifying that, while he was capable of performing his usual type of work and other types of work, he could not work in the position he held at the Directorate of Aircraft Engineering because of subjective psychological stress at that site which gives rise in him to anxiety symptoms. He explained this by saying that, rather than write a certificate saying that the respondent was refusing to go to work "which I think is now my preferred opinion of what was happening on that day", he gave the respondent the benefit of the doubt by saying that his psychological stress might warrant the respondent not actually going there at that time. The Tribunal was not required to accept Dr Tym's explanation for certifying as to the respondent's incapacity. The Tribunal referred to the competing submissions made by the parties on this issue, but found that incapacity did exist. The Tribunal did not make any error of law in concluding, in this state of the evidence, that it was satisfied that incapacity was made out. The remaining challenge to the Tribunal's decision was to its rejection of the argument that none of the problems which the respondent identified as those which resulted in the condition for which he claimed compensation were individually capable of being connected, in a causal sense, with his employment. The definition of "injury" in the Act denies to a disease any relevance to a right to compensation, if it is a disease which results from "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". The appellant argued that even if the respondent's condition did amount to a disease in the sense of a mental ailment or disorder, it was the result of this sort of event. The respondent complained of his skills and capacities not being fully utilised by his employer. As I understand it, there is no suggestion that the respondent did not have the opportunity to perform the range of duties allocated to his position, but rather that he was not given the opportunity to demonstrate his fitness for, and so was not offered, a better paid position than that in which he was employed. The respondent also complained about the lack of training given to him. But this, too, appears not to have been a complaint that he was denied training necessary to enable him to perform the duties of his position, but rather that he was deprived of the opportunity of training that would have fitted him for a higher position. His third complaint was the refusal of his supervisors to approve his application for payment of a higher duties allowance. If the respondent did suffer from what could be called a "disease" and if that resulted from these three factors, that disease seems to me to fall within the description of a disease resulting from "failure by the employee to obtain a promotion ¼ or benefit in connection with his ¼ employment" within the meaning of that expression in the definition of "injury" in the Act. In so far as any one of these three factors may have contributed to the condition he contends is a compensible injury, the statute requires them to be ignored. If there are only three circumstances of an employee's employment that can have led to his debilitated condition and each one of them is an event of the kind covered by this exclusionary provision, it would not, I think, be open to the Tribunal to say that, while it is not permitted to take into account each individual factor in determining whether the applicant for compensation has suffered an injury contributed to by his employment, it can still have regard to the concatenation of those three circumstances. But the respondent's case was that there was a fourth factor that contributed, with the other three, to bring him to the condition for which he sought compensation. He referred to his uncertainty about the security of this employment. It was submitted that, in so far as it may have led to him suffering any injury, this circumstance could not enable that injury to be characterised as one arising out of or in the course of his employment. Federal Broom Co Pty Ltd v Semlitch, supra, at 632-633 and 641 is authority that it is not enough for the employee to show that if he had not been employed at all, he would not have suffered that injury or disease. Windeyer J, at 641, said: "¼ was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor, it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed." I am not at all sure that if a worker is employed in circumstances in which his employer allows a state of uncertainty to exist as to whether the worker's employment, which is longstanding or which the worker can fairly regard as permanent, might nevertheless be terminated and if the employee develops a mental illness as a result of that uncertainty, that illness could not be said to have been "contributed to in a material degree by the employee's employment". Even if the Tribunal was in error in having regard to the other three factors on which the respondent relied, it may well have been entitled to find that the uncertainty to which the applicant was exposed was capable, by itself, of amounting to the circumstance of his employment that contributed to the condition in respect of which the respondent claimed compensation. If that were the only error in the Tribunal's decision, it would therefore be appropriate to remit the matter for further consideration. But since the Tribunal was not entitled, on the findings it made, to conclude that the respondent could make out one of the essential elements of his claim, viz, that he had suffered something which can be described as "an injury" within the meaning of that term in s 14, the appeal must be allowed. The decision of the Tribunal the subject of this appeal is set aside and the decision of the Internal Review Officer of 6 July 1993 affirming the decision of the Department of Defence of 19 February 1993 is restored. The appellant is entitled to its costs of and incidental to this appeal. [DW1] I certify that this and the preceding 19 pages are a true copy of the reasons for judgment of the Honourable Justice Drummond. Associate: Date: 26 June 1996

Counsel for the applicant: P.A. Keane QC with E. Ford and M. O'Gorman Solicitor for the applicant: Australian Government Solicitor Counsel for the respondent: K.T. McCreanor Solicitor for the respondent: Gayler, Cleland & Towne Date of Hearing: 20 June 1996 [DW1]CHECK THAT THE REASONS ARE IN DOUBLE LINE SPACING.