Moore-McQuillan v Workcover/Royal & Sun Alliance

4 On 24 February 1999 WorkCover Corporation's claim's agent, Royal and Sun Alliance ("the claims agent") wrote to the worker advising that it was looking at whether it was appropriate to assess his loss of future earning capacity as a capital loss pursuant to s 42A of the Workers Rehabilitation and Compensation Act 1986 ("the Act"). In order that it could make this assessment the claims agent required the worker to furnish within 28 days detailed information relating to his earnings as set out in a two page document headed "Request for Information".

5 On 12 April 1999 the claim's agent sent by registered mail a follow-up letter to the worker in the following terms:-

"We refer to our letter of 24 February 1999 and note that you have not responded to us.

If there is no meaningful written response to our letter of 24 February 1999 and to the Request for Information enclosed with that letter within 14 days of the date you receive this letter, we will proceed to suspend weekly payments being made to you pursuant to s 42B(2)(a) of the Workers Rehabilitation and Compensation Act ("the Act").

As a consequence we urge you to respond to us in writing within 14 days of the date you receive this letter. As per previous practice, two copies of this letter will be sent, one by ordinary post and one by registered mail."

6 The worker contends that he did respond to these requests for information and I will deal with his evidence in relation to this in due course. He acknowledges that he did not provide the requested information. It was and remains his contention that he could not lawfully be required to do this.

7 On 1 December 1999 the claims agent acted on the worker's failure to furnish information by determining to suspend his weekly payments. On 3 December 1999 the worker lodged a Notice of Dispute in the following terms:-

I had responded to all lawful request made from WorkCover on 24/2/99 and 12/4/99. I have lodged a dispute with documentation around April 1999.

On Monday 29 November I was told by Ron Cox of Royal Sun that as I am on Workcover he has the right to play games with me and it was his duty to harass AND STRESS ME TILL I SIGNED OFF THE SYSTEM. M Duncan after being advised by Mr Rice and Mr Rydon to refuse any correspondence with that he and me was not to give anything in writing.

I have complied with all requirements of section 42B(1) and I do dispute the suspension of my benefits from 6/12/99. I do believe that I was entitled to one month from the time of the decision, I received this decision at 3.00 pm Friday 3 December 1999 stating that my pay would be suspended on Monday 6th December 1999.

It is obvious that Royal Sun are continuing harassment and threats and that this decision should be thrown out as frivolous and vexatious."

8 The lodgement of this Notice of Dispute preserved the continuance of weekly payments. The dispute thus generated over the worker's failure to furnish the requested information is the subject of Action 6926 of1999.

9 In the meantime, by letter dated 22 October 1999, the claims agent gave notice to the worker of its intention to review his entitlement to weekly payments pursuant to s 38 of the Act. After setting out its intended course of proceeding, the claims agent invited the worker to forward any written representation he may wish on the subject of the review. This was to be done within 28 days. The worker did not forward any written representations in response to this invitation.

10 Under cover of letter dated 1 December 1999 the claims agent forwarded to the worker its determination pursuant to s 38(7) of the Act. The determination was to the effect that the worker's weekly payments would be reduced from $1244.58 to $220.70 per week. The basis for this reduction was detailed as hereunder:-

1. You are presently in receipt of weekly payments of income maintenance in respect of a left knee strain sustained on 9/9/90.

2. You have been incapacitated for work for a period exceeding two years.

3. By Notice dated 22/10/1999 you were advised of a pending review of your weekly payments and the evidence relating to it.

4. However, you have admitted performing diving work to assist a friend in the course of proceedings in the Supreme Court of South Australia.

5. We have not received any submission from you on the matter.

6. In light of the apparent inconsistency between what you have assert and your admission of performing diving work, we are satisfied that you are capable of performing work as either a diver, or as a diving supervisor or as a diving instructor.

7. The Corporation is of the view that you are capable of earning $968.71 gross per week from employment of the relevant kind namely as a diving supervisor pursuant to the Ports Corp South Australian Enterprise Bargaining Agreement, 1997 - 2000 pursuant to Schedule 1 Classification Salaried Employees as a diving supervisor earning $50372.80 gross per annum as a diving supervisor and that is the precise basis of the proposed reduction. In the alternative it is proposed to reduce weekly payments of income maintenance to you on the basis that you be treated as a diver pursuant to the Ports Corp South Australia Enterprise Agreement 1997 - 2000. In the further alternative, it is proposed to reduce weekly payments based on what you are capable of earning as a diving instructor.

8. On the basis of the information at present held by the Corporation and the facts described above, the Corporation proposes to make a determination which refers to s 35(2) of the Act that your entitlement to weekly payments of compensation will decrease to an amount of $220.70 gross per week. This amount will represent 80 percent of the difference between your notional weekly earnings and the amount you are capable of earning in employment of the relevant kind. Annexed hereto is a copy of the provisions of s 35(2) of the Act. ..."

11 By Notice of Dispute filed on 3 December 1999 the worker disputed this determination:-

On Monday 29 November I was told by Ron Cox of Royal Sun that as I am on Workcover he has the right to play games with me and it was his duty to harass AND STRESS ME TILL I SIGNED OFF THE SYSTEM. M Duncan after being advised by Mr Rice and Mr Rydon to refuse any correspondence with me and that he was not to give anything in writing.

I have complied with all requirements of section 38 and I do dispute the decision totally.

I did not admit at any time in the Supreme Court that I was performing work as a diver or dive instructor and that I was earning an income or capable of earning an income from diving as outlined at point 6 letter 1/12/99.

I did contact Ports Corp about the requirements of being covered by the agreement and was told that I do not meet the requirements. I also was told by the Sports Med Clinic at South Terrace Adelaide I still could not pass the diving medical which is a prerequisite for this type of diving. I also spoke to Derrick Craig (diving matters) of the Industrial Affairs who told me my qualifications were not anywhere near the qualifications needed for the positions outlined at point 6.

I do know that at my request these people did contact Royal Sun Alliance and informed them why I could not do the positions outlined in point 6. I also gave written submissions to Royal Sun but was told by M Duncan that it was out of his hands as it was an order from F Morris, Rydon and Rice. I asked for this in writing but was told I he was also instructed to give nothing in writing to me at all.

The amount quoted at point 7 letter 1/12/99 is not correct and that the amount should be $51364 pa. Derrick Craig advised me that I should be receiving this rate even if I cannot do the position if WorkCover have deemed this Award as being applicable to me under section 39 of the Act. I did ask M Duncan why this did not happen and he read out the section but his copy had the words Award and Enterprising Agreement omitted. When I pointed this out he said it was the way they do their business.

Mr Rice and Mr Rydon both gave undertakings in the Supreme Court that they would not harass or cause stress towards myself but have ordered this action against that undertaking.

It is obvious that Royal Sun are continuing harassment and threats and that this decision should be thrown out as frivolous and vexatious."

12 This dispute is the subject matter of Action 7089 of 1999.

13 The worker said that he did not ignore the claims agent's letters of 24 February 1999 and 12 April 1999. A copy of a fax he sent to Deputy President Gilchrist on or about 24 March 1999 was received into evidence as Exhibit A5. It seems that Deputy President Gilchrist had the conduct of a number of the disputes between the parties at that time. In this fax the worker asserted, inter alia, that he had sought advice from the Taxation Department and had been told that he was not obliged to provide to the claims agent or to the Corporation his taxation returns or other tax details. The worker has since then consistently put this forward as a basis for him not providing the requested information.

14 In this same fax the worker also asserted that he had offered to "give you a report from my accountant with the relevant information but you are to pay for the report and you have refused to do so on more than five occasions. I will not incur an expense just for you". It is clear from the fax that the reference to "you" is a reference to the Corporation. The worker has not subsequently put this forward as a ground for him not providing the requested information, but has rather asserted that he "approached his accountant who also stated the same position as the Taxation Commissioner".

15 The worker's fax of 24 March 1999 also referred to his concerns of confidentiality and the fact that there was no certainty that the Corporation would proceed with a LOEC (s 42A) assessment anyway.

16 Following receipt of the claims agent's second request for information dated 12 April 1999 the worker on 27 April 1999 sent a fax to his case manager at Royal Sun, Mr Duncan, with a copy to Deputy President Gilchrist. This fax asserted, inter alia, "I have responded to your LOEC requests on the 24-3-99 and a copy was sent to the WCT and DP Gilchrist. If you did not mismanage my claim you would know this." The worker also tendered an undated fax that he said he sent to Deputy President Gilchrist about this time, requesting that Deputy President Gilchrist "Please give me a ring" regarding, inter alia, the claims agent's "letter 12 April 1999 re LOEC".

17 The worker's Notice of Dispute lodged on 3 December 1999 asserted that he had "lodged a dispute with documentation around April 1999." There is on the file a copy of a Notice of Dispute signed by the worker and dated 3 May 1999. It does not bear any receipt stamp of the Tribunal and appears not to have initiated a formal dispute in the Tribunal. It seems very likely that this document is the earlier "dispute" lodged by the worker "around April 1999" and for completeness I record the worker's assertions made therein:

"1. On 3-5-99 I was informed by Joe (second in charge) Royal Sun Alliance verbally that my benefits have been cancelled because I did not respond to a letter from them.

2. I did respond to this letter and a copy was sent to DP Gilchrist at the end of March.

3. I want my benefits reinstated as I have complied with their request.

4. If this is to go to a JD then it be held up till I am well enough to attend and have recovered from the stress Royal Sun and WorkCover have given me with the excess surveillance and harassment."

18 It is not clear from the evidence if weekly payments were suspended at the end of April 1999 or if not, as I suspect was the case, on what basis they were continued. It seems likely that the worker's fax of 27 April 1999 and/or his Notice of Dispute dated 3 May 1999 may have led to the continuation of his payments at that time.

19 The worker testified that following receipt of the claims agent's first letter of 24 February 1999 he rang his case manager, Mr Duncan, to query what it was all about. He said that he told Duncan then that he thought that LOEC's had been outlawed or set aside or were not being issued any more. He said that he also told Duncan about his conversations in mid-1994 with the Corporation's Stan Coulter wherein Coulter had told him that a LOEC assessment could not be made without his consent. He said that he asked Duncan why he needed to comply with his request for information if it was the case that he (the worker) was not interested in going for a LOEC assessment.

20 The worker said that he told Duncan that if he (Duncan) considered that the Corporation was otherwise entitled to the information requested, then he (Duncan) should show him the authority for that. The worker said that Duncan responded that he would provide that authority but never did.

21 The worker said that Duncan's response on the LOEC issue and to the worker's recitation of his previous discussions with Mr Coulter was as follows:-

"Look, it has got nothing to do with me really, it is only a lawyer's thing. It is out of our hands. It has got nothing to do with Royal Sun Alliance. It's a WorkCover matter and the lawyers."

22 The worker also testified that on another occasion he came into town and "had cup of coffee with Mike Duncan about it".

23 The worker said that because he could not get satisfaction from Duncan he tried to speak to the Corporation's solicitors about the matter, but that the solicitor concerned was unwilling to take his call.

24 Several documents were tendered by the worker, including excerpts from Hansard on 11 April 1996 (Exhibit A11), extracts from the Corporation's Rehabilitation Manual, IM Help, Version 9 (Exhibit A12) and a copy of a Corporation document dated 4 October 1995 purporting to show the number of workers assessed pursuant to s 42A over the period 1987 - 1995 (Exhibit A13). The effect of all of these documents was to indicate that new LOEC (s 42A) assessments ceased in 1995 and that since then it has been the Corporation's policy and its direction to its claims agents not to issue any new LOEC assessments.

25 The Corporation did not call any evidence to rebut this inference raised by the aforesaid documents and by the worker's testimony. I am satisfied on the evidence and find that as at February 1999 when the first of the claims agent's letters was sent to the worker it was the Corporation's policy and its direction to its claims agents not to issue new LOEC assessments. I did not understand Mr Downs to be asserting differently, but rather that the Corporation's policy position was irrelevant.

26 I am not persuaded on the evidence that the worker was in early 1999 aware of the Corporation's policy regarding LOEC assessments or that he sought to justify his stand on the non-provision of information then on this basis. It is not mentioned in any of his correspondence with the claims agent and Deputy President Gilchrist, nor in either of his Notices of Dispute dated 3 May 1999 and 3 December 1999. I think it is unlikely that he would not have made mention of it had he been aware of it then. I do not accept that he raised this issue with Mr Duncan by telephone.

27 The worker nevertheless now contends that s 42B is inextricably tied to s 42A and can only legitimately be used to gather information for the purposes of s 42A. That being so, given that it was the Corporation's policy not to use s 42A to issue new LOEC assessments, s 42B could not be used in the way that it was. I think there is merit in the worker's contention.

"(1) For the purposes of this Division, the Corporation may, by notice in writing to the worker -

(a) require the worker to submit to an examination by a medical expert nominated by the Corporation; or

(b) require the worker to furnish such information, relevant to the operation of this Division, as the Corporation thinks fit.

(2) If a worker fails to comply with a requirement under subsection (1) within the time allowed in the notice, the Corporation may -

(a) if no compensation has been paid under this Division - suspend any weekly payments being made to the worker;

(b) if compensation has been paid under this Division - determine not to pay compensation in respect of the period of default ..."

29 It is clear from the wording used that the powers given to the Corporation under s 42B are to be exercised for the purposes of the Corporation's exercise of its powers under s 42A, viz to assess a worker's loss of earning capacity as a capital loss.

30 If, as I have found, it was the Corporation's policy and its direction to its claims agents as at February 1999, and indeed for some years before and continuing since, not to issue any new LOEC assessments, the worker might well be justified in thinking that he had been singled out for differential treatment.

31 The Corporation's role in administering the Act requires it to consult more than only its own interests. It must act fairly and in an even-handed way that takes into account the rights, entitlements and interests of all interested parties including the worker.

32 In Robbins v Harbord and Anor [1994] SASC 4571; (1994) 62 SASR 229 at 236 King CJ described the role of the Corporation/exempt employer thus:-

"The Corporation or the exempt employer, as the case may be, is necessarily a party to a review or appeal. A consideration of the provisions to which I have referred above, however, makes clear that they are not ordinary parties to litigation. The decision by the Corporation or exempt employer in relation to a claim is not simply a decision by a private personal corporation against whom a claim is made whether or not to admit or deny liability. It is a decision made in pursuance of a statutory function. The function of the exempt employer is not distinguished from that of the Corporation. Both have the statutory function of investigating and determining claims for compensation. Neither is entitled in determining claims simply to consult its own interests. There must be proper grounds of rejection of a claim and they must be notified to the claimant. It follows, in my opinion, that the Corporation or exempt employer are not parties to a review or appeal in the ordinary role of litigant but as primary decision makers defending their primary decision against the person affected by the decision (s 95)."

33 The learned Chief Justice's remarks are, in my view, equally applicable whether the Corporation is determining to accept or reject a claim or, as here, determining to exercise its power to request information pursuant to s 42B(1)(b) or its power to suspend weekly payments pursuant to s 42B(2)(a).

34 It may well be that the Corporation had cause to be suspicious about the worker's business activities and/or earnings, but in my view that could not justify it using the powers given to it by s 42B other than for the purposes of s 42A. No evidence was led from the Corporation to suggest that the information sought from the worker was genuinely required by it for the purposes of either making an assessment pursuant to s 42A or determining whether or not to make such an assessment. For the Corporation to have been contemplating an assessment pursuant to s 42A, on the evidence put before me the worker would have had to have been treated as an exception to its policy that dictated no new LOEC assessments.

35 On the evidence put before me I am not satisfied that the claims agent's requests for information from the worker were genuine requests for the purposes of enabling the Corporation either to make an assessment or to determine whether or not to make an assessment pursuant to s 42A. In any event, I am of the view that the Corporation's pursuit of this course was not in all the circumstances fair or reasonable or a proper exercise of its obligation to administer the Act in an even-handed way.

36 I set aside the Corporation's determination of 1 December 1999.

37 The Corporation's determination asserts that the worker is capable of working as either a diver, a diving supervisor or a diving instructor. Much of the evidence adduced by the Corporation was directed at showing that the worker was in fact performing scuba diving instruction work similar to that which he had been doing pre-injury. This evidence was in the form of many hours of video taped surveillance taken over a period of time from late 1998 to early 2000, the testimony of investigation agents and the testimony of orthopaedic surgeons Mr Moss and Mr Fry.

38 The testimony and video evidence of the investigation agents was, to say the least, very damaging to the worker's contention that he has been and remains incapacitated for scuba diving and diving instruction of the sort that he engaged in pre-injury, and to his contention that he has an ongoing disability of consequence in relation to these activities. It was also seriously damaging to his credibility.

39 The worker sought to have this evidence excluded on the grounds that it had been illegally obtained. Various arguments put forward by him included:-

(a) that no authority had been issued by the Corporation under s 110 of the Act to enable surveillance of him.

(b) that the surveillance was conducted in breach of undertakings made by the Corporation and/or its agents that there would be no surveillance.

(c) that the deployment of the agent Rorie under the guise of being a diving student meant that all of the observations had been obtained by entrapment and should be excluded on that basis.

(d) that all of the agents had committed the offence of stalking the worker in breach of s 19AA of the Criminal Law Consolidation Act 1935.

40 I allowed the evidence in, having satisfied myself as to its authenticity and relevance to the disputed issue of the worker's capacity to work as a diving instructor.

41 The evidence does not enable me to determine whether the agents involved here were formally appointed "authorised officers" for the purposes of exercising the powers of entry and inspection authorised by s 110 of the Act. However, such formal appointment was in any event not necessary to enable them to conduct legitimate surveillance of the worker. I am satisfied on the evidence that the agents were acting on the instructions of the Corporation.

42 No reliable evidence was adduced by the worker in support of his assertion that the Corporation and/or its agents had undertaken to desist from surveillance of him and in the absence of such evidence such a finding cannot be made. During the course of the hearing the worker made many assertions of impropriety against the Corporation and others perceived by him to be acting or saying anything contrary to his interests. These assertions were not supported by evidence of any sort.

43 The worker's position with respect to the witness Rorie is interesting. It was in fact the worker, and not the Corporation, who requested that Rorie be subpoened to attend and give evidence. The worker did this, he said, because he regarded Rorie's evidence as important to the Tribunal. It seems to have been the worker's perception that it was necessary to expose Rorie's role as an agent in order for him to argue for the exclusion of the damaging surveillance evidence on the basis of the worker's understanding of the law relating to entrapment.

44 Having secured Rorie's attendance, however, the worker was then faced with the problem of explaining Rorie's first-hand testimony with respect to the worker's diving and other activities over a long period of time. To counter this, the worker said that he had known from the outset that Rorie was an agent and that he had made a point of deliberately doing things, had in fact forced himself to do things that he would not normally have done in order to "piss him (Rorie) off and get him out of the way". The worker maintained this position with respect to his awareness of Rorie's role as an agent throughout the ten day hearing.

45 It is difficult, to say the least, to understand how the worker could have hoped to have got rid of Rorie by continuing to provide him with the very access, insight and information that Rorie was seeking. The worker could offer no explanation, nor any plausible explanation as to why he continued his close relationship with Rorie over such a long time.

46 It is risable to contemplate that the worker, given his avowed distaste of the surveillance and other investigation of his activities, would have knowingly allowed Rorie the agent onto his property much less have befriended him, socialised with him, spent time diving and fishing with him, allowed him unsupervised entry and access to his house, invited him to his fortieth birthday party and allowed him to video the worker thereat, trusted him with aspects of his diving business and confided in him in the manner attested by Rorie.

47 It is equally beyond belief that the worker would have "done things that he would not normally have done" in Rorie's presence if he had known Rorie was an agent. Bizarre as this assertion is, I can only surmise that the worker saw it as a means of trying to account for his activities as observed and recorded by Rorie and the other agents.

48 The evidence suggests that the worker was well aware of the potential damage that could be done by this evidence:-

"McCOUAIG: We're not talking about that, we are talking about tapes. I understand you to be objecting to the admission of tapes.

MR MOORE-McQUILLAN: I'm objecting to the fact that their whole surveillance was done to excessiveness for three years. I'm objecting to the fact that this person - even though they are going to paint a real nice pretty picture of what we can do and what we can't do and what can happen and what can't happen, these lying pieces of shit here that you call friends, your mates, have conducted illegal activities. Now surveillance is one thing that was done legally but it hasn't been done legally."

49 I disbelieve the worker's claim that he was aware of Rorie's role as an investigation agent. It is patently clear that he was taken in by Rorie's pretext of being, initially, simply someone seeking diving instruction. It follows that I reject the worker's implausible assertion that his activities as observed and reported by Rorie and the other agents over a long period represented more than he would normally have done.

50 I also reject the worker's assertion that Rorie induced him to engage in activities and do things that he would not have otherwise have done. It is clear from the evidence and my assessment of the worker that neither Rorie nor anyone else could have persuaded him to do anything he did not want to. That aside, the evidence shows that the worker initially saw Rorie as just another diver seeking instruction, a means for him to make some money. There cannot be any unfairness to the worker in the disclosure of his activities relating to his instruction of Rorie and other divers given the relevance of this evidence to the issues before me.

51 As for the worker's allegation of stalking, clearly the intention of the investigation agents was to carry out surveillance of the worker's activities undetected and not to cause serious physical and mental harm to the worker or to cause him serious apprehension of fear. They did not stalk the worker within the meaning of s 19AA of the Criminal Law Consolidation Act 1935.

52 The surveillance evidence was not illegally obtained. In any event, there is no rule of evidence that renders unlawfully obtained evidence inadmissible. Moreover, the Tribunal is not bound by the rules of evidence but may inform itself in any way it considers appropriate: s 84.

53 The witness Rorie said that he first contacted the worker in mid-November 1998, ringing the number by which the worker then (and still) advertised his diving business in the Yellow Pages of the telephone book. Page 645 of the current Yellow Pages was tendered showing "McQ Diving" of 8 Baanga Road Morphett Vale, the worker's home address, advertised under two headings, "Divers - Recreational" and "Diving Equipment and Supplies". Rorie said that in the course of arranging a meeting next day with the worker, the worker told him that he was in fact about to start a diving course with another Englishman.

54 Rorie said that when he met the worker at the worker's home on the following day he also met this Englishman, one Paul Meads. The worker discussed with them their proposed courses. Rorie said that he paid a deposit of $50 and a receipt for this signed by the worker was received into evidence as part of Exhibit R38A. Receipts signed by the worker were also tendered relating to further payments by Rorie of $200 on 25 November 1998 and $250 on 28 December 1998.

55 Rorie said that at this first meeting with the worker he was present when Meads paid $350 to the worker for his courses and was given a receipt for same by the worker. The worker disputed Rorie's presence, but did not deny payment to him by Meads.

56 Rorie said that between mid-November 1998 and 6 January 1999 he received instruction from the worker in open water, advanced open water, rescue and divemaster courses. He said that other students also participated in some of these courses, including Meads and one Richard Holmes. Rorie's contemporaneous notes record Holmes participating in dives under the worker's instruction in order to upgrade his diving qualifications. According to Rorie, Holmes told him that he had achieved his qualifications in openwater and advanced openwater from the worker in 1996 and that there had been other people taught by the worker at that time.

57 Rorie testified that the programme he undertook with the worker was intense and that he saw the worker up to five days per week and spent variable hours up to 16 hours per day with him. He said that over this period of about six weeks he dived on more than 30 occasions, of which more than half were with the worker as his instructor. These included openwater dives at various locations, some deep dives, some shallow dives around jetties, some from the worker's boat many kilometres out at sea. On some days more than one dive was undertaken, and on some days a day time dive was followed by a night dive.

58 Rorie said that after he qualified as a Dive Master in early January 1999 he continued to dive with the worker and also accompanied and assisted him on a number of occasions when the worker provided diving instruction to others, including divemaster students.

59 Rorie said that he witnessed the payment of monies to the worker for this instruction. The worker did not deny that he received payments from students.

60 Rorie acknowledged assisting the worker with rescue and divemaster courses conducted by the worker at Port Lincoln in March 1999. He said that the students were charged by the worker $340 for the rescue course and $525 for the divemaster course. There were, he said, five students on the former course and six students on the latter. He denied the worker's assertion that he had himself been paid "$80 to $90 per student" and in any event a total of $450 for his assistance with the five students doing the rescue course, and he denied the worker's assertion that he had been paid $200 per student and a total of $1200 for the six students doing the divemaster course.

61 The worker did not dispute the course fees asserted by Rorie to have been charged by the worker.

62 Rorie said that the worker told him that he, the worker, was looking for employment by one Mark Seddon of Divers Service on Grange Road as either a course director or a master diver, and that the worker had tried to get him to agree to also work for Seddon once qualified as a Dive Master.

63 Rorie said that on many occasions he accompanied the worker and other divers out to sea in the worker's cabin-cruiser and there observed first hand the worker conducting his diving instruction. He said that they would spend up to eight hours at sea, but:-

"A We'd generally come in and then go out again. If we were doing two or more dives a day we'd usually spend say, four or five hours at sea and then the third dive would be a night dive."

64 Rorie said that on other occasions he accompanied the worker on recreational deep dives from the worker's boat at sea. The worker denied this:- "... I have never, ever dived with you on a recreational level".

65 The video tapes received into evidence provide corroboration of Rorie's testimony with respect to the worker's training of students and with respect to six diving trips in the worker's boat after the completion of Rorie's training in January 1999. Explaining the video evidence of him wearing his wet suit on the boat, the worker said that he wore a wet suit to allow him to float should the boat sink. This was not only contradicted by Rorie's evidence of the worker's diving, but by the worker's own later admissions to having dived on these outings.

66 Rorie gave evidence of an incident on 21 January 1999 arising out of the omission of a diving course student named Nicole to cap a regulator set. This had allowed water to enter the pressure gauge hose and cause the plunger pin to seize. Rorie said that as the worker had attempted to pull the plunger pin out with his teeth a piece of his front tooth had chipped off. The worker had sought immediate dental treatment.

67 A letter from the worker's dentist, Dr van der Linden, relating to this treatment was received into evidence as Exhibit A21, as was a Notice of Work Related Injury completed by the worker on 12 February 1999 (Exhibit R39). This Notice records that the tooth had been chipped by "hitting the ground" after the worker's knee had given way whilst walking at home.

68 The worker acknowledged that the injury to his tooth on 21 January 1999 had occurred as described by Rorie and not as described in the Notice of Work Related Injury, but he denied that the handwriting and signature on the document was his. He could not account for the document and asserted that it must be a forgery. I reject this. A comparison of this document with other documents acknowledged by the worker to be his satisfies me that it is his writing and signature on the document.

69 The worker maintained that he did not make a claim for compensation in respect of his chipped tooth on 21 January 1999. On 8 April 1999 the claims agent wrote to the worker advising him that his claim for his "chipped tooth which you claim occurred on 21.1.99" was rejected on the ground that the claims agent was not satisfied that it had arisen out of employment. The worker acknowledged sending a fax to Deputy President Gilchrist soon after receiving this letter in which fax he referred to his "chipped tooth occurred from knee giving way". I find that the worker was, at least in the early months of 1999, seeking to falsely misrepresent the circumstances of his injury on 21 January 1999 as being compensable.

70 Rorie said that the worker recorded details of his diving instruction courses and income and expenses in relation thereto on his computer. He spoke of the worker instructing divers overseas, specifically one in Ireland and one in Holland, via the internet. Rorie's knowledge of these things came, he said, from his direct observations in the worker's home and from what the worker himself told him. Responding to the worker's assertion that he did not know what was in the worker's computer, Rorie said at tr 618:-

"A Again your - again Mr McQuillan, you know full well that we had a discussion in regards to how you were putting your things on the computer and you even said that as a Diver Master I could still write my stuff off because I was speaking to him in the context of how and how much could be written off was tax deductable, and Mr McQuillan actually showed me the spread sheet and was filling it in at the time, and it was on a return from one of the trips to Port Lincoln and he was actually putting in his vehicle details and how much fuel he had spent, how much petrol had cost him, how much the air had cost him, how much his food had cost him, and it was all being calculated on a spread sheet, your Honour, in relation to his taxable income and his tax write-offs."

71 Rorie affirmed the accuracy of his contemporaneously made note of 21 April 1999 which reads:-

"We continued to talk. I then asked McQuillan directly about tax as I was still having problems. McQuillan stated that WorkCover were trying to get his tax files and this would ruin him. I asked for the name of his accountant. McQuillan stated it was Wolfgang Remeljej and Associates which is at 75 Henley Beach Road, Henley Beach phone 8 3563374. McQuillan then stated that he hadn't paid tax for over five years but that if I was planning on doing any cash work not to tell Wolfgang as he really frowns on that because it's illegal. McQuillan stated that WorkCover would love his tax files. I asked why they couldn't subpoena them. McQuillan stated they haven't and they can't. This conversation was directed at myself but was held in the presence and hearing of Karen."

72 Rorie's contemporaneously made notes record the worker's complaints to him, Rorie, that he was unable to arrange his diving classes because of all the court proceedings that WorkCover tied him down with.

73 Rorie attested to seeing an "enormous amount" of diving equipment kept by the worker in a room in his house designated the Dive Room. He said that the worker had told him in December 1998 that this gear was worth over $30000. In his evidence the worker was reluctant to give a monetary figure, but suggested $30000 to $50000. He acknowledged that he had 10 sets of diving gear for use by students. He said that he had bought a wet suit in 1997 for $800, and a further six wet suits since 1998 at prices in the region of $250. He acknowledged that when the equipment was not being used by students it was available for hire out to others wanting to dive. The worker said that he had also bought about six pair of fins since September 1998 at prices ranging between $20 and $200. Asked why he had outlaid so much money on keeping his gear updated and in good order, the worker said:-

"A Just to keep myself concurrent and keep myself up to date, so that if I ever went off the system tomorrow I still had a full set of - 10 sets of gear like I had when I first started. When I first got injured I had 10 sets of gear. ...

Q Yes, I can understand why you purchased them at that price, but for what purpose did you purchase them.

A Well, I just said they - just for diving. That's all.

A For whomever comes along. If I have to run a dive course I've got 10 sets of gear."

74 Rorie said that the worker used a diary to record details of his diving instruction courses. Before me, on 4 July 2000, the worker acknowledged that this was so and that his diaries would provide "exact answers" to questions regarding his training of divers. Before me in December 2000 the worker acknowledged that his diaries recorded every call made to him and where he was and what he did every day. He openly used his diaries to date his diving courses and other events whilst questioning Rorie.

75 In the course of the hearing Mr Downs repeatedly called for the production of the worker's diaries. Notwithstanding my intimation that the diaries appeared to be relevant discoverable documents, the worker stoutly resisted their production or examination by Mr Downs or myself. This was put on the basis that they were his own personal records and contained "confidential stuff, including the names, phone numbers and addresses of people", which in his view did not really need to be brought up:-

"MR MOORE-McQUILLAN: There is no way in the world I would ever give you, anybody, those diaries, because the simple fact is that if I give you the diaries, then it gives this person here a list of names, phone numbers and addresses that he can tender. You can say we can black them out but we can't.

McCOUAIG DP: That is not so, Mr Moore-McQuillan. You have clearly used those diaries ...

MR MOORE-McQUILLAN: Well, I'm not bringing them in. I can assure you I will not be bringing them in and I'd rather burn them before I give them up like that, because there is too much confidential stuff in there that does not need to be brought into this Tribunal and the only thing I do for it is to check the day and see where I was; that's all I've been using it for and it's all I have done for. But if we are going to hand in - there's phone calls, there's mentioned ...

McCOUAIG DP That might be very good reason why they're of relevance."

76 Rorie said that all of the worker's dives were or should have been recorded in the worker's dive log book and that production of this log book would show how many, where and with what students the worker had dived. The worker's dive log book was not forthcoming. When initially asked about the production of his dive log book on 14 December 2000 the worker said that he had given up recording in it. When further asked about his recording of his dives since 1998, the worker said that he "... only recorded the courses - the training at the end". Clearly this would be very relevant information. When giving his evidence a few weeks later in January the worker revealed a further difficulty with his dive log book that he had not mentioned in December:-

"A Well, for a start, not having - the problem that makes this a little bit more difficult is the fact that my dive log books - my dive log book and my dive student folder have been removed from my place, which means that - if I had them I could actually turn around and say `This is what I was doing' because I had it all recorded. They have been removed, quite a while ago and the exact date - be over 12 months - and Rorie was around when they were removed. They had been removed, and that's a pain because it's a real bitch because you can't refer back to something, go, `That's the date, this is what we did, this is what happened here'."

77 I have no doubt that the worker's claim to have lost access to his dive log book and dive student folders was a complete fabrication. The worker's unsubstantiated assertion aside, there is no evidence before me to support his claim that these documents, and also his computer records, were stolen from his home.

78 The worker could in any event have made available his diaries had he been prepared to. He could also have assisted by permitting the obtaining of his student and course details from PADI and/or his accountant. The worker said that he would not consent to PADI or his accountant providing any information. In the course of the hearing I made it clear to the worker that I believed important evidence relating to his diving instruction and earnings was being denied to the Tribunal.

79 Later in his testimony the worker indicated that his resistance to providing documents and information to the Tribunal was based on his concern that he might incriminate himself in other proceedings elsewhere:-

"HIS HONOUR: Q I'm simply suggesting a means whereby critical if not essential evidence could be got before me.

A But what is critical? Why is having data like that important, because if it was only going in this venue, then fine, because it also says in the Act that I don't have to give up information or anything else that may incriminate me.

MR DOWNS: Yes, that's what I was about to get to, Your Honour. It may be that it ...

MOORE-McQUILLAN: A We have had a history of them doing things that do incriminate because they delete sections of the Act.

MR DOWNS: In effect Mr Moore-McQuillan is saying to you that he is refusing to bring forth the documentation as it may incriminate him in other proceedings. That may be his reason for not doing it.

A It may or may not incriminate me in other proceedings but I don't want to still - but rather than take the chance, it's better not to take the chance, and that's the way I would rather leave it.

80 I am not in a position to judge the truth or otherwise of this belated explanation by the worker. What can be said, however, is that there is no evidence before me whatsoever to give credence to the worker's repeated assertions of theft of his records, and consequential inability to bring to the Tribunal documents and details relating to the diving courses that he has been conducting.

81 I found the agent Rorie to be an impressive and credible witness. His sharp memory and detailed contemporaneous notes covering the period 14 November 1998 to 2 May 2000 provided a sound basis for what he had to say. His straightforward and consistent evidence stood in stark contrast to the performance of the worker and where his testimony conflicts with that of the worker I have no hesitation in preferring his account over that of the worker.

82 The inquiry agent Skella testified as to his surveillance and video filming of the worker over the period 29 November 1998 to 17 January 1999. He spoke of overseeing the transcription of video film from the original "System 8" cassettes to larger VBS cassettes in both full and edited versions. All cassettes, including the original "System 8" cassettes, were produced and received into evidence, as also was a written precis of selected filming of the worker over the period 29 November 1998 to 9 February 2000.

83 Skella was the first of the Corporation's witnesses and was clearly reluctant to admit to the agent Rorie's role in the surveillance operation. This reluctance led to some prevarication on his part in relation to the involvement of other agents in the operation. He ultimately admitted to this, citing his concerns for the other agents and Rorie in particular. One might accept that his concerns were well founded given the conduct of the worker throughout the hearing. Be that as it may, I found Skella to be a credible witness.

84 The inquiry agent Golding testified as to his surveillance and video filming of the worker over the period 17 January 1999 to 9 February 2000. He also spoke of his involvement in the production of the documentary video precis that was received into evidence as Exhibit R8. Golding presented as a credible witness.

85 I have viewed all of the video tapes produced by the agents Skella and Golding. The tapes focus on, but are not limited to, the worker's attendances at various seaside locations in the company of others in the course of his instruction of them in diving. On some occasions the worker is shown in the water participating in the diving. On other occasions he is shown instructing from the beach or jetty. On other occasions he is shown launching his boat and, wearing his wet suit, driving it out to sea in the company of others.

86 The extensive video tapes themselves provide compelling evidence of the worker's capacity to engage in diving and diving instruction activities without apparent restriction or impediment. The worker is seen easily climbing into his boat, using his outstretched left leg as a prop whilst pulling himself up. He is shown bending, lifting and carrying heavy items. He is shown climbing up and down the steps of jetties to enter and leave the water kitted out in his scuba diving gear, weight belt and air tank on his back. On other occasions he is shown climbing over rocks on the sea shore. The tapes show the worker to be capable of performing the activities depicted without any apparent physical restriction.

87 Video taped observations of the worker on 5 February 1999 show him moving freely whilst carrying large and heavy items at a private address, and on 23 February 1999 pushing a trailer and assisting to unload a desk from the trailer and carry it indoors.

88 The worker contends that he has been and remains unfit for employment as a diver or diving instructor or diving supervisor by reason of his knee disability, and that he has not, as alleged by the Corporation, engaged in the business of instructing divers. As for any diving instruction, his initial position was that he had done very little and no more than he had to do in order to maintain his qualification as a Master Instructor, as advised by the Corporation. It was, he said, years since he had gone into the water to instruct students. As the evidence of his diving activities unfolded, however, so the worker modified his position to try to explain this evidence. Thus, it was ultimately the worker's evidence that not only had he instructed Rorie in the diving courses and participated with him in deep dives in the open sea, as attested by Rorie, but he had known from the outset that Rorie was an agent and so had pushed himself physically to do things beyond the normal in order to "piss him off". I have previously commented on the implausibility of this evidence.

89 The worker's testimony with respect to his diving activities and training of students was evasive and inconsistent throughout. I will give just a few examples.

90 He was asked by Mr Downs in July 2000 whether since September 1998 he had conducted any training courses in diving:-

"Q Since September '98 have you conducted any training courses in diving.

A Haven't I already answered that? Haven't we already gone down that track?

A I can't remember what I answered before and I can't remember what's going on. It's just confusing.

A Look for it? I haven't got my diary with me. I haven't got anything.

Q Listen to the question carefully. That's all I mean.

A He said since September '98 and that's what we're talking about, but I just said been diving ...

Q Yes, well, just focus on the date and then answer the question.

A I'm just lost as to what he is actually asking for.

Q Have you since September '98 been involved in training any divers.

A Fuck me, I don't know. Honestly, you've got me beat there. You win I give up. I haven't got my diary. If I had my diary with me I'd give you an exact answer.

A But now you're asking me for a generalisation. I'm not going to put myself down - commit myself to a date when I haven't got a diary."

91 Subsequently, the worker refused to produce his diaries to the Tribunal, notwithstanding his using them to question Rorie, and likewise any other records to enable him to give details of his involvement in the training/instruction of divers.

92 The worker was asked by Mr Downs about when last he had worked:-

"A ... So if you really want to know about it, 18 January 1998 was the last time I worked.

Q Haven't you worked over at Port Lincoln in a diving course.

Q Mm. Didn't you go to Port Lincoln. Didn't you tell the Supreme Court about going to Port Lincoln to do a diving course.

A To help some people out over there, yes. My friends who have gone to (indistinct), yes.

A I'm asking you the question. Did I charge them money for it.

McCOUAIG DP: The question Mr Moore-McQuillan, is whether you charged money for that work. Would you answer the question please.

A I don't think I charged them money, your Honour, no.

A I charged them my expenses - my flight over, my accommodation ...

A ... which would have only been fair. There was no profit on my behalf. There was only a break even situation."

93 Based on the worker's own later evidence, this prevaricating testimony was also untrue. The worker acknowledged that he had worked for monetary reward after January 1998 in that he had conducted several courses for Rorie, a rescue course for five students in Port Lincoln and a divemaster course for six students in Port Lincoln. He did not dispute Rorie's testimony with respect to his payment of course fees to the worker. Nor did he dispute Rorie's testimony that the rescue course students had paid $340 each and the divemaster students $525 each. Even if his assertions with respect to payments made to Rorie were accepted as true, there is still over $3000 from the two Port Lincoln trips to be accounted for.

94 The worker was somewhat less equivocal in denying that he had been in the water whilst instructing students:-

"Q So when is the last time that you went in the water whilst instructing or assisting students.

Q Well, perhaps if you can tell us what `a long time ago' is.

95 On the worker's own later evidence, this testimony was patently untrue. On his own admission he has not only been in the water instructing students, but has engaged in open sea instruction of students on many occasions since September 1998.

96 It was initially the worker's contention that he had "never, ever" dived with Rorie on a recreational level. Rorie disputed that and testified that they had dived together on a recreational level on several occasions. Asked by the worker to be specific, Rorie said that they had together dived "the Lum" on various occasions. The worker put to Rorie (tr 540) that "every time we've dived it (the Lum), we have dived it as a training dive". Again, Rorie disputed this.

97 Subsequently, the worker gave a somewhat different account. In his testimony he spoke of taking Rorie out in his boat from O'Sullivan's Beach "quite a few times, where we've kitted up and got in our wet suits and we've gone out looking for the barges ... But we have been out trying to find the Port Stanvac barges and we have been out to find "The Lum" - that was another wreck and that's only in 70 foot of water, and we have been out trying to find things . Cruised all over the place and then turned around and come back and not dived at all, or gone over the side ...".

98 The worker testified that he did not think he had been out instructing anyone or in an instructing capacity on such trips within the last five years. This contradicted his earlier assertion that he had "never, ever" dived with Rorie on a recreational level and that every time he and Rorie had dived the Lum they had done it as a training dive.

99 Dr Gauvin's account of what the worker told him in late 1999 about his diving is also quite at odds with the worker's later evidence. The worker was referred to Dr Gauvin in September 1999 for an opinion with respect to "loss of time" experiences the worker claimed to have been having. Dr Gauvin assessed the worker over the following six months. Before me, in July 2000, Dr Gauvin was asked whether the worker had given him any history of being able to undertake diving. Dr Gauvin testified that the worker had told him that he was not diving at the time of his consultations and that he had last dived in September 1998. Dr Gauvin said that he would be surprised if the worker was able to go out instructing and diving based on the symptom profile given to him.

100 The worker's own testimony was at odds with this account. He did not challenge Dr Gauvin on his testimony when he had the opportunity to do so. Now, in his written submission, he asserts that he did tell Dr Gauvin about his diving and is unable to understand why Dr Gauvin testified differently. I prefer the testimony of Dr Gauvin on this point. I find that the worker deliberately misled Dr Gauvin as to his capacity to dive.

101 The worker now relies on the opinion of Dr Gauvin to show that he is unfit on medical grounds for diving work. Suffice to note Dr Gauvin's acknowledgment that his opinion would be affected by knowledge of what the worker was in fact doing. We do not know what Dr Gauvin's fully informed opinion is.

102 The worker's prevarication and inconsistent testimony is again illustrated in the following passage from his cross-examination by Mr Downs on 4 July 2000:-

"Now, you were asked about - well, what did you do when you went to Port Lincoln in Easter of last year.

Q Yes. Did you conduct any business whilst you were over there.

A No. I charged to cover the cost if I'm working. If I have to go over there and I have to teach diving, I cover the cost of the transport over there and the diving equipment but I don't pay out of my own pocket for it.

Q Well, perhaps - are you able to give a precise figure.

A More than one. There was more than one. There was - I took two over from here.

Q But didn't you, on 6 April, have a commitment with Mr Justice Debelle in the Supreme Court.

A Which I have notified him before and I couldn't make, yes.

A For a start, the excuse I gave him - if you want to have a look at it, because I couldn't get a flight back until the 6th, until late in the afternoon on the 6th. That was the earliest flight I could've got back. I would've missed it anyway, and I'd already booked the flight and I'd already booked the trip before I went.

Q Wasn't it suggested to the court that you couldn't attend because you were mentally ill at the time.

A No, I said to him I couldn't make it because I had a prior engagement.

Q Well, that wouldn't be correct, would it, if you were over at Port Lincoln assisting some people in a diving course.

A I wasn't. I was over there relaxing, getting back on the track, trying to enjoy, trying to get away from you. But do you remember that prior to going you had four or your little morons running - four of your big morons, sorry - running around in a Fiat trying to run me off the road?"

103 The worker's denial that he had been assisting people in a diving course, after earlier admitting that that was precisely what he had been doing, came in the context of his being questioned as to the reason he had given Justice Debelle for not attending a scheduled court hearing on 6 April 1999. This passage is yet another example of the worker's evasive and inconsistent testimony in relation to his diving activities.

104 His prevarication was also evident in relation to other matters, an example of which I will give. It relates to his return of one of the surveillance video tapes that he had been given to view. This tape was received into evidence as Exhibit R44A. It is one of two tapes that were viewed by Mr Fry on 12 December 2000, each of which, Mr Fry testified, he initialled and dated for identification purposes.

105 Exhibit R44A was provided to the worker on a temporary basis pending the making of another copy for him. It was returned to the Tribunal by the worker on 12 January 2001 and he was provided with a copy.

106 On 8 January 2001 Mr Downs asked the worker to return the tape. The worker acknowledged that he had the tape that had been given to him but, without saying whether or not it also had the initials of Mr Fry on it, said that it had the signature of Mr Downs' "offsider" on it. I note that the second tape viewed and initialled by Mr Fry on 12 December 2000, and received into evidence as Exhibit R44, bears the initials of Mr Fry over the date 12 December 2000, and also a second set of initials.

107 The transcript of hearing on 8 January 2001 later records the worker's acknowledgment that he did have the video tape signed by Mr Fry.

108 Later again, the worker said that he was not sure of the tape's whereabouts:-

"McCOUAIG DP: You'll produce that video to me at the completion of this evidence.

MR MOORE-McQUILLAN: You might have a bit of a problem getting it from the police.

McCOUAIG DP: Is it in your possession at the moment?

MR MOORE-McQUILLAN: I think its in the possession of the police. I'm not sure. I gave it to the police.

McCOUAIG DP: Who can I contact at the police to secure it?

MR MOORE-McQUILLAN: Well, I'll contact them when I get out of here. I'll go and check it out.

McCOUAIG DP: That should suffice, shouldn't it, Mr Downs? I'm just concerned to get it into secure hands so that I can see it.

MR DOWNS: In that case it should come in tomorrow morning if you want it in secure hands.

MR MOORE McQUILLAN: No, you get it off the police like everyone else when they book you. I'd still want a copy of it though, your Honour.

McCOUAIG DP: Could you advise me as to the status of that video and endeavour to bring it in in the morning?

MR MOORE-McQUILLAN: I'll try and do that. Can I get a copy of it too?"

109 When asked the following morning if he had brought in the tape initialled by Mr Fry, the worker requested the replacement copy and made it clear that he would not part with the tape until he had been given a replacement copy. When again asked if he had brought in the tape he said that he had not and that he did not know where it was:-

"McCOUAIG DP: Mr Moore-McQuillan, have you brought that - - -

MR MOORE-McQUILLAN: No, I haven't. I don't know where it is.

MR MOORE-McQUILLAN: Until I get a copy of it I'm not even bothered looking for it.

MR DOWNS: You will recall last night he mentioned it was with the police and - - -

MR MOORE-McQUILLAN: No, I didn't. I said it may be somewhere. I did not say where it was. If you want to fucking - - -

MR MOORE-McQUILLAN: - - - make a point you fucking find it. You've been inside my house and you fucking (indistinct) pricks - - -"

110 On the following day the worker was again asked for the tape. He said that he had been too busy to follow up on it.

111 On the following day the worker produced the tape. He did not suggest that it had been retrieved from the police. It was not marked with Mr Fry's initials or signature as stated by the worker on 8 January 2001. It was not marked with any other initials or signature as also stated by the worker on that date. It had no label at all. It is the only one of some 55 individual tapes received into evidence that does not have a label.

112 When his previous acknowledgment of having had in his possession the tape with Mr Fry's signature on it was put to the worker he responded that he had not said this in sworn testimony, only from the bar table. He thereafter asserted that he was being wrongly blamed for someone else losing the tape.

113 I find that the worker was initially provided with the video-tape viewed by Mr Fry and initialled by him on 12 December 2000. I find that Mr Fry's initials, as well as the initials of another person who I assume played a role in the compilation of the tape, were on a label attached to the tape when it was given to the worker. The worker acknowledged as much at one point. I find that the worker deliberately removed this label before returning the tape to the Tribunal on 12 January 2001. I am satisfied that the tape was not otherwise tampered with.

114 Whilst no harm was done to the video-tape itself, the worker's mischievous conduct is illustrative of the obstructive approach he adopted to the proceedings and his testimony in relation thereto is again illustrative of his propensity to prevaricate and contradict himself.

115 The worker's assertions aside, there is no evidence before me to support his claim that his records relating to his diving students and his instruction of same, including his dive log book, dive student folders and computer records, were stolen from his home and therefore unavailable to him. He could in any event have made available his diaries which he acknowledged hold all the relevant information. Alternatively, he could have permitted the accessing of this information from PADI or from his accountant. To the extent that he finally resorted to a plea of self-incrimination in other anticipated proceedings, this leads to the inference that what he has to date revealed to the Corporation and to the Tribunal about his diving instruction work is less than the full story.

116 It is clear from the worker's own testimony that he has sought to hide from the Tribunal the true extent of his diving and diving instruction work. To this end, by refusing to produce relevant records and put his own account openly on the table, he has been partially successful. His qualified admissions were only ever reactive to the indisputable surveillance evidence of his activities adduced by the Corporation. He was unwilling to volunteer information about his activities. It was always a case of "show me your evidence, then I'll give you an explanation". My strong impression is that he would not have admitted that which he did about his diving activities had he been successful in getting the surveillance evidence excluded.

117 The worker's qualified admissions of involvement in some diving and instruction of divers remain at odds with the testimony of Rorie and the video tape surveillance of him. He still disputed Rorie's testimony as to the extent of his (the worker's) diving activity and instruction of students for payment. He still disputed Rorie's testimony as to their joint participation in deep sea diving on a recreational level, although as I have noted, the worker's testimony is inconsistent on this matter.

118 It is the worker's case that he is not physically capable of working as either a recreational diving instructor or a commercial diver. To the extent that he now acknowledges having engaged in some degree of diving and instruction of divers, he proffers various explanations; that he forced himself to do things that he did not and could not normally do; that he did these things deliberately in order to "set it up" for Rorie; that he did these things to "piss him (Rorie) off" and get him out of the way; that he did these things to relieve the pain in his knees; that he did these things notwithstanding the pain it caused him; that he did these things to see if he could perform fully as a diving instructor.

119 In considering whether the Corporation has established that the diving work it has nominated is "suitable employment" for the worker having regard to the criteria set out in s 35(2)(a), judgments must necessarily be made as to the reliability of and weight to be given to the testimony of the worker and the testimony of the witness Rorie respectively.

120 I have previously referred to instances of the worker's evasive and inconsistent testimony. I find that he gave knowingly false testimony to the Tribunal with respect to his diving and diving instruction work. I find that he did this with the intention of hiding from the Tribunal the true extent of his diving and diving instruction work. I find that he likewise deliberately misled Dr Gauvin about his diving activities in the hope that this would assist in him obtaining a favourable medical opinion.

121 I find that the worker's claims to have known from the outset that Rorie was an agent and to have done things in Rorie's presence beyond that which he normally did were untrue and made in an attempt to diminish the impact of Rorie's testimony insofar as it related to the worker's capacity to engage in diving and diving instruction work.

122 I have previously dealt with the worker's contention that he did not pursue a claim for compensation in respect of the chipping of his tooth at home on 21 January 1999. The documentary evidence indicates otherwise. The worker's denials notwithstanding, I find that he did complete and sign the Notice of Work Related Injury (Exhibit R39) and that he did make a false claim with respect to his chipped tooth.

123 The aforesaid concerns with respect to the worker's credibility, combined with his threatening and aggressive demeanour and persistent prevarication in response to questions, gave me no confidence in the reliability of his testimony.

124 On the other hand, I found the agent Rorie a straightforward and credible witness. The many hours of video surveillance of the worker, which I have viewed, speaks for itself in corroborating much of his testimony and in showing that the worker has misled the Tribunal with respect to his capacity to engage in diving and diving instruction work.

125 In arguing for the exclusion of the surveillance evidence, the worker foresaw that it would "paint a real nice pretty picture of what we can do and what we can't do". His decision to subpoena Rorie was motivated by a belief that this was necessary to enable him to argue for the exclusion of the surveillance evidence. It was a bad gamble, for it was Rorie's testimony that gave context to much of the video surveillance, that exposed a lot more in relation to the worker's diving activities and that ultimately proved so damaging to the worker's credibility.

126 The worker's own testimony in relation to his pursuit of three overseas diving jobs in 1999 and preparedness to undertake the arduous higher qualification of Course Director suggests that he considered himself to have the capacity to work at an intense level within the diving industry.

127 With Seapactec, a USA company, he said the job would have included overseeing dive shops at four different locations in the USA. It was a full time job requiring him to be on call 24 hours/day. The pay was US$70000 plus accommodation and health insurance. If he was successful in securing the job, the company also wanted him to obtain the higher qualification of Course Director. The worker said that he told the company about his knees, about his difficulties with WorkCover and about his conviction for fraud. Notwithstanding this, he said that in January 1999 company representatives invited him to go and see them in the USA. He applied for a visa to travel to the USA, but was refused one on account of his conviction for fraud. This put an end to the job. It was the worker's evidence that had he got the visa he would have taken the job:-

"Q Had you got the visa would you likely have taken that job.

A You bet you. I would have. Fucking dropped it - I would have dropped it straight away. You wouldn't believe it. I would have gone. That's only the first one I lost. I lost three, all right.

A I lost another job with Daikyo, which is a Japanese company at Green Island in Queensland."

128 The potential job with Daikyo was again full time and involved travelling to resorts around the Pacific region. It seems that the worker's inability to obtain a USA visa again ultimately brought an end to this job opportunity. The worker said that it was serious job offer. This job too would have required him obtaining the higher qualification of Course Director.

129 The worker described in his evidence how difficult and expensive (over $14000 for just the course, plus travel, accommodation and equipment) it was to gain the qualification of Course Director, and he gave some insight into the intense theoretical and practical requirements that applicants are put through over some 21 days. It is an interesting insight into the worker's own assessment of his capabilities that he was prepared to pursue this qualification if he had obtained either of the aforementioned jobs. Moreover, the worker said that he had independently applied for but narrowly missed selection for this same course in 1997.

130 The worker's third potential job was with a Northern Ireland company which was looking for someone to operate diving tours off the coast of Northern Ireland, diving the wrecks of the Spanish Armada. This was of particular interest to the worker because, he said, he particularly enjoyed diving wrecks. He referred to another ship wreck location, Truck Lagoon, which he said he had dived in February 1991 following his original knee injury. He said that he would have moved over to Ireland permanently if he could have secured that job which again was full time. After much liaising back and forth, company representatives came to Adelaide to meet with him. The timing, however, was unfortunate:-

A The fact is that just before they turned up I had already been assaulted and I had a great egg on my head from where I had been bashed up, and they kept on saying `What happened there?' `That's just WorkCover, they just come around and assault me in the middle of the night' and there was an assault charge placed at the Police Station and they are going - and then different things happened whilst they were here between the 1st of the 7th to when they actually left on that day. On that day they said, `That's it, we're out of here'. And there were different things where I had been followed and harassed and whatnot and I said `It's just WorkCover. It's just why I want to get out of here'."

131 The Corporation led evidence from the worker's orthopaedic surgeon Mr H Moss. I allowed this against the objections of the worker. Mr Moss had previously been shown an abbreviated version of some of the video surveillance of the worker. It was Mr Moss' opinion that whilst the worker had a bilateral (but primarily left sided) knee disability, he would probably be able to cope with managing a dive shop. With respect to those aspects of diving and diving instruction shown on the video, Mr Moss agreed that the worker could perform those aspects. As to whether the worker could perform all aspects of diving instruction, Mr Moss was more circumspect, initially proffering the view that he was not in a position to comment about any other aspects of diving not shown in the video, but then indicating that given the fact that the worker had some restrictions and would when instructing be responsible for the people under him and therefore need to be capable of doing everything in emergency situations, he thought he "could do some of these activities but not necessarily all of them".

132 Mr Moss said that he had detected some indications of left knee disturbance on the video material he had been shown. Asked if he had seen anything on the video that surprised him, he admitted to some qualms about an instance of the worker quite rapidly ascending and descending a slope, but thought that this was explicable on the basis that the worker was having a good day and could therefore do more than one would expect.

133 The Corporation also led evidence from the orthopaedic surgeon Mr P Fry. Again I allowed this against the objections of the worker. Mr Fry had examined the worker in December 1997 and his report thereon dated 16 December 1997 was received into evidence as Exhibit R43. As with Mr Moss, Mr Fry had been shown an abbreviated version of some of the video surveillance of the worker. Put shortly, it was Mr Fry's view that the videos suggested that the worker was already doing diving instructing work and that the work of a shop assistant would be within his powers. In his report of 16 December 1997 Mr Fry had noted:-

"In short, it would appear that the fall down the stairs injured both knees, there appears to have been a chondro-malacia effect produced, plus in the left knee some meniscal tearing too which required re-section. It would seem that the effects of all of this is ongoing in both knees, however, it must also be said that the signs on examination of the knees are quite minimal - beyond some, and even that minor, tenderness, with, on the left side some minor patello-malacia discomfort, nothing can really be found.

8. His present capacity for employment appears somewhat restricted. It depends of course upon acceptance or otherwise of the history, for as can be seen much of what appears to be wrong with Mr Moore-McQuillan's legs is very subjective. The knees, to outside examination do not suggest a great deal of abnormality at all. Whilst I am aware that there is articular abnormality inside the joints, the overt signs of any physical effects that this might be causing him are singularly few. If one were to say that he would be unfit for work requiring use of the loading knees, crouching, climbing, or kneeling, this would be a reasonable restriction level, I believe.

9. I am unclear whether this would restrict him in his pre-injury duties in their totality. Mr Moore-McQuillan maintains that they did, I am unable to give an expert opinion on this precise point. I think that his knees might cause him problems in the situation as mentioned in the paragraphs above, if these were applicable."

134 A psychologist Mr Mark Reid was called by the worker and I received into evidence a copy of Mr Reid's report to Dr Gauvin dated 25 November 1999. The worker had been referred by Dr Gauvin to Mr Reid to investigate "paranoid features and memory lapses of significant degree" that Dr Gauvin suspected were fugue states. Mr Reid carried out a psychological examination. He said that he found no evidence of brain damage or any difficulty with memory functions of an organic nature. Indeed, his assessment of new learning and short term memory functioning revealed an above average performance, consistent with the worker's above average range of intellectual ability. Accepting the worker's description of his memory lapses, Mr Reid agreed with Dr Gauvin that they were consistent with dissociative or fugue-like states occurring in the context of the worker's reported high levels of stress. Mr Reid explained that persons suffering from fugue states could function and converse normally, but afterwards might have no recollection of what they had done or said. He said that he could not say whether or not a diver could continue to function appropriately during one of these states, but said that he knew of many people who had functioned adequately in equally complex situations such as driving a truck.

135 I did not find the reports or testimony of Mr Moss, Mr Fry or Mr Reid of much assistance in my determination of the worker's capacity for diving work. It is not in issue that the worker has some degree of articular abnormality in his knee joints, primarily on the left side, nor is it in issue that he experiences intermittent pain in his knee joints. At issue is his capacity to dive and to work as a diver, diving instructor, or diving supervisor. The witness Rorie's testimony, the extensive video surveillance of the worker's activities and the worker's responses to this evidence provided a much broader and more reliable basis for my determining these issues.

136 Nor did I gain much assistance from the witness Eylander who, not having dived with the worker or been present whilst the worker has been instructing divers for some six or seven years, was not in any position to comment with first hand or persuasive authority on his present capacity to dive or perform the work of a diving instructor or diving supervisor. Eylander said that he had last seen the worker instructing students about six or seven years ago. The worker had then been conducting an open water course with two or three students. Eylander did not refer to any difficulties encountered by the worker in conducting that course.

137 It was nevertheless Eylander's opinion that the worker's knees would preclude him from doing rescue work and the controlled ascent that was required to be demonstrated in the openwater course which he identified as the initial course undertaken by a scuba diver. It was apparent that Eylander was unaware of the diving and diving instruction work performed by the worker in recent years.

138 A matter that Eylander's testimony did highlight was that a person's capacity to fulfil the role of a diving instructor did not necessarily require that he do all of the in-water work himself:-

"Q So I suppose you'd agree that the proof is in the eating of the pudding if it can be shown that he has done this, that is, teaching people in open sea water, then probably his injury is not prohibitive as you suggest.

A No, because the instructor himself doesn't necessarily have to do it himself. He can use somebody else, okay? So for instance we like we have dive masters which are instructor assistants, and thank God we've got them because you wouldn't be able to do the whole lot yourself. Its just too much. So you can use dive masters and so on, or assistant instructors.

Q So we have the two options. He may well be able to do the controlled ascent lesson himself or the other is he can stay aboard the vessel and give directions to someone else to carry it out.

Q Thank you. And I gather if he had higher qualifications than the person who's in the water, he would be the person who is in effect instructing the operation.

A Mark would have - an instructor would have overall responsibility, yes."

139 I find that the worker engaged in extensive diving and diving instruction work in the period of surveillance, namely, from late November 1998 to early February 2000. The testimony of the witness Rorie, which I accept, and the extensive video evidence which speaks for itself, puts a lie to the worker's claim that he did only that which was necessary to maintain his Master Instructor rating with PADI. There are indications in the evidence that the worker has engaged in these same activities for a considerable period before November 1998. However, Rorie's testimony relating to his own first-hand diving experiences with the worker, not only when being instructed by him on specific courses but when accompanying him on other courses and and when diving with him recreationally, is sufficient to show the worker's willingness and ability to engage in these activities without impediment.

140 I find that the worker has been and remains capable of performing the sort of work that he performed prior to his knee injury in September 1990 without limitation by reason of that injury or any sequelae disability. Specifically, I am referring to his ability to manage the duties and activities of a scuba diving instructor, as the worker described himself in both of his Notices of Dispute.

141 In the terms of the Corporation's determination dated 1 December 1999, I find that the worker is capable of working as a diving instructor.

142 The worker's employment in 1990 also included managing a dive shop. Most of those "shop" activities he has been performing from his home. I am satisfied and find on the evidence that he has been and remains capable of performing the sort of work that he did previously in that capacity.

143 I find that the worker has been working as a scuba diving instructor on his own account under the business name "McQ Diving". I am unable to determine the extent of his diving business, or the income that he has derived therefrom, because of his unwillingness to disclose to the Tribunal information relating thereto which I am satisfied is within his knowledge and possession.

144 The fact that the worker has been working as a diving instructor establishes that there is a reasonable prospect of him obtaining work of this kind. In any event, the worker has not rebutted the statutory presumption raised by s 35(2)(c) of the Act.

145 With respect to the nominated employment of diving supervisor, the worker led evidence from Derek Craig, currently employed as an occupational health and safety inspector with Workplace Services, and self-professed diving specialist in that Government Department for the past 15 years. It was Craig's evidence that a diving supervisor for the Ports Corporation would have to hold occupational diving qualifications, and that the worker's current qualification of Master Instructor with PADI, a recreational diving qualification, would not be sufficient. To attain the minimum occupational diving qualification, he said, the worker would have to undertake a four or five week training course that would involve different diving techniques and competencies. By way of illustration, he said that there were very few construction tasks that are allowed to be performed using scuba, and so most occupationally trained divers were trained to use surface supplied breathing apparatus. Moreover, where scuba equipment was used in occupational diving, the scuba equipment was "set up differently and used and operated differently".

146 Craig said that it was his understanding that a diving supervisor had to be trained to a level at least equal to the level of qualification required for the divers who were carrying out the operation. Thus, the worker's qualification at the minimum occupational diving level would be of no avail to him if the diving operation required the divers to be qualified at a higher level.

147 Craig said that for the worker to be a diving supervisor he would also have to be cleared medically fit for the task by an occupational physician trained and/or experienced in diving medicine. Typically, he said, this was done by the Royal Adelaide Hospital Hyperbaric Medicine Unit or by someone trained there. The worker also had to "fulfil other requirements in the legislation that require a diving supervisor to have the experience necessary to properly supervise a diving operation, so that you couldn't be thrown on somebody coming straight off a diving course and going out to supervise a diving operation". He was not asked to elaborate on how this supervisory experience could be attained.

148 A facsimile from Ms Jodie Marsh, claims manager of Ports Corp, was tendered by the worker and received into evidence as Exhibit A17. This facsimile records, inter alia, that:-

"Ports Corp does not currently have any full-time divers in its employ, however, we do have a number of employees who conduct our diving duties on an `as needs' basis. They are qualified divers according to AS 2815 and hold either Category 1 or Category 2 licenses, and are certified under the Australian Diver Accreditation Scheme."

149 AS 2815 is the Australian Standard for the training and accreditation of occupational divers.

150 Craig's testimony and the facsimile from Ms Marsh indicate that the worker is not currently qualified to work as a diving instructor for the Ports Corporation. There is no evidence before me to show that he would necessarily attain the requisite qualification or pass the requisite medical examination. That is not to say he could not do so, but in the absence of such evidence I am not prepared to assume that he would. I am accordingly not satisfied that the Corporation has established that employment as a diving supervisor pursuant to the Ports Corporation South Australia Enterprise Agreement 1997 - 2000 is suitable work for the worker taking into account the criteria in s 35(2)(a) of the Act.

151 The witness Craig said that it was his understanding that there were no pay rates prescribed for recreational diving or the instruction thereof. The worker said that he was unaware of any industrial rate being prescribed:

"I don't know what a diving instructor actually earns. I don't know what you could put down as a rate for that. I haven't found an industrial rate for it and I think different people are different - it works out on the individual, and I don't know what they can or what they can't do or what they have done or what they can't do. They're each instructed, and each level and each qualification runs at a different gauntlet ..."

152 The worker's irregular pre-injury earnings, as indicated in Exhibit R49, suggest a significant variability also in the weekly earnings of an individual diving instructor. It is apparent from the testimony of both the worker and Rorie, however, that there is an accepted "going rate" that is charged to a student for each course or level of instruction. There also appears to be a set course fee payable to PADI by instructors accredited with that body.

153 The Tribunal does not know what amount the worker has earned in recent years from his work as a scuba diving instructor. This is solely attributable to the worker's unwillingness to disclose this information. Given that his capacity to work as a scuba diving instructor/dive shop manager has not been diminished on account of his compensable disability, in the absence of any evidence to indicate otherwise, it is reasonable to infer that he is now earning or able to earn not less than his notional weekly earnings.

154 The Corporation's determination of 1 December 1998 is accordingly affirmed, save that in accordance with my finding that the worker is now earning or able to earn not less than his notional weekly earnings in suitable employment as a diving instructor, his new entitlement is fixed at nil.

155 In the course of the hearing the worker claimed to have been taken by surprise to learn that the Corporation's determination was concerned with his capacity to work as a diving instructor and was not limited to "commercial" diving. The determination makes no mention of commercial diving and makes it plain enough that what is being asserted is that the "suitable employment" within the worker's capacity is work either as a diver, or "in the alternative as a diving supervisor", or "in the further alternative as a diving instructor". It cites the Ports Corp South Australian Enterprise Bargaining Agreement to provide a weekly earnings figure for the allegedly suitable employment as a diving supervisor.

156 Even if it be true that the worker was initially under any misapprehension about the determination, it is clear that by the start of the fourth day's hearing on 15 December 1999 he was aware that the matter was not limited to a consideration of his capacity to work as a diving supervisor at Ports Corp. The Corporation's case was closed at the end of the sixth day's hearing on 9 January 2001. The worker proceeded with his case on the following morning. He had ample opportunity to address the issues in their entirety.

157 The worker claims that he was prejudiced by my curtailing of his cross-examination of the witnesses Skella and Mr Fry. Skella was called by the respondent to prove some of the video surveillance tapes that were received into evidence. In the scheme of things he was not a critical witness, although clearly the worker was entitled to cross-examine him which he did . I released Skella following the worker's refusal to desist from the persistent loud whistling of tunes after nearly every question and answer and following my repeated warnings to him, including a "final warning", of the consequences of him continuing that conduct. He had persisted with this same conduct throughout much of the previous day. In releasing Skella I also had regard to the fact that the worker's cross-examination of him had reached the point of repetition and irrelevancy.

158 Mr Fry was called by the respondent. After some two hours the worker's cross-examination of him turned personal and offensive. I warned the worker on several occasions to make his questions relevant and I warned him of the consequences of persisting with his offensive questioning. When the worker continued on this theme I invited Mr Downs to re-examine. It was clear that the worker had exhausted any productive questioning of Mr Fry.

159 The hearing of these matters was rendered an ordeal for everyone by reason of the worker's disruptive and aggressive behaviour, threats to counsel, appallingly crude language and total lack of respect for anyone. The transcript speaks for itself. If the worker intended by his conduct to demonstrate some inability to control himself and/or inability to conduct the proceedings, he failed. To the contrary, it was patently clear to me that his conduct was contrived and that he could control himself when he wanted to. Having now had the advantage of hearing and observing the worker over another ten hearing days, I am reassured in my earlier judgment that he was not by reason of any medical condition disadvantaged in any way in the conduct of his proceedings.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.