2. The applicant was born on 5 August 1941. He was employed as a permanent officer in the Service on 13 January 1958. He was engaged as a technician in training. He became a technician on 1 January 1963. He was promoted to the position of senior technician on 7 August 1968, and became a technical officer grade 1 on 7 May 1970. On 7 March 1978 he was demoted to the position of technician. On 8 January 1981 he was promoted again to technical officer grade 1, and on 23 August 1984 to technical officer grade 2. The last-mentioned position, which he held until his purported retirement, was a responsible one in the Service which included duties of staff supervision, organisation and scheduling of activities and resources, and the "preparation of working, progress reports and other documentation essential for the successful safe and timely completion of current and future installation projects".

3. The applicant owned and resided on a small farm in the Meadows district. In the Ash Wednesday bushfires on 16 February 1983 his house and property were devastated. He lost all his possessions. His losses were not covered by insurance. Since the fire he has lived on the farm in a makeshift converted shed. He borrowed heavily to replace essential items. Interest rates have since risen. He has been in very difficult financial circumstances. Since the bushfire he has separated from his wife, and his family have split up. The particular fire which caused his losses was started by Electricity Trust of South Australia ("ETSA") power lines. He claimed damages, but it was not until November 1988 that he received a compensation payment. That was after the actions taken by the respondents leading up to Telecom's decision to retire him made on 20 October 1988. The compensation payment which he received was in the order of $258,000.

4. On 16 May 1986 the applicant suffered an injury, unrelated to his employment, to his achilles tendon which disabled him first totally, and then partially, for many months. At about that time his supervisors in Telecom were expressing concern about his performance at work. In May 1986, and again in July 1986, he was counselled by Mr J.E. Francis, a construction manager in line control of the applicant, about aspects of his behaviour. In July 1986, after he stayed at work all night for a second time, having been warned after the first occasion not to do so, he was transferred from an office situation to field work. On 25 September 1986 he was referred by Telecom to a CMO for medical examination to assess his fitness to continue working. Reports by his supervisors, including minutes from a Mr Matters dated 24 September 1986 and a Mr Brazil dated 15 September 1986 which listed reports of abnormal behaviour, were supplied to the CMO and to the applicant. The CMO reported that the applicant was suffering "acute stress reaction and exhaustion", and recorded the following brief history:

"Susceptible to stress since Ash Wednesday, one week of

visual difficulty while driving, explosive temper, vague

auditory and visual illusions/hallucinations probably related

to obsessive working throughout the night with consequent

lack of sleep and recent increased financial burden related

to Ash Wednesday."

The applicant was certified unfit for work at that time but his prognosis was said to be "good". It was recommended that he be granted further sick leave at the discretion of his treating doctor. The applicant returned to work after a short absence on sick leave. However his supervisors considered that his work performance thereafter continued at a very low level.

5. On 2 May 1988 the applicant again went off work on sick leave. He had suffered another injury to his foot. Reports received by his in line supervisors at that time from other people in the Service who worked with the applicant led Mr Francis, to the opinion that he should not be allowed to continue to work in the Service. On 6 July 1988 Mr Francis and a personnel manager, Mr Garland, visited the applicant at his farm (he was still on sick leave). I accept generally their evidence about that visit. It was not uncommon for Telecom managers to visit officers who were at their homes when they had been absent from work for extended periods on sick leave. The managers informed the applicant that they were concerned about his poor health and work performance. They referred to his behaviour being at times irrational and his attitude to other staff members being overbearing and aggressive. I accept that the applicant did not deny these complaints about his behaviour on that day, but I am satisfied that Mr Francis and Mr Garland understood that he did not accept the criticisms which had been made by others about the standard of his work. The applicant was offered a redundancy package, which, if accepted, would have given him a substantial lump sum payment. He was informed that if the redundancy package was not accepted, and he was given seven days to consider it, the managers would arrange for him to be examined by a CMO to assess his fitness for duty.

6. The redundancy package was not accepted. Arrangements were made for a medical examination. The applicant was advised of those arrangements by letter dated 15 August 1988 which enclosed forms and written information about him which had been sent by Telecom to the Commonwealth Director of Health for the purposes of the examination. Included in those statements was a letter from Mr Francis dated 11 August 1988 which set out the reasons for his belief, based on reports, that the applicant should not be permitted to continue working in the Service.

7. On 19 August 1988 Mr Francis and Mr Garland attended a meeting with a CMO, Dr Greacen, which had been arranged at their request. They informed Dr Greacen orally of their concerns about the work performance of the applicant. They did so, I am satisfied, to ensure that the medical officer who was to examine the applicant was fully aware of their view that his work performance had been such that he should not return to work. On 24 August 1988 Mr Francis contacted Dr Greacen and supplied further information about the applicant, and, Dr Greacen's notes suggest, raised the question of obtaining a psychiatric report. As events turned out, Dr Greacen was not the CMO who conducted the examination which took place on 29 August 1988. The examination was carried out by Dr Le Poidevin, who had before him the notes made by Dr Greacen recording information given orally by Mr Francis and Mr Garland, the letter of Mr Francis dated 11 August 1988, and medical records which had come into existence in the Department of Health at the time of the applicant's examination in 1986. At the examination the applicant handed to Dr Le Poidevin an eight page closely typed statement which he had prepared "re Telecom's statement of 11/08/88 by Mr J. Francis...". This statement set out the applicant's answer to complaints about his behaviour and work performance.

8. At the medical examination in 1986 the applicant had disclosed that he was receiving treatment from a psychiatrist, Dr A.C. McFarlane. At the examination on 29 August 1988 the applicant said he was still being treated by Dr McFarlane, and authorised Dr Le Poidevin to obtain a report from him. At the conclusion of his examination Dr Le Poidevin recorded in his notes the following assessment (with abbreviations expanded):

"A personality conflict in Telecom.

Plan - letter to Dr McFarlane, Flinders Medical Centre.

In my opinion retirement on medical ground not warranted."

9. On 4 October 1988 Dr Le Poidevin received a very detailed report from Dr McFarlane. The report confirmed that Dr McFarlane had been involved in the applicant's treatment from 17 October 1985 until 8 December 1986, and had seen the applicant also on two occasions in July 1988. About the last visits the report records:

"These related to his current difficulties at work and his wish

to inform me of his view of the situation because he

anticipated being reviewed by a Commonwealth Medical

Officer in regard to his future employability."

Dr McFarlane expressed the opinion that the applicant was exhibiting typical post-traumatic stress disorder symptoms, being a reaction to the Ash Wednesday fire. The symptoms included irritability, intolerance, poor memory and concentration, and sleep disturbance. In addition the applicant had personality traits which even before Ash Wednesday had led to some conflict with his employer. He said:

"Thus, Mr Inkster's current difficulties at work can best be

understood as an interaction between his post- traumatic

stress disorder, his personality and the on-going difficulties

that he has had with ETSA and his supervisors. In effect,

much of the hostility which he feels about his predicament

after the fire can easily be displaced onto other situations

which remind him of his predicament."

As to the applicant's employability, Dr McFarlane said:

"Post-traumatic stress disorder in its own right, does not

preclude somebody from continuing gainful employment.

There are many people with this condition who continue to

function in the work environment, albeit hampered to some

degree by their difficulties with memory and concentration.

This often requires considerable effort and the eliciting of a

variety of coping skills by the individual and depends upon

his resilience in the face of adversity. In this regard, Mr

Inkster has been progressively worn down by finding

himself in an adversorial role since the Ash Wednesday

disaster, particularly in relation to his claim against ETSA.

This has influenced his attitudes which have spilt over into

the work environment. Similarly, they have contributed to a

significant degree to the breakdown of his marriage. Thus,

Mr Inkster's symptoms do not make him unemployable.

I believe that it would be unadvisable for him to be invalided

out on the basis of his current psychological symptoms.

Ultimately, I believe Telecom has to make a decision about

his capacity to function in the work environment and on

these grounds a decision should be made about his future.

However, it is important that they take into account the

difficulties which he has had consequent upon the fire.

Thus his underlying disorder would contribute significantly

to his current disability. However, his personality would

appear to be the major factor influencing his current

difficulties, but this would not have come to the fore in such a

major way if he had not been so adversely affected by the

Ash Wednesday bushfires.

It is also possible, that once his case has been settled by the

courts, and his future is much more predictable, that Mr

Inkster will again be more settled in his attitudes and

behaviour. It would be in this man's interests, if a permanent

decision could be delayed until such time as the legal

proceedings have been completed."

10. On receiving the report, Dr Le Poidevin contacted Mr Garland and requested to meet with representatives of Telecom which he did on 5 October 1988. On this occasion Mr Garland and Mr Francis were present and informed Dr Le Poidevin that Telecom had decided that the applicant could not function in the workforce. On 6 October 1988 Dr Le Poidevin conveyed this information to Dr McFarlane who expressed the further opinion that if the applicant could not function within the requirements of his employment classification, then it followed that there was a medical explanation. If he were to be retired, his retirement should be on medical grounds. His inability to function was not related solely to his personality even though it was the major contributing problem.

11. Consistently with Dr McFarlane's further opinion, Dr Le Poidevin on 7 October 1988 completed the medical examination assessment forms by ticking boxes to indicate his opinion that:

"I consider that the examinee is unfit for continued

employment and should be retired on the grounds of

invalidity but may, in due course, partially or completely

recover and become fit for some form of Commonwealth

employment. Review 18 months."

The form with this opinion was submitted to Dr Greacen who endorsed it as "Advisor to The Commissioner for Superannuation". The form was then forwarded to Telecom.

12. A delegate of Telecom, without further reference to the applicant, determined that he should be retired on the ground of his invalidity pursuant to para 56(1)(c) of the Telecommunications Act, effective from 6 February 1989 when his sick leave expired. The applicant was advised of this decision on 20 October 1988.

13. The applicant sought a review of this decision, and also requested Telecom to defer his retirement date to 18 May 1989. The latter request was agreed to.

14. A right of review of a decision of Telecom is given by sub.s.56(2), and is provided for in Part V of the Telecommunications Regulations. The validity of these Regulations was upheld by a Full Court in Australian Telecommunications Commission and Ors v. Colpitts [1986] FCA 257; (1986) 12 FCR 395.

15. A review tribunal ("the tribunal") was established under the chairmanship of Mr R.D. Oaten from whom affidavits have been accepted into evidence. There is no challenge raised in these proceedings to the conduct of the tribunal in carrying out the review, or to its decision. On 3 November 1988 the tribunal wrote both to Telecom and to the applicant explaining the procedure for the review, and seeking submissions. The applicant was informed that the tribunal would be particularly interested in any medical or other evidence he had supporting his case.

16. Many oral communications between the applicant and the office of the chairman of the tribunal occurred in the following months. In light of the eventual outcome of the review, and submissions that have been advanced before this Court, it is necessary to make reference to some of these communications relating to the topic of additional medical evidence regarding the applicant's current state of health.

17. In December 1988 a from the industrial organisation representing the applicant contacted the tribunal,through its secretary, and said that the applicant had received a large insurance payout, and that the applicant now felt his position had changed. A file note raised by the secretary to the tribunal records that on 9 December 1988 Mr Lee informed the tribunal that "Mr Inkster has appointment with Psychiatrist next week, if any great changes, he may request re-assessment with CMO." On 13 January 1989 the applicant informed the tribunal that he "needs to get new medical reports before hearing". On 23 January 1989 he informed the tribunal: "His Psychiatrist has seen Telecom's Reports and does not agree with the CMO report. Mr Inkster does not feel that his situation has changed since his last Psychiatrist visit and will not be seeing him before hearing". At that stage a preliminary hearing was anticipated within a few days, as soon as it could be arranged. The file note just set out should be understood in that context.

18. On 14 February 1989 the applicant again contacted the tribunal. According to the tribunal's file note "He advised he has written a letter to Commission (to be posted tonight or taken in tomorrow afternoon) seeking information, verifying sick leave and requesting to go to the CMO before R/T Hearing. He feels his condition is now totally different because of insurance payout of $260,000 and home situation..." The applicant asked whether at the preliminary hearing the tribunal could request that he "go to the CMO" before the review hearing. On 15 February 1989 there was a further communication. The tribunal's file note records (with abbreviations expanded):

"Mr Inkster rang back. He mentioned that he was on sick

leave last year (April-November) and when his situation

changed he went back to work and requested that he be sent

to the CMO in November. The Commission told him that the

R/T Board would request he go to the CMO if

required...Therefore he feels if he requests to go to the

CMO through the Commission they may refuse to send him.

I advised him that the course of action he takes is up to him

but if he does have conflicting medical reports the Board

could request that he go to the CMO".

19. The preliminary hearing took place on 27 February 1989. Again the procedure was explained, and the applicant was informed by the tribunal that he should consider providing additional medical evidence.

20. It seems that on 28 February 1988 the applicant sent the proposed letter to Telecom to which he made reference in his discussion with the secretary to the tribunal on 14 February 1988, and in that letter raised the topic of his being re- examined. The Commission's reply to him by letter dated 17 March 1989 includes the following passages (to which I have added emphasis):

"Following your return to work on 5.12.88 you were

instructed to leave pending a determination over-riding the

retirement decision. Despite numerous attempts I finally

spoke to you by phone on Tuesday 6 December. You were

advised the CMO had made the recommendation to retire

you with a review period of 18 months. As you had lodged

an appeal against the decision it would be up to the Appeals

Board to determine whether a re- examination was

warranted. At that stage the Appeals Board was waiting for

you to confirm an available date for your appeal.

Point 3:

The Appeals Board has the power to consider changed

circumstances and decide if a re-examination is necessary."

21. In response to the tribunal's requests for submissions on 21 November 1988 Telecom lodged a written submission with the tribunal. A copy was given to the applicant at that time. This submission attached medical assessments from the 1986 and 1988 examinations, formal details of the applicant's employment and his absences on sick leave, and the statements about the applicant's work performance prepared by Mr Matters and Mr Brazil in 1986, and by Mr Francis in 1988.

22. The tribunal met to conduct the review on 6 and 26 April 1989. The applicant was interviewed, and Mr Lee made a statement on his behalf. The applicant also submitted a written statement of some 200 pages which dealt at great length with the allegations made by his supervisors about his work performance (which allegations the statements sought to refute) and with his personal, financial, and domestic situation. In addition the applicant tendered two medical reports from Dr Howie dated 7 April 1989 and Dr Harley dated 13 April 1989. These reports dealt with the applicant's leg injury from 1986.

23. On 27 April 1989 the tribunal published to the parties a written statement in the nature of a recommendation. Before this Court it has been common ground that the statement was not intended by the tribunal to be, and was not, its final decision on the review. In material parts the statement said:

"Included in the documents submitted to the Tribunal, were

additional reports from Professor Howie, Doctor Harley and

Doctor McFarlane of the Flinders Medical Centre. In light

of the medical reports and the uncertainty as to whether all of

these reports have been considered by the Commonwealth

Medical Officer, the Tribunal recommends the following

course of action to the Commission:

In order to have the matter completely clarified,

Telecom ideally should refer Mr Inkster to the

Senior Commonwealth Medical Officer for further

medical assessment, taking into account all of the

documented medical evidence and should also take

into consideration that Mr Inkster has now recieved

(sic) a large payment from E.T.S.A. in settlement of

his bushfire claim.

There does appear to be some conflict in the

opinion of some of the medical practitioners and it is

thought that these matters need to be addressed and

specifically commented upon by the Senior

Commonwealth Medical Officer."

The report from Dr McFarlane referred to was that which had been received by Dr Le Poidevin. The report from Dr Harley made no reference to the bushfire claim. Dr Howie in his report said he was unable to comment on any psychiatric problems that may be associated with the bushfires as that was outside his area of expertise.

24. The tribunal's statement that further assessment should take into account that the applicant had received a settlement of his bushfire claim raised an issue for medical assessment which was independent of the new medical information about the leg injury provided by the two fresh medical reports.

25. On 9 May 1989 Telecom forwarded the tribunal's statement and the two fresh medical reports to the Department of Health with a request that a CMO "co-ordinate a review of this case and make a recommendation to Telecom in light of the new information." A senior medical officer, Dr Gormly, read all the information on file relating to the 1986 and 1988 assessments of the applicant, but did not contact the applicant. On 11 May 1989 Dr Gormly wrote to Telecom. I set out his letter in full:

"I refer to your memorandum of 9 May 1989.

At your request I have considered the medical

recommendation made in Mr Inkster's case in the light of

additional medical reports supplied. These are reports of (1)

Prof D W Howie 7/4/89, and (2) Dr H Harley 13/4/89.

Both reports relate to a medical condition which dates back

to 1986 and which is not now an active problem. The

condition mentioned in these reports does not in any way

relate to the retirement incapacity which is the condition

detailed in Dr A C McFarlane's report of 29/9/88. This latter

report was considered by the examining CMO in making his

recommendation. Thus although new medical information is

available I do not consider it relevant in determining Mr

Inkster's fitness for duty.

The advice of the Commonwealth Medical Officer was based

on his own assessment of Mr Inkster together with written

and verbal advice from the treating specialist, Dr McFarlane.

I see no reason to vary the recommendation in any way,

based on information put to me, nor do I consider that a

medical re-examination of Mr Inkster at this stage would

serve any useful purpose, unless there is compelling new

and relevant medical information.

Please contact me if you have any questions."

26. It will be noted that Dr Gormly's letter deals with the relevance of the two fresh reports concerning the leg injury. He correctly points out that the leg injury was unrelated to the retirement incapacity. His letter however does not give an assessment of the applicant's present medical condition taking into consideration the settlement of the bushfire claim. On the contrary, his letter begs the question on that topic. The obvious point of the tribunal's recommendation was to ascertain if the fact of the settlement had brought about a change in the applicant's psychiatric condition. If it had, that would be new and relevant medical information - possibly of a compelling kind. Yet Dr Gormly dismissed the need for the examination which was intended to ascertain that information on the ground that he did not have the information.

27. On or about 11 May 1989 the tribunal received Dr Gormly's letter under cover of a letter from Telecom saying that in light of Dr Gormly's recommendation Telecom wished to proceed with the applicant's retirement on the ground of invalidity. The tribunal reconsidered the matter and on 17 May 1989 published a further statement in writing containing its decision. That statement, in material parts reads:

"The Review Tribunal interviewed Mr Inkster on 6 and 26

April 1989 after a preliminary hearing on 27 February 1989.

Following consideration of all the evidence (re submission of

the medical reports to the Commonwealth Medical Officer

and his further report 9 May 1989) it is the unanimous view of

the Tribunal as follows:

a) The decision of Telecom Australia (SA Administration)

to retire Mr Inkster under Section 56(1)(c) of the

Telecommunication Act was correct.

b) There are no positions available which would be

suitable for Mr Inkster and as no medical evidence

has been produced which would allow the

Commonwealth Medical Officer to change his

opinion of Mr Inkster's condition, the retirement

should proceed on medical grounds.

c) It was anticipated that Mr Inkster would see the

Commonwealth Medical Officer. However this

action was negated in the Commonwealth Medical

Officer's letter dated 9 May 1989."

28. On the same day as this statement of decision was published, Telecom advised the applicant that he would be retired from the service effective from 19 May 1989.

29. It is clear on the evidence before this Court that on 17 May 1989, before the tribunal published its decision, the chairman endeavoured to contact the applicant to enquire if he had been provided with Dr Gormly's report. The chairman was unable to contact him, but, according to a letter dated 22 June 1989 from the chairman to the applicant, the chairman "confirmed through other sources" that this had occurred. The "other sources", presumably, was an officer of Telecom, yet the affidavit of Mr Garland discloses that Dr Gormly's report was not posted to the applicant until 16 May 1989. In the ordinary course of post it is most unlikely that the applicant would have received the report before the tribunal's decision was published. I accept the applicant's evidence that he did not receive Dr Gormly's report before the decisions of the tribunal and Telecom were made.

30. The applicant says that when he received the tribunal's statement dated 27 April 1989 he anticipated that Telecom would arrange for him to be medically examined. I accept his evidence in that respect. The evidence also discloses that the applicant at about that time was seeking an up to date opinion from Dr McFarlane. On 22 May 1989 Dr McFarlane wrote to Dr Gormly as follows:

"I have been contacted by Mr John Lee of the Telecom

Workers Union about providing information concerning Mr

Stafford Inkster. I understand that you are reviewing his

case following an appeal Mr Inkster made concerning his

dismissal. Mr Lee stated that you were wanting an opinion

from me as to whether his condition has altered in the resent

past.

I am wondering if you could let me know the specific

questions that you were wanting answered.

In general, it appears that Mr Inkster's post-traumatic stress

disorder symptoms are not a major source of disability at

present. His symptoms have declined significantly over the

last two years. During this time, his absence from work has

not been a consequence of his post-traumatic stress disorder.

His absence from work relates to the leg injuries that he has

suffered during this time. His psychiatric state alone cannot

render him unemployable at present."

31. The review procedure laid down in Part V of the Telecommunications Regulations is not "a full and comprehensive appeal": see the observations of Burchett J. in Colpitts v. Australian Telecommunications Commission and Ors (1986) 9 FCR 52 at 65 and Wilcox J. in Reid v. Australian Telecommunications Commission (1988) 23 IR 96 at 103-104. When the applicant sought a review he was obviously aware that Telecom retained the power, after the tribunal gave its decision, to reject the recommendation of the tribunal if it were in his favour. The applicant raised this matter with the tribunal and with Telecom before the hearing commenced. Telecom agreed that it would abide by the decision of the tribunal, and the tribunal was made aware of this agreement.

32. The applicant contends that the first decision of Telecom, made on 20 October 1988, is invalid for procedural irregularities, and that the defects in the first decision have not been cured by the review process. It is contended that Telecom, in breach of the requirements of natural justice, took into account information in reaching its decision which was not disclosed to the applicant, and in respect of which he was given no opportunity to answer.

33. The items of information said to have been withheld from him concerned the following:

A. The statement of Mr Brazil prepared on 15 September 1986, a report or reports by Mr Francis on the counselling of the applicant in 1986, the letter of Mr Francis dated 11 August 1988 provided to the CMO, and allegations of poor ongoing work performance since 1986. The allegations of poor work performance were made by Mr Francis in his letter. It is quite clear that this letter was given to the applicant before he was examined by Dr Le Poidevin. The dissatisfaction of Telecom with the applicant's work performance had been expressed to him at the meeting at his home on 6 July 1988. The assertions of the applicant made in evidence before this Court that he was unaware that Telecom was considering his retirement is contrary to all the other evidence and must be rejected. It is clear from the eight page document which the applicant handed to Dr Le Poidevin that he well understood the complaints about his work performance and that he knew Telecom was considering his retirement.

B. The applicant was not informed that Mr Francis and Mr Garland had met with Dr Greacen on 19 August 1988, and was not informed of the information given to the doctor by them. This complaint was mainly pressed on the challenge to the conduct and alleged decisions of the second respondent constituted by the actions of the CMOs. However the complaint was also directed to the conduct of the managers of Telecom which led to Telecom's first decision, and it is convenient to deal with the issue at this point.

34. The forms for medical examination and assessment which Telecom used reflect the careful preparation of comprehensive procedures designed to ensure procedural fairness to the officer or employee who is to be examined. The forms require those in Telecom arranging the examination to make available to the examinee the departmental statements which are placed before the medical officer. These procedures are intended to ensure that the examinee is fully informed. However well meaning the intentions of Mr Francis and Mr Garland may have been in meeting Dr Greacen before the applicant's examination, that step was most unfortunate. Oral communications, and communications which are not disclosed to the examinee, create a potential for suspicion and controversy as to what was said if the communication later comes to light, as they did in this case. Such communications may in some circumstances lead to substantial unfairness and injustice, and undermine the carefully designed scheme which the forms for medical examination and assessment reflect. Fortunately, Dr Greacen made full notes of what he was told, and he was not the doctor who conducted the examination. The examining doctor, Dr Le Poidevin, only received the written notes of Dr Greacen and it is therefore possible for the Court to know what information was revealed to him. That information, in my opinion, did not raise any relevant new issue which was not otherwise disclosed either in the departmental statements provided to the applicant, or by the applicant himself during his examination. In the circumstances of this case I do not think the oral communications caused any procedural unfairness. C. The applicant complains that he was not shown Dr McFarlane's report, was not informed about Telecom's statement to Dr Le Poidevin on 5 October 1988 that he was incapable of functioning in the workplace, and was not informed about Dr Le Poidevin's discussion with Dr McFarlane on 6 October 1988. Again, these complaints are directed mainly to the impugned conduct of the second respondent by its servants, the CMOs. Further, the applicant complains that he was not made aware of the outcome of the medical examination and assessment as recorded by the CMOs in the form sent to Telecom on 7 October 1988 before Telecom made its decision to retire him.

35. In combination these matters in my opinion constitute a failure to give natural justice. The failure occurred between the time when the medical opinions became known to Telecom, and the making of the decision to retire the applicant based on those opinions. I consider the applicant should have been made aware of the opinions of Dr McFarlane and the CMOs before Telecom's decision was made. He should have been given the opportunity to answer the information which was placed before the decision-maker in Telecom. The 8 page statement prepared by the applicant in answer to Mr Francis' letter of 11 August 1988 had been given only to Dr Le Poidevin, and not to Telecom. The medical opinion was to the effect that the applicant's medical condition was not itself sufficient to render him incapable of performing his duties. Whether grounds existed which justified his retirement under para 56(1)(c) depended, critically, not on that medical opinion, but on a finding of fact that the applicant was not capable of functioning in the work environment. That was a matter which required the decision of the delegate of Telecom whose function it was to decide the fate of the applicant. It was known to Mr Francis and Mr Garland that the applicant did not accept all the criticisms made by his supervisors. In the events which happened the applicant was not given an opportunity to answer to the decision-maker about the evaluation of his work performance made by his supervisors. I am not persuaded that had he been given the opportunity to do so the decision-maker may not have come to a different view.

36. The obligation on Telecom to bring this issue to the attention of the applicant, and to give him an opportunity to be heard before terminating his employment, is covered by the principle adopted in Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40. In Kioa and Ors v. West and Anor [1985] HCA 81; (1985) 159 CLR 550 at 582 Mason J. formulated the principle which was applicable in these terms:

"It is a fundamental rule of the common law doctrine of

natural justice expressed in traditional terms that, generally

speaking, when an order is to be made which will deprive a

person of some right or interest or the legitimate expectation

of a benefit, he is entitled to know the case sought to be

made against him and to be given an opportunity of replying

to it: Twist v. Randwick Municipal Council (1976) 136 CLR

106 at 109; Salemi (No. 2) [1977] HCA 26; (1977) 137 CLR 396 at 419; Ratu

[1977] HCA 35; (1977) 137 CLR 461 at 476; Heatley v. Tasmanian Racing and

Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 498-499; FAI

Insurances Limited v. Winneke [1982] HCA 26; (1982) 151 CLR 342 at 360,

376-377; Annamunthodo v. Oilfields Workers' Trade Union)

(1961) AC 945. The reference to 'right or interest' in this

formulation must be understood as relating to personal

liberty, status, preservation of livelihood and reputation, as

well as to proprietary rights and interests."

See also Colpitts v. Australian Telecommunications Corporation (1986) 9 FCR 52 at 64-67 and Reid v. Australian Telecommunications Corporation at 103.

37. It is understandable that when Dr Le Poidevin received Dr McFarlane's report he would have been interested to know what decision Telecom would make about the applicant's capacity to function in the work environment. However that was not a medical question. The explanation for his failure to so function, if that were the decision of Telecom, was a matter for medical opinion, but the critical decision was one of fact to be made by Telecom. Had the medical opinion proffered by Dr Le Poidevin been expressed in the terms that if Telecom made the decision that the applicant was incapable of functioning in the work environment, then it would be proper to retire him on the ground of invalidity as his incapacity was contributed to by medical causes, the real issue which fell for determination by the decision-maker would have been more readily apparent. However in the course which events took, that question was effectively decided, not by the appropriate delegate whose function it was to decide whether the applicant would be retired, but by Mr Francis and Mr Garland. The formal recommendation of the CMOs effectively clouded the real issue, and obscured the need to give the applicant the opportunity to make answer to the criticism of his work performance.

38. The applicant also contended that the first decision of Telecom was rendered invalid by a contravention of guidelines entitled "Medical Guidelines for the use of CMOs" promulgated pursuant to s.76X of the Public Service Act 1922 relating to the conduct of medical examinations. In my opinion these guidelines had no relevant application to the examination of the applicant and a breach of them would not constitute a failure to observe a procedure required by law to be observed in connection with the making of a decision under s.56 of the Telecommunications Act, so as to bring the matter within para.5(1)(b) of the ADJR Act. Even if the guidelines lay down procedures "required by law to be observed" in connection with medical examinations to which they apply (and it is not necessary to decide if this is so) the guidelines relate to people whose employment is regulated by the Public Service Act. The applicant was not employed under the Public Service Act. He was employed as an officer under the Telecommunications Act.

39. In any event, the contraventions of the guidelines alleged are said to have occurred as the applicant was not informed of his right to be provided on request with information furnished by others to the CMO conducting the examination, and of his right to submit material to the CMO for consideration. I am satisfied that the applicant was well aware of these rights. In fact he exercised his right to place material before Dr Le Poidevin. I think it is probable that the applicant assumed that he had been supplied with all the information placed before the CMO by Telecom and for that reason did not request to see it. This was not an unreasonable assumption on his part. I have already commented on the unfortunate step taken by Telecom to convey information orally to a CMO which was not disclosed to the applicant, but in the circumstances of this case this led to no unfairness.

40. The applicant has established a failure to give natural justice in respect of the first Telecom decision. The right of review given to the applicant by the Telecommunications Regulations does not excuse the obligation of Telecom to follow the requirements of natural justice: Reid v. Australian Telecommunications Commission at 103. Further, in both Colpitts before Burchett J. at 65-67 and in Reid at 104 it was held in the circumstances of those cases that by pursuing the right of review defects in the original decision were not cured by the review process. In both those cases the circumstance that the right of review provided less than a full and comprehensive appeal because the review tribunal could not substitute its own decision for that of the decision maker after a full hearing was an important consideration. In the present case counsel for Telecom contends that the agreement reached between the parties that the tribunal would in fact decide the outcome provides a ground for distinguishing Colpitts and Reid. Counsel contends, upon the authority of Calvin v. Carr [1979] UKPC 1; (1980) AC 574 at 592-593, that having regard to the course which the review hearing took, this Court should hold that at the end of the day there has been a fair result reached by fair methods such that any defect in the original decision making process has been cured. Essential to this submission is a finding that the review by the tribunal did in fact provide a full and fair hearing which led to a fair result, and to a result which determined the rights of the applicant according to the proper application of the criteria upon which retirement under para 56(1)(c) is conditioned. It is necessary to determine whether this occurred before further considering the submission that the defects in the first decision have been cured.

41. I have already observed that the decision of the tribunal is not the subject of review in these proceedings. But as Telecom agreed to abide by the decision of the tribunal, and to exercise its power under reg.35(2) by adopting the tribunal's decision as its own without further consideration, I consider any defect in the decision of the tribunal becomes a defect in the consequential decision of the tribunal.

42. There can be no doubt that the tribunal conducted the review in a very thorough and sympathetic way in what was a difficult case up to the publication of its statement on 27 April 1989. To that date the applicant was given a full opportunity to canvass the issues raised before the tribunal. No criticism can be levelled at what occurred to that point in the review. However I consider a serious error occurred after that date when the applicant was not given notice of Dr Gormly's letter of 9 May 1989, together with an opportunity at that stage to present medical evidence as to his present condition before the tribunal made its decision. Contrary to the belief of the chairman of the tribunal, the applicant had not been provided with the report. It should have been sent to him by Telecom at the same time as it was sent to the tribunal.

43. The tribunal had been at pains to inform the applicant that he could, during the hearing, provide further medical evidence if he wished to do so. The applicant may have misunderstood the thrust of the tribunal's suggestion as the further medical evidence which he did provide concerned his leg injury and not his psychiatric condition. Counsel for Telecom submits it was not the tribunal's responsibility to make the applicant's case for him: Prasad v. Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 170, Singh v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4 at 9. The statements of principle in these cases must however be applied cautiously where, in a case like the present one, the tribunal is directed by its governing legislation to conduct a "full review". Where information placed before the tribunal by the party seeking the review suggests the need for investigation a "full review" may require the tribunal to pursue that investigation: cf Finch v. Goldstein [1981] FCA 132; (1981) 36 ALR 287 at 305 and Waniewska v. Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 at 301. As the applicant was given several opportunities to place relevant medical evidence before the tribunal prior to and at the hearings in April 1989, it is submitted by counsel for Telecom that he should not now be heard to complain that he was not given another opportunity to do so in May 1989. However I do not think that this submission gives due weight to the various communications which the applicant had on the topic of him being re-examined with the tribunal and with Telecom from the time that the review was instituted. Telecom's letter of 17 March 1989 in particular would have led the applicant to believe that if the tribunal considered an up to date psychiatric assessment was necessary, the tribunal would direct that it take place. In a practical sense, the applicant's difficult financial position, which continued even after the bushfire settlement, would have deterred him from incurring the expense of a psychiatric report if there were a prospect of it being obtained by Telecom at the direction of the tribunal. I accept the applicant's evidence that after 27 April 1989 he expected that such a report would be obtained. Had he been informed that Telecom did not intend to obtain a report in response to the tribunal's recommendation I think it is probable that he would have done so.

44. It is submitted on Telecom's behalf that the applicant has not established that a further medical report from Dr McFarlane would have changed the circumstances disclosed by the evidence before the tribunal. It is submitted that the extensive catalogue of woes set forth by the applicant in his 200 page statement submitted to the tribunal demonstrates that the various factors which had caused him stress in the past were still present. In particular, after the bushfire settlement his debts were still in the order of $150,000. But it does not follow that by May 1989 his state of mind had not improved. The bushfire settlement could have alleviated feelings of anger and frustration engendered by the earlier perceived conduct of ETSA. Dr McFarlane's letter of 22 May 1989 suggests that there had been improvement, and the applicant himself was saying in 1989 that his condition had improved.

45. The letter from Dr Gormly had the result that the tribunal no longer urged an assessment of the applicant's present medical condition taking into account the effect of the bushfire settlement. Rather, it seems that the tribunal proceeded to determine the review on the evidence before it which concerned the applicant's work performance before Telecom's first decision was made on 20 October 1988, and his medical condition at that time. The language of the tribunal's decision leaves open the real possibility that the tribunal considered the correctness of Telecom's decision as at 20 October 1988. The decision in para.(a) reads:

"The decision of Telecom (S.A. Administration) to retire Mr

Inkster under section 56(1)(c) of the Telecommunications Act

was correct."

46. I agree with the opinion of Burchett J. expressed in Colpitts at 68-69 that upon a review under the Telecommunications Regulations a full enquiry is contemplated into the position at the time of the review, not merely at the time of the decision. In my opinion this did not occur, and could not meaningfully occur in the absence of a current psychiatric assessment. Had the applicant been informed of Dr Gormly's letter, and been made aware that Telecom did not intend to follow the tribunal's recommendation, there is good reason to think that the applicant would have taken steps to ensure that an up to date assessment occurred. A review based on the applicant's state of health in May 1989 may have led the tribunal to a different conclusion.

47. I consider that the applicant was not given natural justice when Dr Gormly's letter was withheld from him until after the decisions of the tribunal and Telecom were made on 17 May 1989. In my opinion the decision of Telecom made on 17 May 1989 should be set aside.

48. It follows from what I have said that the applicant was not accorded a full and fair review of Telecom's first decision, nor was the decision of the tribunal based on an assessment at the time of the decision of the criteria upon which retirement under para 56(1)(c) of the Telecommunications Act is conditioned. In these circumstances the submission cannot succeed that the defect in Telecom's first decision has been cured by the review process. There remains the question whether in the exercise of the discretion given to the Court by s.16 of the ADJR Act the first decision of Telecom should also be set aside. As the tribunal is not a party to these proceedings, and as the tribunal's decision is not directly challenged, I am in doubt whether the Court has power to refer the matter back to the tribunal for further consideration. Even if this could be done, the main enquiry before the tribunal would be as to the ability of the applicant at the time of the further hearing to discharge the duties of his position, or some other available position. In these circumstances I consider the first decision should also be set aside. A fresh consideration of the matter in light of the present position may lead the decision-maker in Telecom to a course of action other than retirement.

49. It remains to consider the applicant's case against the second respondent based on the activities of the CMOs which are said to constitute "conduct for the purpose of making a decision to which this Act applies" within sub.s.6(1) of the ADJR Act, and on the written statements of the CMOs made on 7 October 1988 and the letter of Dr Gormly dated 9 May 1989 which are said to be "decisions" the making of which come within sub.s.5(1) of the Act. In my opinion the objection to competency raised by the second respondent should succeed. The CMOs were not acting in pursuance of a function immediately or proximately authorised by an enactment: Post Office Agents Association Ltd and Anor v. Australian Postal Commission (1988) 84 ALR 563 at 571. Even if it is accepted that the written recommendations constituted "decisions" those decisions were not made "under an enactment" as required by the definition of "decisions to which this Act applies" in sub.s.3(1). The enactments relied on by the applicant are s.56 of the Telecommunications Act, Division 8C of the Public Service Act, various regulations made under the Public Service Act, and the medical guidelines promulgated under s.76X of the Public Service Act. In my opinion the Public Service Act, and the regulations and guidelines promulgated thereunder, have no application to the applicant. The applicant was engaged as an officer in the Service under the Telecommunications Act. His purported retirement was governed by that Act, not the Public Service Act. As for s.56 of the Telecommunications Act, that section makes no reference to medical examinations. There is no requirement in the Telecommunications Act or in the regulations thereunder requiring a medical examination. No by-law rule or instrument has been proved in these proceedings which requires a medical examination to be performed in connection with a proposed decision under s.56, or which obliges an officer or employee in the Service to attend a CMO or other medical practitioner on request or in any particular circumstance. It is possible (although it has not been proved) that an obligation rested on the applicant to attend a medical examination arising from the terms and conditions of his engagement determined by Telecom under s.43 of the Telecommunications Act, but in this event the medical examination would not be one arranged or conducted in pursuance of a power arising under an enactment: see Australian National University v. Burns [1982] FCA 191; (1982) 43 ALR 25 at 31-33, 38, Glasson v. Parkes Rural Distributions Pty Ltd [1984] HCA 49; (1984) 155 CLR 234 at 241 and Australian Film Commission v. Mabey [1985] FCA 121; (1985) 6 FCR 107 at 115-116.

50. Instead of arranging an examination by a CMO from the Department of Health, Telecom could have arranged an examination by a medical specialist in private practice. Had Telecom taken this course, and assuming that the applicant consented to attend, I think it would be plain enough that a report from the specialist would not be one made or required to be made under an enactment. The specialist would have been instructed by Telecom in exercise of Telecom's general administrative power to carry out matters incidental to the performance of its functions: see N. MacDonald Pty Ltd v. Hamence [1984] FCA 11; (1984) 1 FCR 45 at 50; Taranto (1980) Pty Ltd v. Madigan and Anor (1988) 81 ALR 208 at 212. The specialist would have carried out the medical examination, and given his opinion, pursuant to the instructions so received. I do not think it made any difference that Telecom utilised the services of CMOs.

51. In my opinion the application for review against the decisions of Telecom made on 20 October 1988 and 17 May 1989 to retire the applicant from the Australian Telecommunications Commission Service pursuant to para 56(1)(c) of the Telecommunications Act should be set aside. There will be an order accordingly. I will hear the parties as to what other consequential orders should be made as between the applicant and Telecom.

52. I consider the application against the second respondent should be dismissed.

53. I will hear the parties on the question of costs.