Trindall v NSW Commissioner for Police [2005] FMCA 2

Federal Magistrates Court of Australia|2005-02-07

The Applicant was hospitalized for two days St Vincents Hospital.

It would appear that the Applicant returned to Narrabri and had to supply a blood sample to the Police Medical Officer (PMO). It would appear on the evidence that at his consultation in Narrabri he was not informed that his condition, or his collapse was related to the sickle cell condition (See: Transcript 28 June, 2004 Pg. 66-68.3).

4. On 28th September, 2000 the Applicant's brother, Rodney Trindall, was involved in an altercation. He was admitted to Narrabri Hospital. On 30th September, 2000, Rodney Trindall was transferred to Tamworth Hospital. On 2nd October, 2001 Rodney Trindall passed away (See: Trindall parag. 11).

5. I refer to the Affidavit of, White, Parag.7 (See: Transcript 29 June, 2004 pg. 25.8-27.1).

6. The Applicant provided two (2) statements dated 3rd & 17th October, 2000 (See: White parag. 7 Annexure A).

Both statements were supplied to the Coroner and formed part of the brief of evidence tendered to the Coronial Hearing. The Applicant was emotionally upset of the death of his brother, Rodney Trindall (See: Transcript 29 June, 2004 pg. 27.2).

7. As a result of that death, the Applicant was moved by the 7th October to provide a detailed report to the Coroner dated 7th October, 2000 (about 5 days after the death of his brother).

8. The Applicant involved himself in telephone calls, letters and faxes to the Glebe Coroner's Court in respect to that death (See: Transcript 29 June, 2004 pg. 27.6; White parag. 9 Annexure C; Transcript 29 June, 2004 pg. 28.4-41.1).

9. In a letter addressed to the Glebe Coroner's Court dated 7th October, 2000 the Applicant exhibits a detailed knowledge of the blood disorder called sickle cell trait. In the said letter to the Coroner, he recalls his own experience in 1995, and reflects a self-diagnosis where he states: "Even though the treating doctor diagnosed dehydration, I know myself, later, that I had a sickle cell shut down" (See: White Annex. C pg.2).

10. He further states in the said letter: "I am no doctor and hope that I don't come across as being cocky, but to me, Rodney displayed classic signs of having a sickle cell attack or shutdown. Upon seeing Rodney in hospital the next day, I even mentioned for him to come home and rest due to my experience and previous incident. Further, I am concerned that this issue of sickle cell will not be investigated fully" (See: White Annex.C pg. 2).

11. His letter reflects his knowledge of the condition, his stress, frustration and his distress in respect to the death of his brother.

12. He is plainly concerned as to how that condition played a part in the death of his brother. In respect to his brother's death, he was frustrated (See: Transcript 29 June, 2004, pg. 37.8) and as a result of that, he was having a number of discussion(s) with the Glebe Coroner's Court and he spoke to Dr Helen Hugo and to other people (See: Transcript 29th June, 2004 pg. 37.8-40).

13. The Applicant also went down to Sydney to discuss the situation with a counselor at the Coroner's Court (See: Transcript 29th June, 2004 pg. 38.3) and further he had a discussion in respect to Coroner Abernathy in respect to Rodney's sickle cell trait (See: Transcript 29th June, 2004 pg. 38.7).

14. Whether it be correct or not, the Applicant held the belief that in 1995 he also suffered a sickle cell shutdown (See: White Annexure C pg. 1.9-2.2; Transcript 29th June, 2004 pg. 32.5-34.3).

15. It is submitted, beside other matter(s) that were occurring in the Applicant's life, he was completely distraught as a result of his brother's death and showed a fear, concern that sickle cell trait played a large part in his death. Further, it is submitted by October, 2000 the Applicant was also extremely concerned in respect to his own personal situation regarding sickle cell trait, in respect to his employment.

16. The Autopsy report on the death of Rodney James Trindall was tendered (See: Transcript 29th June, 2004 Exhibit R1-Autopsy Report dated 27th November, 2000 pg. 3.3). The Autopsy report was prepared by Dr Ellen Sugo, Pathology Registrar. It was found the direct cause leading to the death was complications of a sickle cell trait. The report summary states: "This 33 year old male, Rodney Trindall, has died from complications of sickle cell trait". Under the heading Comment it states inter alia: "the macroscopic and histological findings are in keeping with the clinical history of multi-organ failure". That autopsy report has been prepared by Dr Sugo, the Pathology Registrar and Dr A Rodiguez, Neuropathologist.

17. It is submitted that the Applicant would be emotionally concerned in respect to the deliberation over the death of his brother. However, because of their congenital blood disorder, the Applicant sought to provide assistance and information to the Coroners Court, in its deliberation. The Coroner's report has not been attacked in respect to its findings. The medical specialists are clearly of the opinion that his death occurred from complications of sickle cell trait. The Applicant was aware of the circumstances surrounding his brother's death (See: White parga. 7 Annex. A & B). The Coroner's report was not tendered by the Applicant, and it is submitted it exposed facts unfavourable to the Applicant's position (See: Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298, 320-321).

18. The Applicant was aware that his brother had been involved in a violent situation, where according to the Autopsy Report brought on complications of sickle cell trait. The Applicant in his capacity as a serving Police Officer was well aware that in the carrying out of his daily duties he was exposed to continual violent situations in the carrying out of his normal duties.

19. It is reasonable to conclude by 9 October, 2000 that Constable Trindall, in his chosen occupation, considered that his work environment he placed himself in a situation where he too could suffer a sickle cell complication causing death.

20. In late or early, 2001 Inspector Cairncross had a conversation with Mr Gary Trindall, uncle of Rodney Trindall, being informed: "I have concerns regarding the impact of the coronial investigation in relation to Rodney upon Bradley. Constable Trindall has a medical condition called sickle cell and there is a possible link between the death of Rodney and sickle cell" (See: Cairncross parag. 6 & 7).

21. In cross examination Inspector Cairncross advised that Gary Trindall, Constable Trindall's uncle had advised him in or around October, 2000 of his condition (See: Transcript 10th August, 2004 pg. 88.5). It would appear that Gary Trindall raised it with Inspector Cairncross on at least three occasions his concerns between the period October, 2000 and January, 2001 (See: Transcript 10th August, 2004 pg. 88-89).

22. Inspector Cairncross indicated that on the second occasion when it was raised by the Applicant's uncle, Gary Trindall, he showed greater concern in respect to the condition and also discussed the disclosure of the condition. Inspector Cairncross was of the opinion that the second conversation may have taken place on the 4th January, 2001.

23. Inspector Cairncross was of the opinion that he had to report the condition as it could affect his health and wellbeing being a member of the New South Police force. Inspector Cairncross advises that he was asked to keep this information confidential by [the applicant's] uncle Gary Trindall.

24. However, he indicated that he was obligated to report it and did inform Superintendent Gillett. It appears that the Applicant's uncle, Gary Trindall, asked of Inspector Cairncross not to disclose who had supplied the information as he was a family member. Inspector Cairncross indicated, that he would attempt to respect that confidentiality up until the matter came before the Court (See: Transcript 10 August, 2004 pg. 88-89).

25. Further, Inspector Cairncross requested that the Applicant's uncle, Gary Trindall, raise with the Applicant that he should raise the matter with his Commander. In his opinion, because of the level of concern exhibited by Gary Trindall, it should be formally reported (See: Transcript 10th August, 2004 P90.2).

26. The Applicant's uncle, Gary Trindall, is presently still a serving member of the New South Wales Police Service. He has not been called by the Applicant to give evidence, nor was Inspector Cairncross challenged on the concerns raised by the Applicant's uncle, Mr Gary Trindall. It is submitted that the Applicant's uncle, a serving aboriginal officer with the New South Wales Police, was extremely concerned for the Applicant's welfare in respect to his condition as to how it may be affected in his daily working life.

27. As Mr Gary Trindall has not been called, it is submitted that an inference can be drawn that he would not be supportive of the Applicant in his allegations of discrimination against his employer (See: Jones v. Dunkel).

28. Mr Gillett gave evidence on the 11th August, 2004 and is the retired commander of the Barwon Local Area Command (See: Gillett parag. 1-4).

29. Superintendent Gillett, in cross examination, advised the Court that he could not recall Inspector Cairncross informing him of the Applicant's medical condition prior to Christmas 2000. However at a point in time Inspector Cairncross did mention, that the Applicant had a medical condition, but he did not articulate what that condition was (See: Transcript 11th August, 2004 pg. 51.8).

30. It was Superintendent Gillett's recollection that he received an email from Inspector Cairncross about the issue (See: Transcript 11th August, 2004 pg. 52.2).

Superintendent Gillett's recollection was that he did not have an initial conversation with Inspector Cairncross, but received an email indicating that the Applicant may have a medical condition. He indicated that Brad was to return to work on or about 10 or 11 January, 2001, but he had a medical condition that he had been told about in confidence and that Brad, "was to be placed on restricted duties, an email to that effect" (See: Transcript 11th August, 2004 pg. 52.2).

31. It appears that email was sent on the 4th January, 2001 (See: Transcript 11th August, 2004 pg. 52.8-52.9) and admitted into evidence as A5 emailed to Mr Gillett from Inspector Cairncross dated 4th January, 2001 (See: Transcript 11th August, 2004 pg. 59.4).

32. Superintendent Gillett was of the opinion that he did not make enquiry about the nature of the medical condition because of the mention of confidentiality, he felt that he didn't have a right to question that, until Brad (Applicant) made the disclosure (See: Transcript 11th August, 2004 pg. 60.2).

33. The Applicant had been off work since October, 2001 after the Olympics issue. On the 5th January, 2001 he attended the Narrabri Police Station and had a conversation with Inspector Ridley in respect to his return to work. On that occasion he informed Inspector Ridley about his brother's death. Further, that his brother Rodney (deceased) his father and cousins had a genetic blood disorder called sickle cell trait. Inspector Ridley had never heard of this condition and Constable Trindall explained what the condition was. The Applicant explained what had happened to his brother and as a result it triggered a sickle cell attack. He advised of his contact with the coroner and advised Inspector Ridley that he had done a lot of research into sickle cell trait and had passed same onto the coroner. He discussed his collapse at the Sydney Police Centre (Goulburn) where he was taken to hospital and attempted to tell the hospital that he had a sickle cell attack, but they had not heard of it.

34. The Applicant's concern at that time was that he could end up like his brother and he was very concerned if he had got involved in an arrest or long drawn out struggle he could also have a sickle cell attack. At the time he indicated that he was very depressed. Inspector Ridley had the discussion with him, that there was no need for him to stay on the front line, and, that there were successful career avenues in other sections of the Police force, thus removing the risk of physical contact. The Applicant indicated that he would think about that. He was advised by Inspector Ridley that he should inform Commander Graham (Western Region) about his medical condition. It was left on the basis that he would tell Commander Graham about his medical condition on the 19th January, 2001 which was the date of the mediation in respect to his non-attendance at the Sydney Olympics (See: Ridley parag. 17-19).

35. A summary of that conversation set out in Inspector Ridley's diary entry dated 5th January, 2001 and was transcribed (See: Transcript 11th August, 2004 71.5).

36. In cross examination Inspector Ridley indicated that on the 5th January, he arranged a meeting with the Applicant and informed the Applicant that when he returned to work he was to perform station duties up until the 19th January, 2001 where Commander Graham would speak to him in relation to the conciliation (See: Transcript 11th August, 2004 pg. 75.2 Ridley Annex. A).

37. Inspector Ridley was of the opinion that in the background there was an investigation taking place which involved the Applicant and there was a conciliation process between Commander Graham and the applicant to take place on the 19th January. Inspector Ridley gave evidence that he was not aware of the circumstances surrounding the investigation that was being conducted at that time (See: Transcript 11th August, 2004 pg. 76.5-77.2).

38. Inspector Ridley advised that he had no direct knowledge of what was taking place in respect to his return to work at the end of 2001 early 2002 (See: Transcript 11th August, 2004 pg. 75.5).

39. Inspector Ridley's evidence regarding the meeting on the 15th January was strongly contested by Counsel (See: Transcript 11th August, 2004 pg. 80-83.5). Inspector Ridley was confident that he had a good recollection of the conversation that took place on the 5th January, 2000 (See: Transcript 11th August, 2004 pg.83.4).

40. It should be noted that Inspector Ridley said: "Some of the conversation I had with Constable Trindall was information that I had no knowledge of in relation to sickle cell trait it was quite unique and it is that type of conversation, whilst only summarized in my diary, you don't forget it" (See: Transcript 11th August, 2004 pg. 83.8).

41. Inspector Ridley drove the Applicant to Moree in relation to informing Superintendent Gillett of his condition.

42. Inspector Ridley advised the Applicant that he should inform the Superintendent of his medical condition and explain to him what sickle cell is all about (See: Ridley parag. 20-23).

43. Inspector Ridley was of the view that the day he informed Superintendent Gillett of his medical condition it was a different day to the day of the mediation as he did not attend the medication (See: Transcript 11th August, 2004 pg. 85.8).

44. In cross examination in respect to the trip and meeting at Moree, Inspector Ridley didn't record any details. However, he was of the view, what the Applicant told Superintendent Gillett was virtually the same as what he had indicated to him on the meeting of the 5th January, 2001 (See: Transcript 11th August, 2004 pg. 86.8). In his opinion, that was the gist of the conversation that took place with Superintendent Gillett (See: Transcript 11th August, 2004 pg. 87).

45. In the trip across to Moree, Inspector Ridley reiterated the Applicant's concern and he was also concerned in respect to his welfare as a duty officer (See: Transcript 11th August, 2004 pg. 88.7).

46. Inspector Ridley's credit was attempted to be tainted in further cross examination by Mr Gibson. In a past Police Royal Commission he admitted to falsifying entries in his notebook. I raised objection to that subsequently on the 8th August, 2004 (See: pg. 138.4-139) in respect to that belated attack on Inspector Ridley.

47. I would submit that attack was of no probative value, in that his evidence, as given in this trial was not attacked on the basis that he had not told [the Court] the truth.

48. [The Court] had the ability to observe Inspector Ridley in the witness box, and I submit that he answered all questions in a straight forward and truthful manner. In that respect, the matters that he raised are matters that would not within his knowledge, if not advised by the Applicant.

49. I would submit as the medical condition, the facts surroundings his brother's death and his earlier collapse in his recruitment program are all within the knowledge of the Applicant. I would submit that Inspector Ridley has truthfully informed the Court of the conversations that took place between himself and the Applicant in relation to his medical condition and his concerns in relation to his duties as a police officer. There was no attempt to correlate the situation in the Police Royal Commission and the matter before this Court.

50. In respect to that, it should be noted that when that conversation took place, Inspector Ridley held a lower rank and now holds the rank of Inspector. As the matter was apparently before the Police Royal Commission, Inspector Ridley must have the confidence of the Commission as he now holds the rank of Inspector. Therefore what took place before the Police Royal Commission, I would submit, must be seen in the context of not being considered of serious nature. It was certainly never suggested to Inspector Ridley that he was part of some conspiracy to attack the credit of the Applicant, nor was it suggested that Inspector Ridley was part of such a conspiracy with any of the other witnesses who have given evidence on behalf of the Respondent. At the end of the day, I would submit that [the Court] would accept Inspector Ridley as a person of truth in respect to the evidence that he has given before this Court. It should also be noted that the Applicant in his Submission does not attack the credit of Inspector Ridley.

51. Superintendent Gillett (retired) had a conference with the Applicant in the later part of January, 2001 in respect to his medical condition. At the time of his Affidavit he could not recall the exact date. Superintendent Gillett advised that his knowledge of the disease was based on the information that was supplied by Constable Trindall. At the meeting, Superintendent Gillett advised that acting duty officer, Sergeant John Ridley was also at the meeting and he advised that the Applicant informed him that he had done a lot of research into the condition of sickle cell trait. He expressed his concern for his own safety with respect to his duties, bearing in mind a violent confrontation could trigger the condition with similar consequences to his brother (See: Gillett parag. 22, 23, 24).

52. In his evidence, Superintendent Gillett was of the view that the mediation session (Olympic issue) was on the 19th January, 2001 and that this meeting in respect to his medical condition occurred on the following week, either on the 21st or 22nd January, 2001. However, he was not certain of the dates (See: Transcript 11th August, 2004 pg. 55.8-56.1).

53. Counsel for the Applicant suggested that it was Superintendent Gillett who raised the issue of sickle cell first at the meeting. I submit, little turns on this point, however, to suggest, such a proposition at this stage would be a little "odd" considering all of the evidence that the Court has before it, involving the Applicant's concern over the condition. Superintendent Gillett was quite strong on the point that he did not have prior knowledge of this condition. He accepts that he had been informed that the Applicant had a medical condition issue which had been advised to him by Mr Cairncross in confidence however he had not inquired further as to its nature. Further, it was indicated to Superintendent Gillett from Inspector Cairncross he had been told in confidence, and he was waiting for Brad to inform him of this issue (See: Transcript 11th August, 2004 pg. 56.8-57.2).

54. Superintendent Gillett advises that there was a conversation about his condition and he requested a report be put in to him so that the report could be forwarded to the PMO in respect to his concerns (See: Transcript 11th August, 2004 pg. 57).

55. At that time the Applicant was on restricted duties in relation to the station duties as a result of the email that he had received from Inspector Cairncross. (See: Exhibit A4 email to Mr Gillett from Inspector Cairncross; Transcript 11th August, 2004 pg. 58.3-59.4).

56. There appears to be a little confusion as to what occurred after 24th Janaury, 2001.

57. In that regard, Inspector Gillett referred to paragraph 24 of his affidavit where he indicated that the restrictions that were in place prior to the 24th January, 2001 were related to the same matter. In that regard he referred to the medical condition that he had been informed of by Mr Cairncross in confidence in the email that he had received on or about 4th January, 2001 (See: Transcript 11th August, 2004 pg. 58.5-59.5).

58. Superintendent Gillett advised the restrictions that were placed on the Applicant after the 24th January, 2001 where he was to perform station duties that did not expose him to violent or confrontational situations (See: Transcript 11th August, 2004 pg. 62.5).

59. It should be noted that Superintendent Gillett did not place any limitations on the Applicant in respect to shifts and overtime. In respect to this issue the Applicant did not raise any concerns with Superintendent Gillett (See: Gillett parag. 27).

60. As a result of the concerns raised by the Applicant he prepared a report dated 24th January, 2001 (See: Stewart parag. 16 Annex. E; Norris parag. 6 Annex. B; Trindall parag. 24 Annex 3; Gillett parag. 22, 23, 24 Annex. G). The report states the Applicant forwarded the report to Superintendent Gillett for information and further recommendations.

61. As a result of the report dated 24th January, 2001 Superintendent Gillett forwarded it to the Police Medical Section (See: Gillett parag. 25 Annex. H, letter of referral).

62. Superintendent Gillett after he forwarded the report to the PMO he spoke to Dr Norris by phone to inform him of the situation and request urgent advice on what could be done to assist Constable Trindall (See: Gillett parag. 25). The Applicant did not challenge Superintendent Gillett on this information. Subsequently Dr Norris, the Acting Senior Police Medical Officer wrote to Superintendent Gillett on the 22nd February, 2002 suggesting that the Applicant needed to have his fitness for police duties clarified as soon as possible by a clinical hematologist and forwarded same back for his consideration. Further, Constable Trindall was to discuss the situation with his local doctor and to arrange a referral to a hematologist. It was also requested that "he see whether his general practitioner is happy with the current restrictions on his duties" (See: Transcript 29th June, 2004 pg. 75.7-76.1; Gillett parag. 256 Annex. I; Norris parag. 7 Annex. C; Trindall parag. 26)

63. Subsequently Superintendent Gillett spoke to Constable Trindall conveying Dr Norris' request to see his general practitioner for a referral to a specialist hematologist and any comment regarding his work restrictions (See: Gillett parag. 26).

64. It should be noted that Superintendent Gillett last worked for the Police Force on the 4th May, 2001 when he went on annual leave and formally retired on the 13th July, 2001 (See: Gillett parag. 1).

65. The Applicant then attended his GP and was referred to a hematologist, Dr Presgrave (See: Transcript 29th June, 2004 pg. 76.17). Dr Presgrave prepared a report dated 31st March, 2001 (See: Norris parag. 8 Annex. D; Trindall parag. 26 Annex. 5).

66. Subsequently, Dr Ling prepared a report dated 9th April, 2001 which placed restrictions on the Applicant's work activities (See: Stewart parag. 19 Annex. F; Norris parag. 9 Annex. E; Trindall parag. 27 Annex. 6).

67. The condition the Applicant suffers from is not work related. In respect to such a situation there are protocols in place where the Respondent accepts the medical advice of an employee's treating medical practitioners (See: Norris parag. 37, 38, 39, 40, 41; Transcript 10th August, 2004 pg. 70; Stewart Transcript 11 August, 2004 pg. 95).

68. To suggest otherwise in a non work related medical condition, the employer is placed in a position of challenging the contents of specific medial reports.

69. Dr Ling has been a practicing general practitioner since 1980 (See: Transcript 30 August, 2004 pg. 31.5). The Applicant subsequently consulted Dr Ling and he provided a medical certificate dated 9th April, 2001 (See: Transcript 30th June, 2004 pg. 32.8). Prior to providing that certificate Dr Ling referred the Applicant to Dr Presgrave a specialist hematologist (See: Transcript 30th June, 2004 pg. 32.8).

70. In providing the medical certificate of the 9th April, 2004, Dr Ling consulted Dr Presgrave about its contents in respect to the type of duties the Applicant had to perform as a Police Officer. Dr Ling understood that the medical certificate had to be provided to his employer in relation to his condition (See: Transcript 30th June, 2004 pg. 33.5). Dr Ling was aware that his condition was not work related and the certificate had to be provided to his employer in relation to restrictions on his employment. Dr Ling in his position as a general practitioner, who provides a medical certificate, was of the opinion that he would expect an employer to abide by the restrictions that are set out within the medical certificate (See: Transcript 30th June, 2004 pg. 34.5).

71. As a result of his sickle cell trait condition he placed a number of limitations on the Applicant, including severe sudden physical exertion and domestic and other violent situations. Dr Ling appreciated the fact that those situations were part and parcel of a policeman's duty from time to time, and they were placed on him in respect of his sickle cell condition (See: Transcript 30th June, 2004 pg. 35). The certificate was an ongoing certificate provided by Dr Ling in respect to his restrictions (See: Transcript 30th June, 2004 pg. 34.3). Further, Dr Ling had acknowledged that he had been provided with reports from Dr Norris, 8th May, 2001 and a second dated 1st August, 2001.

72. Subsequently, Dr Ling referred the Applicant to Dr Lindeman who produced a report dated 2 July, 2001 (See: Norris parag. 18 Annex. M; Trindall parag. 13 Annex. 8). In Dr Ling's opinion, Dr Lindeman's report was similar to Dr Presgrave's report and he saw no need to change the certificate dated 9th April, 2001 (See: Transcript 30th June, 2004 pg. 37.5). Though Dr Lindeman raised the issue that the Applicant may have to consider alternative employment, Dr Ling, for whatever reason formed the opinion that he did not think that he needed to discuss that with the Applicant (See: Transcript 30th June, 2004 pg. 38). As a result of Dr Lindeman's report the work restrictions continued (See: Transcript 30th June, 2004 pg. 39.1).

73. On the 23rd November, 2001 Superintendent Stewart attended with the Applicant at Narrabri in consultation with Dr Ling (See: Stewart parag. 44, 45, 46).

74. It was made plain to Dr Ling that Constable Trindall would have to remain on restricted duties unless he removed them (See: Transcript 30th June, 2004 pg. 40.2).

75. Dr Ling was aware that his employer could not remove these work restrictions unless medical advice was obtained from him to the contrary. In respect to that position, Dr Ling advised that he did speak to another specialist, whose name he could not recall, and they discussed sending the Applicant to a hematologist who may be able to say that the restrictions can be lifted. Dr Ling said that he based his medical certificate on the advice from the specialist hematologist (See: Transcript 30th June, 2004 pg. 40.7).

76. Though Dr Ling has spoken to this other doctor, he advised that he did not consider referring the Applicant back to Dr Presgrave or Dr Lindeman for further assessment. However, he did write to Dr Presgrave in September, 2001 asking him to reconsider the restrictions, however, he never received a reply from him (See: Ling-2 Annex."A"). He further advised that he sought to contact Dr Presgrave, but he was not available and he did not follow it up. That seems to be a similar position in respect to Dr Lindeman (See: Transcript 30th June, 2004 pg. 41.7-41.2).

77. Dr Ling also expressed the view that he did not discuss the Applicant's conditions with other local general practitioners in the area (See: Transcript 30th June, 2004 pg. 41.2).

78. In respect to Dr Konetey, Dr Ling was of the opinion that he was not a registered medial practitioner in New South Wales and he indicated to the Applicant that he did not have the qualifications to lift the restrictions on the medical certificate (See: Transcript 30th June, 2004 pg. 41.6).

79. It should also be noted that Dr Ling when he received the two reports from Dr Norris didn't think it appropriate to contact Dr Norris to discuss same (See: Transcript 30th June, 2004 pg. 41.8-42.2).

80. In respect to the report of Dr Hertzberg dated 7th August, 2002 Dr Ling received a letter from the Court & Legal Services under the hand of Dr Ball.

81. Dr Ling indicated that he did not have a conversation with Dr Hertzberg, however he did write to him to confirm his opinion. Subsequently, on receipt of the further advise from Dr Hertzberg, Dr Ling prepared a further letter dated 11th October, 2002 where he allowed Mr Trindall to return to regular police duties without restriction.

82. The Applicant subsequently returned to on operational duties.

83. An issue I seek to raise, when I objected to a question from [the Court], where you asked Dr Ling "Q. The other thing I want to ask you doctor is that with the benefit of what you now know and looking at the various specialist opinions, including those of Professor Hertzberg, do you now accept the certificate issued by you on 9th April, was wrong? A. It was inappropriate" (See: Transcript 30th June, 2004 pg. 45.9)

84. [The Court] will recall that I objected to that line of questioning. However, [the Court] took the matter further in respect to the original medical certificate dated 9th April, 2001.

85. Dr Ling made the very important point "That recommendation though is based on specialist opinions as well. It is true that I have limited understanding of the sickle cell trait condition. So I base-the basis of that certificate is from the specialist report, plus a conversation with the specialist to write a certificate" (See: Transcript 30th June, 2004 pg. 46.8). The doctor further agreed that it was inappropriate to say the certificate of 9 April, 2001 was inappropriate because it was prepared one, by himself as a medical practitioner and secondly, in consultation with Dr Presgrave who is a specialist hematologist, and Dr Ling agreed with that proposition. Further, that report, Dr Ling was subsequently substantiated by the report he obtained from Dr Lindeman (See: Transcript 30th June, 2004 pg. 47).

86. The point I raise is this, that it would be totally inappropriate to retrospectively question the validity of a medical certificate that had been prepared on the advice of a specialist hematologist in 2001. Dr Ling is not in a position to say, that the specialist opinion had been inadequate at the time having regard to the knowledge that is now available concerning the trait. Further, Dr Ling cannot provide an opinion as to the present position of Dr Presgrave and Dr Lindeman on this issue. As [the Court] would be well aware medical specialists have conflicting opinions on all sorts of medical conditions. As at April, 2001 Dr Ling had taken his specialist advice on the condition and had provided that report to his employer.

87. To take the matter further, Dr Presgrave and Dr Lindeman would have to be cross-examined that their specialist opinions in 2001 were not correct. Their reports have not directly been challenged by the Applicant, by way of Cross-Examination.

88. Further, the Autopsy Report dated 20th November, 2000 would have to be challenged.. Dr Sugo was not required for cross-examination.

89. The Respondent was not in a position to question the medical certificate in relation to the non-work condition. On the 17th April, 2001 Constable Trindall emailed to Dr Norris asking for a consultation in respect the report of Dr Presgrave dated 31 March, 2001 (See: Norris parag. 10 Annex. F) an appointment was made in Sydney on the 1st May, 2001 (See: Norris parag. 11 Annex. G).

90. In respect to the consultation on the 8th May, 2001 Dr Norris in cross examination advised that he had already had a certificate from his doctor issued on the 9th April, 2001. Dr Norris makes the important point that he would have provided it to the Local Area Commander which would have been normal. He goes onto say they get certificates all the time from doctors and they would be expected to act on individual medical certificate(s).

91. It is not for the employer for a non-work related condition to form the view that the certificate provided by a registered New South Wales doctor is inappropriate in respect to any employee (See: Transcript 10th August, 2004 pg. 28.7). Dr Norris took the position that the normal action in a situation like this was to recommend that the constable would go back and discuss the matter with his own general practitioner, to provide an opinion. That action was taken in this case. Dr Norris makes the point that was the standard procedure. Dr Norris makes the point, if it had been the opposite and a general practitioner was going against the specialist's advice in terms of saying that Constable Trindall was fit, if a specialist was saying that he wasn't, then we would have taken a different attitude because there would have been "a safety issue" for us, our role is to make sure that safety is maintained. There was no problems with safety in this situation. Dr Norris indicated the normal procedure had been followed to send the officer back to the GP to resolve the question, and that's what had been done in this case (See: Transcript 10th August, 2004 pg. 30.5).

92. In that consultation on the 7th May, 2001 the Applicant indicated that he would be seeking further hematological opinion, until that time he agreed to continue on restricted duties (See: Norris parag. 13).

93. On the 8th May, 2001 Dr Norris provided his report (See: Trindall parag. 29 Annex. 7) that report was made available to the Applicant, the Rehabilitation Officer, Dr Ling and also to Dr Berdoukas.

94. It was recommended that Constable Trindall see Dr Berdoukas, who was recommended by Dr Presgrave who was engaged by the Applicant's G.P..

95. In that report dated 8th May, 2001 Dr Norris sets out the restrictions, along with the reference to Dr Ling's report on pg. 2. Subsequently, on the 14th May, 2001 there was a meeting at the Moree Police Station with Superintendent Stewart, the Applicant and Inspector Harvey which discussed Dr Norris' report dated 8 May. At that time arrangements were made for the Applicant to travel to Sydney to see Dr Berdoukas on the 4th June, 2001 (See: Stewart parag. 22, 23, 24, 25, 25, 26). It should be noted that the Applicant writes to Dr Norris on the 16th May, 2001 advising that he consulted Dr Ling, who informed the Applicant that the restrictions had been drafted after consulting Dr Presgrave, who made the recommendations (See: Norris parag. 17 Annex. L).

96. In response to the situation, Dr Berdoukas was apparently overseas and a consultation was made with Dr Lindeman, a Hematologist on the 4th June, 2001 (See: Stewart parag. 27 Annex. H). Dr Lindeman provided a report dated 2 July, 2001 in respect to the Applicant's condition (See: Norris parag. 18 Annex. M; Trindall parag. 13 Annex. 8).

97. From about 5th July, 2001 the Applicant made a workers compensation claim for stress and it would appear that he was off work until approximately 24th September, 2001 (See: Williams parag. 8q). Subsequently a further referral was sent to the PMO seeking a review of Constable Trindall on the 15th July, 2001. The referral stated that the Applicant was on seek leave and had been certified unfit owing to his psychological injury (See: Norris parag. 19). However, as a result of that Dr Norris saw Constable Trindall on the 17th July, 2001 in Dubbo (See: Norris parag. 20).

98. At the consultation on 17th July, 2001 the Applicant displayed, in Dr Norris' view, a dichotomous attitude to his condition which made resolution of his situation difficult. On one hand he wanted to return to operational duties, yet at the same time he displayed concerns about his sickle cell trait which remained unresolved. Dr Norris denied that he said to the Applicant "your GP has done this, its his fault". Paragraph 55 of the Norris affidavit, the doctor tried to explain to the Applicant simply that the certification by his GP and the restrictions that they represented were the reasons why he remained on those duties. That denial appears to be accepted by the Applicant's Counsel where he was not challenged on that issue (See: Transcript 10th August, 2004 pg. 46.4).

99. One other interesting point during that exchange was a comment in respect to Trindall's affidavit in paragraph 40 where it was suggested...."These restrictions are crap, my only mistake was trusting the fools by putting a report in....do you remember him saying those words? I can't recall him saying those specific words. I mean, he was fairly upset at the time, so I, you know, he could have, you know, I wouldn't say he didn't say those words to that effect." Dr Norris could not recall specifically those words, but what is interesting is a suggestion that the Applicant's "mistake was trusting the fools" by putting in a report. That suggests a proposition that there was some sort of "conspiracy" going on by his superiors. I would make this point, that such a serious allegation was not suggested to any of the Respondent's witnesses. I submit, properly so, because there was absolutely no evidence that could support such an outrageous contention.

100. However in the Applicant's submission, paragraphs 37 & 38 inter alia, such a proposition is submitted. The Applicant submits in paragraph 38 "In light of the circumstances referred to in the paragraphs above, it is open to the Court to find that representatives of the Respondent sought to exploit the circumstances of the Applicant's medical condition to deny him opportunities in his employment and ultimately seek to have him removed from the police service."

101. To ask a Court to make such a serious finding, this proposition of "conspiracy" should have been put directly to the Respondent's witnesses. It was not. On the facts of the case, I would submit such an outrageous submission should be rejected.

102. Subsequently, Dr Norris provided a report dated 1st August, 2001 where the Applicant was placed on permanent restrictions (See: Norris parag. 21 Annex. P; Stewart parag. 31 Annex. K).

103. In respect to Dr Konetey, Dr Norris received a fax from the Applicant on the 7th August, 2001 (See: Norris parag. 22) Dr Norris expressed the opinion that if he was the person making the decision about the Applicant's fitness and was depending on Dr Konetey's credentials, he expressed the view that he would have significant doubts about his credentials, but he makes the point that he wasn't in that situation (See: Transcript 10th August, 2004 pg. 48.5).

104. It is a further significant point that Dr Norris makes is that he couldn't be in position to accept Dr Konetey's position opinion as he was a doctor from overseas (which Dr Norris questioned). He states: "if it came down to that, and it never did, come down to accepting his opinion of two Australian qualified registered hematologists, it would never come to that. It would have been a consideration, but it never came to that" (See: Transcript 10th August, 2004 pg. 49.5).

105. Though Dr Norris expressed his own opinion in respect to the position of the Applicant, he makes the important point that he has a medical certificate from his treating G.P. which has been provided after consultation of two referred specialists by his treating doctor. He was not in a position to return the Applicant back to operational duties in such a situation.

106. At that meeting on the 17th July, Ms R Williams, Occupational Health & Safety Co-Ordinator was also present at that meeting. It is submitted she supported the contents of that consultation, and, notes that Dr Norris encouraged Constable Trindall to continue working on suitable duties before making any decision in respect to his future. It was also discussed that the other opportunities of operational roles within New South Wales.

107. It would then appear from about 16th August, 2001 that the Applicant went off on stress [leave]. It would appear that the Applicant did not return to work until the 24th September, 2001 on restricted duties (See: Williams parag. 8Q).

108. It is interesting to note that on the 20th September, 2001 Ms Williams telephone Dr Ling and asked "what can New South Wales Police do to assist Constable Trindall's situation?" Dr Ling simply replied "Counselling. I am waiting on a written reply from a haematologist regarding Constable Trindall's condition/work restrictions. There is no alternative at this point, but to wait for further specialist advise." That evidence has not been challenged by the Applicant (See: Williams parag. 8N).

109. The Respondent was not in a position to unilaterally act and return the Applicant to his normal duties when he has a current work restriction placed on him by his treating doctors. The responsibility to obtain a further report lay with his general practitioner as this matter solely related to a non work issue. On the 21st August, 2001 in respect to the Applicant's condition there was a meeting at the Narrabri Police Station where Superintendent Stewart, Constable Trindall and Ms Williams were present (See: Stewart parag. 32-39; Williams parag. 8H).

110. Superintendent Stewart rejected the suggestion at that meeting that he could not accommodate the Applicant for very long (See: Transcript 8th September, 2004 pg. 22.8). Otherwise, the contents of that meeting do not appear to be challenged by the Applicant.

111. I refer the Court to the affidavit of Ms Williams. In particular I refer the Court to paragraph 8 which shows a continual contact by her with the Applicant's treating doctor in respect to his care and concerns in respect to his future with the Respondent. The Respondent has shown that there is a system in place to consult with a worker's treating medical practitioners to provide assistance seeking the return to work of that employee. After his return to work on the 24th September, 2001 where he returned to his pre-injury duties you will note from Ms Williams affidavit in paragraph 8 that she continues to liaise with the Applicant in respect to his situation.

112. It is important to note that Superintendent Stewart, subsequent to the meeting on the 21st August, kept in contact with the Applicant (See: Stewart parag. 40, 41). Superintendent Stewart made it clear that the Respondent could not return him to normal duties unless his treating doctors provided to the PMO a certificate certifying him fit for fully operational duties.

113. It should be noted that by November, 2001 the Applicant indicated that he was getting nowhere with his GP, he offered that he attend a consultation with his GP.

114. There is an exchange of emails in respect to organizing an appointment with Dr Ling at Narrabri (See: Stewart parag. 43).

115. On the 23rd November, 2001 Superintendent Stewart attended with the Applicant at Dr Ling's surgery (See: Stewart parag. 44, 45, 46).

116. Superintendent Stewart was not challenged on his evidence in that respect (See: Transcript 8th September, 2004 pg. 123.8-124). What is very important in respect of that consultation is that it is acknowledged that Dr Ling is the Applicant's treating doctor and he states: "I must follow the specialist who made the recommendations".

117. It was made clear to his treating doctor, by Superintendent Stewart that the Applicant wanted to return to be on full operational duty and could he seek to have those restrictions lifted, otherwise his career path was in jeopardy.

118. The Respondent could not be more supportive of the Applicant in seeking to have him return to work. That was not challenged at all by the Applicant.

119. The Respondent has a Common Law duty of care to the Applicant to ensure that he works in a safe environment. Further, the Respondent is regulated in New South Wales by the Occupational Health & Safety Act. If the Respondent unilaterally returned the Applicant to his work without restrictions, contrary to the medical certificate provided by his medical doctor(s), the Respondent would expose itself to civil litigation at Common Law and penalties pursuant to the Occupational Health & Safety Act.

120. After the meeting with Dr Ling, Commander Stewart suggested to the Applicant that he seek further medical advice (See: Stewart parg. 46). That situation was not challenged by the Applicant (See: Transcript 8th September, 2004 pg. 124, 125).

121. Subsequent to the meeting with Dr Ling on the 23rd November, 2001 Superintendent Stewart had discussions with the Applicant encouraging him to explore alternative work such as the Criminal Investigation Unit. However, the Applicant was not inclined to follow this course.

122. Superintendent Stewart writes to Dr Norris as a follow up to his last report dated 1 August, 2001 and advises that the Applicant should be subsequently reviewed (See: Stewart parag. 49 Annex. M; Norris parag. 23 Annex. R).

123. In the memorandum dated 29 January, 2002 it is clear that Superintendent Stewart is well aware of the employee duty of care owed to its employee, that is, placing him in a safe working environment. In that memorandum, he sets out the circumstances which has lead up to this situation, he requests this further review so as to determine his future, and, he seeks clarification prior to speaking to the Applicant.

124. It should also be noted in the memorandum he notes correctly that the Applicant's medical team has been unmoved by the overseas specialist advice, Dr Konetey (See: Transcript 8th September, 2004 pg. 126.5).

125. Superintendent Stewart was seeking "an independent review" of the Applicant's situation (See: Transcript 8th September, 2004 pg. 126-127). It is interesting to note that Ms Williams on the 12th February, again contacted Constable Trindall.

126. It should also be noted that on the 12th February, 2002 Ms Williams telephoned Constable Trindall and was advised that Dr Ling had not received any further information from the Hematologist, and, therefore he was to remain on restricted duties. He advised that he would again speak to Dr Ling in respect to the situation (See: Williams parag. 8U).

127. On the 18th February, 2002, Commander Stewart advised Ms Williams that he was going to meet with Dr Norris on the 18th February, to discuss Constable Trindall's restrictions and obtain advice from Health Quest (See: Williams parag. 8V).

128. On the 21st February, 2002 Superintendent Stewart attended the office of the Police Medical Officer, Dr Norris and discussed the Applicant's situation (See: Stewart parag. 50; Norris parag. 24, 48, 49 Annex. S (medical file note) Transcript 8th September, 2004 pg. 126.3-127).

129. In respect to the meeting on the 21st February, 2002. Dr Norris advised (he agreed in principle, with the opinion of Dr Konetey), however, he is not in a position to remove the restrictions which have been placed on Constable Trindall, as these restrictions have been placed on Constable Trindall by his GP as a result of the opinions of two (2) Hematologists that Constable Trindall had been referred to. A crucial issue in this case is, the Respondent is not in a position to act contrary to the medical opinion of the Applicant's treating doctors (See: Norris parag. 24).

130. It should be noted that the Applicant did not challenge Dr Norris on this principle.

131. In response to the meeting on the 21st February, 2002, Superintendent Stewart again forwards a memorandum to Dr Norris dated 27th February, 2002 (See: Stewart parag. 51, 52, 53 Annex. N; Norris parag. 25 Annex. T).

132. In that memorandum Superintendent Stewart specifically states: "I advise that I do not wish Constable Trindall to be reviewed for the purpose of medical discharge from the service, but rather he be reviewed, as stated to determine his fitness for general duty policing. Once this review has occurred, based on the recommendations of Health Quest, further deliberation shall be undertaken as to the officer's future within the service.".

133. The Applicant did not challenge the position of Superintendent Stewart on this issue (See: Transcript 8th September, 2004 pg 127, 128).

134. The Applicant had an appointment to undergo an assessment by Health Quest on the 13th May, 2002 (See: Stewart parag. 53, in accordance with Annex.N; See: Transcript 8th September, 2004 pg. 128.9).

135. In response to that, Dr Norris wrote to Health Quest on the 13th March, 2002 (See: Norris parag. 26 Annex.U) it is submitted that Annex. U is a very important piece of evidence in that it outlines the history of the Applicant and seeks a medical review for fitness for his operational duties.

Dr Norris, again at pg. 2 of the report, specifically requests a review in respect to his fitness for operational duties, noting that the Applicant requests that the restrictions be lifted on him. Further, he makes the point that the Applicant is under the belief that the restrictions are those of the New South Wales Police. Its made quiet plain that they are not placed there by the Respondent and can not be removed by the Respondent. It should be noted that the medical file is attached.

Unfortunately, the process goes of the rails. However [that was] not the fault of the Respondent. The medical discharge unit received Dr Norris' letter on the 14th March, 2002 (See: Crellin parag. 3).

In the affidavit of Crellin he sets out the subsequent circumstances. It should be noted that the Applicant did not attend his appointment with Health Quest and a letter was received from his Solicitor dated 9th May, 2002. Mr Crellin advises that he had no further involvement in the matter (See: Crellin parag. 7 Annex. C). The Applicant in or around May was informed by Gary Trindall, the letter from the workers compensation branch (See: Trindall parag. 49 Annex. 11).

The letter is from the Workers Compensation & Review branch indicating that the Police Medical Officer (PMO) has submitted an advising to the police service recommending that [the applicant] be medically discharged. On review of the material that has gone forward, at no time did Superintendent Stewart or Dr Norris seek the medical discharge of the Applicant. As a result of that letter, the Applicant lodged a complaint to the Human Rights & Equal Opportunity Commission on the basis of disability and race discrimination (See: Trindall parag. 50 Annex. 120.

136. The Applicant was unable to give an explanation(s) as to why he did not contact Superintendent Stewart after he was informed by Garry Trindall of the letter that had been sent (See: Transcript 30th June, 2004 pg. 21.1).

137. The Applicant was unable to give any explanation or reason as to why he did not contact Superintendent Stewart or Dr Norris in respect to this referral (See: Transcript 30th June, 2004 pg. 24-25).

138. On the 9th May, the Applicant's solicitors wrote to Health Quest stating that they did not consider any examination should proceed until the discrimination complaint had been dealt with. It should be noted that that letter has not gone into evidence (See: Trindall parag. 50). The proposed review by Health Quest of the Applicant's condition did not take place on the 13th May, 2003 (See: Stewart parag. 53 Annex. N).

139. Superintendent Stewart became aware that Constable Trindall did not attend the consultation with Health Quest (See: Stewart parag. 54, 55).

140. On the 17th June, Dr Norris prepared a report for Ms Karen Hardy, Court & Legal Services New South Wales Police (See: Norris parag. 27 Annex. V). Subsequently, legal services obtained a report from Dr Hertzberg dated 7th August, 2002 and Dr Norris was asked to comment on same (See: Norris parag. 28 Annex. W) Dr Norris responded by way of report dated 12th August, 2002 again advising he was happy for the Applicant to return to operational duties, he could still not clear him unless his treating doctor also agreed to review the restrictions that were currently in place (See: Norris Annex. W).

141. Dr Ling provided a report dated 11 October 2002 to Dr Norris (See: Norris Annex. Y) in which he removed the restrictions (See: Norris parag. 30 Annex. Y). On the 18th October, Dr Norris wrote to Mr Ball advising that the Applicant could return to operation duties as per the restrictions recommended by Dr Ling (See: Norris parag. 31 Annex. Z). The Applicant subsequently returned to normal duties from or about March, 2003 (See: Transcript 30th June, 1994 pg. 28).

142. The Applicant was transferred to the Narrabri Police Station in the Barwon command on or about 16th May, 2000 (See: Gillett parag. 4, 9 Annex. A; Inspector Cairncross parag. 11(b)).

143. On the 25th May, 2000 the Applicant sought to receive a dispensation from Superintendent Gillett which would exclude him from Olympic duty (See: Stewart parag. 6 Annex. A; Gillett parag. 9 Annex. A). Arrangements were made for a substitute for the Applicant (See: Gillett parag. 9, 10).

144. Previously the Applicant had been advised that he had up to the 30th June, 2000 to organize another officer to take his place at the Olympics. He was advised the 30th June had been nominated by the Olympic security command centre, as a final date by which alterations to the schedule of officers to undertake duties were to be submitted. During the week, 17th July, 2000, Constable Coates at Narrabri agreed to take the Applicant's place at the Olympics. Inspector Welsh advised Superintendent Stewart that Constable Trindall had been able to secure Constable Coates of Narrabri to swap on Olympic duties. Superintendent Stewart advised Inspector Welsh that the deadline for Constable Trindall's change of officers could now not be accommodated as the deadline set by the security committee for the arrangements was the 30th June, 2000.

145. Inspector Welsh notified the Applicant that he was still obliged to undertake his Olympic duties given the deadline of the 30th January, 2000 (See: Gillett parag. 10 Annex. B). On the 17th July, 2000 Constable Trindall phoned Superintendent Stewart at Moree Police Station concerning the matter, Superintendent Stewart reinforced information provided by Inspector Welsh earlier that day.

146. The Applicant did not offer any explanation additional to that outline within his report dated 25th May, 2000 to support his motivation to do relief from Olympic duties. It was noted that during this conversation that Applicant became extremely abrupt. Superintendent Stewart agreed to meet with the Applicant that afternoon at Narrabri to personally address any of the concerns over the performing of his duties.

147. Later on the 17th July, 2000 Superintendent Stewart spoke to Inspector Carincross and indicated that the Olympic Security Command Centre would accommodate Trindall's proposed swap with Constable Coates, given that they were from the same station. Later that day Stewart traveled to the Narrabri Police Station and spoke personally to the Applicant and Constable Coates. At that time both were advised they could carry out the swap.

148. On the 25th July, 2000 Superintendent Stewart in a telephone exchange with Inspector Cairncross informed Superintendent Stewart that was no long possible to exchange Coates for Trindall on the Olympic duties. Inspector Welsh informed both the Applicant and Coates of this situation (See: Gillett parag. 10 Annex. B; Stewart parag. 8 Annex.8). It should be noted that subsequent to that advice on the 25th July, 2000 Constable Trindall did not obtain any medical reports or certificate advising that he would not be attending the Olympics in Sydney.

149. On the 8th September, 2000 Superintendent Gillett advised Inspector Cairncross, informing him that the Applicant would not attend the Olympic games. At that time, it is submitted the Applicant disobeyed a lawful direction (See: Cairncross parag. 11(c)). Subsequently on that day Superintendent Stewart provided a written direction to the Applicant directing him to perform his duties (See: Gillett parag. 12 Annex. C). Subsequently on that day, the Applicant refused the direction to attend Sydney on Sunday, 8th September, 2000 (See: Gillett parag. 11 & 12 Annex. B & C; Stewart parag. 7 & 8 Annex. B; Cairncross parag. 11(c) Annex. B). It should be noted the police contingent were to take up their duties at the Olympic venue on the 10th September, 2000.

150. On Monday 11th September, 2000 Superintendent Stewart and Inspector Gillett interviewed the Applicant at Narrabri Police Station regarding his refusal to attend his Olympic duties (See: Gillett parag. 13, 14, 15, 16 Annex. A). Further on that day Superintendent Gillett directed the Applicant in his duties. A recommendation was made for the 19th October, 2000 (See: Gillett parag. 16 Annex. D-Recommendation 19th October, 2000).

151. On 11th September, 2000 there was an interview at the Narrabri Police Station between Superintendent Gillett and Stewart who spoke to the Applicant (See: Gillett parag. 13). Subsequently, Gillett advised the Regional Commander, Cairncross of Trindall's situation and discussed disciplinary action. It was agreed to a mediation process to the alternative of taking disciplinary action against the Applicant.

152. On the 18th September, 2000 Stewart phoned Gillett advising that the Applicant was refusing to attend duties (Re: Schedule colonoscopy procedure - 26 September; See: Gillett parag. 11). At this time the matter then became complicated to the extent that on the 28th September, 2000 the Applicant's brother, Rodney Trindall became involved in an altercation which resulted in his admission to the Narrabri Hospital. On the 30th September, 2000, Rodney Trindall was transferred to the Tamworth Hospital and Sergeant White became involved in the investigation (See: White parag. 4). The situation report was prepared on the 1st October, 2000 (See: Gillett parag. 20 Annex. E). Unfortunately, on the 2nd October, 2000 the Applicant's brother passed away (See: Gillett parag. 20). On the 2nd October, 2000 Detective Inspector Stewart wrote a Situation Report (See: Gillett parag. 20 Annex. F). In early October, Inspector Cairncross was advised of the death of Rodney Trindall (See: Cairncross parag. 5). Inspector Cairncross advised Superintendent Gillett of the Applicant's condition and the effect of the Coronial Inquest on him (See: Cairncross parag. 7 & 8).

153. On the 1st October, 2000 Superintendent Stewart was advised by Inspector Organ, duty officer at Narrabri Police Station of the death of Rodney Trindall (See: Stewart parag. 11 Annex.C).

154. Superintendent Stewart was of the opinion, as a result of his refusal to go to Sydney, he faced serious disciplinary action (See: Transcript 11th August, 2004 pg. 38-40).

After deliberation, the Respondent considered various issues and decided to deal with this matter as a mediation process, as an alternative to taking departmental action against the Applicant (See: Gillett parag. 17).

As a result of the mediation process, no further departmental action was taken against the Applicant (See: Gillett parag. 19).

The inadequacy of the mediation was challenged by the Applicant in respect to Superintendent Gillett's evidence (See: Transcript 11th August, 2004 pg. 45-50). However, the outcome of the mediation process was not traversed with Mr Gillett.

It is submitted, that the Olympic issue was dealt by the Respondent, with great sensitivity, in regards to the Applicant's situation.

To suggest it was the basis for the Respondent to seek to remove the Applicant from the police service is completely without merit (See: Applicant's submissions parag. 37, 38).

155. The Applicant was of the opinion that he had lost promotional opportunities because he had been placed on work restrictions. He indicated he had been in the Police service for nine years, and had not progressed from the position of Constable. He attributed that lack of progression as being placed on work restrictions and not able to complete the Constable Development Program (See: Trindall - 1 parag. 52).

156. In contrast, the Applicant agreed that there were no restrictions on his ability to seek promotion whilst on his restricted duties (See: Transcript - 30 June, 2004). To progress to the rank of Senior Constable, the Applicant had to complete the Constable Development Program (See: Transcript 30th June, 2004 pg.5.7). He was also aware that the Constable Development Program had now been superseded by an academic course of study, which had to be completed in the Constable's own time (See: Transcript 30th June, 2004 pg. 5.9).

157. During the years 2001-2003 there was no impediment on the Applicant carrying out that program whilst on restricted duties. It is also submitted, that also related to the academic course of study, in that there was no restriction for the Applicant undertaking that course (See: Transcript 30th June, 2004 pg. 6.2 Trindall 2 parag. 27).

158. Superintendent Stewart advised that the Applicant was able to complete the Constable Development Program and qualify for the promotion to the rank of Senior Constable and there was no restriction on his ability.

159. Superintendent Stewart advised that the Constable Development Program had now been replaced by an academic course of study which was also available to the Applicant, and he was not aware of any matter that precluded the Applicant from successfully completing that course of study (See: Stewart parag. 58, 59, 60 & 61).

160. In respect to the history dealing with the Applicant's promotion, Sergeant Lang provided a statement and also gave evidence on the 11th August, 2004. Sergeant Lang gave evidence that the Applicant was able to commence the Constable Development Program from 1999 where the program involves the completion of 6 subjects. He advised that if a person took a minimum of 1 subject per trimester it would take about 2 years to complete the program. From the records, Sergeant Lang was able to advise that up until May, 1999 the Applicant had not passed any of the subject requirements.

161. Sergeant Lang gave evidence that from 1999 he could go back and attempt to do the programs, and according to the records he had not attempted to undertake same. She also advised that since May, 2001 Constable Trindall was able to undertake the academic course to reach the promotion to the rank of Senior Constable (See: Transcript 11th August, 2004 pg. 7.5).

162. It was submitted that up until 1999 [the applicant was] not precluded from attempting to reach the rank of Senior Constable. Subsequently the Applicant was able to pursue his course from May, 2001 to obtain the rank of Senior Constable. He has not attempted to do the course to obtain the rank.

163. Though he has been subjected to stress as a result of the death of his brother and the effect of the sickle cell trait in relation to his own employment, he has not been precluded by the Respondent in attempting to obtain the rank of Senior Constable. Further, though he has attended a number of doctors, ... [there is no evidence] that he is, from a medical point of view, unable to attempt the course itself (See: Transcript 11th August, 2004 pg. 3-15).

164. It is also submitted that during the time that he was placed on restricted duties, he was encouraged to seek alternative career paths within the Police force (See: Trindall 2 parag. 24).

165. At the meeting on the 14th May, 2001 at the Moree Police Station they discussed employment alternatives within the New South Wales Police force that could accommodate his restrictions (See: Stewart parag. 26). Further, during December, 2001 Superintendent Stewart had discussions with the Applicant concerning his interest he had shown in the Criminal Investigation Section, Superintendent Stewart, on his behalf explored the possibility as to whether they could accommodate in that section. However, after some deliberation the Applicant declined that offer (See: Stewart parag. 48).

166. Superintendent Stewart confirmed that position that there was an opportunity in the criminal investigation unit (See: Transcript 8th September, 2004 pg. 1.5-126.3). See discussion by Superintendent Stewart in relation to the opportunities for the Applicant if he involved himself in the criminal investigation (See: Transcript 11th August, 2004 pg. 97.5-98).

167. Further, in respect to the meeting that occurred on the 1st August, 2001 Superintendent Gillett also discussed with the Applicant alternative forms of employment within the Police force (See: Transcript 8th September, 2004 121.6-122.5).

168. In the daily activities of a Police Constable, the Applicant was exposed to various situations, including situations that can become physically violent within a short period of time. The Applicant in his evidence acknowledged the various aspects of his work which exposed him to physical violence (See: Transcript 28th June, 2004 pg. 61.5-64.5).

169. Inspector Cairncross informed the Court of the day to day activities of a Police Constable and informed the Court that violent situations can happen at a moments notice. He gave examples where a non-violent situation can quiet quickly turn into a situation where possible life of loss could occur, involving physical struggles, fighting etc., a simple situation can escalate quiet quickly into a violent situation exposing an officer to severe physical assault (See: Transcript 10th August, 2004 pg. 72-73).

170. Mr Gillett (retired Inspector) also set out exposure of a Police Constable in the carrying out of his daily duties for violent situations (See: Transcript 11th August, 2004 pg. 18.8-19.5). Superintendent Stewart, also set out from his own experiences the exposure of Police Officers to violent situations in the carrying out of their day to day activities (See: Transcript 11th August, 2004 pg. 98.5).

171. I refer to the Applicant's first Affidavit in respect to paragraph 18, where he travelled to the Moree Police Station with John Ridley.

172. The Applicant appears to be of the opinion that the mediation in respect to the Olympic issue and the meeting in respect to advising Superintendent Gillett occurred on the same day. However, it would appear that these 2 events occurred on 2 separate occasions. In paragraph 18 he states: "Sergeant Ridley had asked me about my sickle cell trait on the journey to Moree that morning, and I explained it to him. I am not sure how he was aware that I had sickle cell trait".

The Applicant rejected the proposition that he had informed Sergeant Ridley about his condition (See: Transcript 29th June, 2004 pg. 42.8-42.1). It was suggested to the Applicant that he spoke to Sergeant Ridley on the 5th January, 2001 in respect to his roster for that period.

173. The Applicant rejected that he did not inform Sergeant Ridley that himself, his father and his cousins had a genetic blood disorder called sickle cell trait (See: Transcript 29th June, 2004 pg. 43.3).

174. He rejected that he informed Sergeant Ridley that he had sickle cell trait which was not common in Australia, but common in Africa and America. He rejected that proposition (See: Transcript 29th June, 2004 44.1).

175. The Applicant rejected any recollection of a conversation on the 5th January, 2001 were he brought to the attention of Sergeant Ridley about his concerns regarding his condition (See: Transcript 29th June, 2004 pg. 44.8).

176. Further, the Applicant's (cross-examination) recollection appears to worsen in respect to this alleged meeting with Sergeant Ridley on that day. The Applicant rejected that he had any conversation in Sergeant Ridley's office. However, there was a discussion of some sort in the motor vehicle accident, and in his opinion, he does not recall coming forth to Sergeant Ridley. Further, he rejects that he had a detailed conversation with Sergeant Ridley about his concerns of his brother and the impact of sickle cell trait (See: Transcript 29th June, 2004 pg. 46.3).

177. Further, he rejected further details of the discussion with Sergeant Ridley on the 5th January, 2001 (See: Transcript 29th June, 2004 pg. 47.2). Further, he has no recollection of informing Sergeant Ridley that he had the same genetic disorder as his brother (See: Transcript 29th June, 2004 pg. 404 at 47.6).

178. The Applicant continues to fail to recall any of the details with the alleged conversation with Sergeant Ridley on the 5th January, 2001.

179. Over the ensuring period of cross-examination the Applicant continues to reject the majority of propositions put to him in respect to the conversation with Sergeant Ridley on the 5th January, 2001.

180. The Applicant concedes that he had a conversation with John Ridley going up to Moree. He rejected the detail that I put to him in respect to the conversation with Dr Ridley on 2001 (See: Transcript 29th June, 2004 pg. 46-52.2).

181. Further, in that exchange the Applicant rejected a suggestion regarding that conversation and the Applicant answered: "No, and if you were going to ask before how he came to lodge this, I would suggest, like with the Olympics, that, as in this room beside my farther - I mean, I am the only Aboriginal face here and those blokes there - alright, obviously they are going to have a - it's a system, its about careerism, okay obviously they have had a scrum down about it, I don't know, I cant explain those things".

182. When explored in respect to "the scrum down", the Applicant conveyed to the Court, that in his opinion, the officers had got together and spoken about his condition, and as such, it would appear that Sergeant Ridley was a part of this so-called "conspiracy" (See: Transcript 29th June, 2004 pg. 48.2-49.1) to get him.

183. In respect to the mediation, (the Olympics issue) and the issue advising Superintendent Gillett of the Applicant's sickle cell condition it would appear to be 2 different days. However, the Applicant rejected that contention.

184. It would appear to be the Applicant's view that they occurred on the same day (See: Transcript 29th June, 2004 pg. 52.6-53.2).

185. At the meeting in Moree in respect to the advice of his sickle cell condition, the Applicant opined that it was not he who wanted to inform the Police force of his concerns, but he was rather "set up" to inform Superintendent Gillett of his concerns, then, the Respondent has used that against the Applicant in an attempt to, in some way bring about a termination of his employment. I would submit that that contention must be rejected on the evidence.

186. In respect to the meeting that took place at Moree, the Applicant said that I had been told to inform you (Superintendent Gillett) about the sickle cell. The Applicant goes on to state because he wanted to know I was to raise it with him (See: Transcript 29th June, 2004 pg. 53.8).

187. In respect to the meeting, the Applicant rejected the proposition that he said to Superintendent Gillett that a violent confrontation could trigger the condition with similar consequences to that of his brother. He rejected that contention. The Applicant said "I never said it would happen to me, no" (See: Transcript 29th June, 2004 pg. 54.3-53.8).

188. He then goes on to suggest that Garry Trindall was used as "the middle man", so to speak, in respect to relaying his condition to Superintendent Gillett (See: Transcript 29th June, 2004 pg. 54.8). I would submit that the Applicant was very evasive when asked about questions about his uncle, Garry Trindall, leading up to this meeting at Moree (See: Transcript 29th June, 2004 pg. 55). It is submitted that the Applicant attempts to deliberately play down his "concern" in respect to his sickle cell trait condition in relation to his employment duties (See: Transcript 29th June, 2004 pg. 56).

189. The Applicant then goes onto state that he was not concerned for his own welfare, because of his medical condition, however, he was told to go and seek Superintendent Gillett. He states: "I never went there with the thought in my mind to go and raise concern with him. If anything, he raised concerns because it was a welfare issue and will look after it. Like there is no - by the same token, I don't deny, I probably would have thought that, but yes".

At a glance

Court

Decision date

Source

Judgment (463 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (42)

Trindall v NSW Commissioner for Police [2005] FMCA 2 (7 February 2005)