Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2016
  4. Roberts v Workers' Compensation Regulator - [2016] QIRC 30

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Roberts v Workers' Compensation Regulator[2016] QIRC 30

Roberts v Workers' Compensation Regulator[2016] QIRC 30

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Roberts v Workers' Compensation Regulator [2016] QIRC 030

PARTIES: 

Roberts, David Grant

(Applicant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2013/437

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

7 March 2016

HEARING DATES:

26 - 29 May 2014

17 July 2014 (Respondent's written submissions)

17 July 2014 (Respondent's amended written submissions)

29 July 2014 (Appellant's written submissions)

11 August 2014 (Respondent's written submissions in reply)

HEARD AT:

MEMBER:

Brisbane

Industrial Commissioner Neate

ORDERS:

  1. The appeal is dismissed.
  2. The decision of the Workers' Compensation Regulator is confirmed.
  3. The Appellant is to pay the costs of, and incidental to, the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL FROM DECISION OF THE WORKERS' COMPENSATION REGULATOR – injury is a psychiatric or psychological disorder – events occurred on multiple occasions over a seven month period – appellant bears onus to establish that his condition falls within the definition of "injury" in the Workers' Compensation and Rehabilitation Act 2003 – whether injury arose out of, or in the course of, reasonable management action taken in a reasonable way – appellant to establish that the elements of s 32(5) of the Act are not satisfied.

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 32

Sustainable Planning Act 2009 s 207

Acquisition of Land Act 1967 s 36

Integrated Planning Act 1997 s 1.3.3

Alex Sabo v Q-COMP (C/2010/46) - decision http://www.qirc.qld.gov.au

Avis v WorkCover Queensland (2000) 165 QGIG 788

Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324

Blackwood v Adams [2015] ICQ 001

Bowers v WorkCover Queensland (2002) 170 QGIG 1

Boyd v Q-COMP (2005) 180 QGIG 1129

Christine McHours v Q-COMP, C/2012/12

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

Davis v Blackwood [2014] ICQ 009

Delaney v Q-COMP Review Unit (2005) 178 QGIG 197

Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505

Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001)

Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Lackey v WorkCover Queensland (2000) 165 QGIG 22

Mayo v Q-COMP (2004) 177 QGIG 667

Misevski v Q-COMP, C/2009/29, 6 November 2009

Newberry v Suncorp Metway Insurance [2006] 1 Qd R 519

Parker v Q-COMP (2007) 185 QGIG 269

Prizeman v Q-COMP (2005) 18 QGIG 481

Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301

Q-COMP v Foote (2008) 189 QGIG 539

Q-COMP v Foote (No 2) (2008) 189 QGIG 802

Q-COMP v Glen Rowe (2009) 191 QGIG 67

Q-COMP v Hohn (2008) 187 QGIG 139

Q-Comp v Parsons (2007) 185 QGIG 1

Q-COMP v Queensland Rail, Decision C/2011/26

Q-COMP v Riggs [2005] 179 QGIG 251

Q-COMP v Whyte C/2009/32

Re Yu and Comcare [2010] AATA 960

Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au

Sheridan v Q-COMP (2009) 191 QGIG 13

State Government Insurance Commission v Stephens Brothers Pty Ltd (1984) 154 CLR 552

Svenson v Q-COMP (2006) 181 QGIG 629

Versace v Braun (2005) 178 QGIG 315

WorkCover Queensland v Buchanan (2000) QGIG 124

WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6

WorkCover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

Mr D.G. Roberts, Appellant in person

Mr S. Gray, counsel instructed directly by the Respondent

Decision

  1. [1]
    This is an appeal by David Grant Roberts ("the Appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Review Unit of the Workers' Compensation Regulator ("the Respondent") to reject the Appellant's application for compensation for what he claims is a work related psychiatric or psychological injury. The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act").

Background to the claim

  1. [2]
    The Appellant is an engineer.  He commenced employment as a Project Manager for Powerlink Queensland ("Powerlink") from early 2011 in the Network Property Group.  He known to his work colleagues as Grant.
  1. [3]
    Powerlink is involved in projects which can be broadly characterised as:
  1. (a)
    regulated projects which service the general supply of electricity throughout the State (e.g., augmenting the existing network to ensure that future demand can be met) and which are paid for by the State; and
  1. (b)
    non-regulated projects where an entity engages Powerlink to provide transmission lines or substations to allow them to connect to the transmission grid within Queensland in order to meet the entity's energy needs for its business purposes, and that entity pays for the asset that is used to connect them to the main grid. 

In a formal sense there was no difference in process between regulated and non-regulated projects.  However, as this case illustrates, there can be significant practical differences in how Powerlink undertakes aspects of its work depending on the type of project.

  1. [4]
    Stages of a project: Peter Briggs (previously a Project Manager then a Senior Project Manager with Powerlink) and Terrence Miller (previously the Manager of Network Investment and Regulatory Strategies for Powerlink), described the stages of a project and the associated access arrangements.  In summary, the evidence of Mr Briggs was that after the need to build infrastructure is decided:
  1. (a)
    a corridor (about two to three kilometres wide) is identified;
  1. (b)
    landholders within that corridor are advised that their properties are within the project area;
  1. (c)
    a Project Manager or other person from Powerlink talks to each landholder about how their property fits within the project area and the opportunity for Powerlink to access the project area, including their property, to assess what constraints[1] might impact on decision-making in relation to the placement of infrastructure on the particular property, and the economic impacts of a transmission line on land use, the value of the property, and activities associated with the property;
  1. (d)
    usually each landholder provides (or, at least, most landholders provide) Powerlink with access to their property;
  1. (e)
    when access is denied, Powerlink decides how to progress the matter (including whether that property needs to be accessed) and uses different tools to try to achieve access (including sending, for example, a more experienced person or someone in a more senior role to try to negotiate access);
  1. (f)
    sometime access is granted on the basis of a permission to enter form, a non-binding agreement with relevant conditions (e.g., an indemnity granted by Powerlink) (see Exhibit 17 document 31);
  1. (g)
    if that fails, Powerlink will consider other ways to secure access, including under s 36 of the Acquisition of Land Act 1967 which empowers an officer, employee or contractor of Powerlink to enter upon any land (and re-enter and remain on the land for such time as is necessary) for the purpose of making any inspection or survey;
  1. (h)
    a "natural justice letter" is sent to the landholder before a s 36 notice is issued, and a significant number of landholders negotiate at that stage to avoid a s 36 notice being issued;
  1. (i)
    if a s 36 notice is issued, Powerlink normally allows about 10 days before exercising its rights of access. 
  1. [5]
    Mr Miller stated that the Project Manager (or their assistant or sometimes the consultant engaged by Powerlink) contacts the landholders whose land is traversed by the preferred alignment.  Further discussions are required to refine that alignment, if necessary, to take into account additional information obtained from the landholders. 
  2. [6]
    Mr Briggs stated that, depending on the number of landholders involved, Powerlink would allow a period of about six weeks to three months for the negotiation phase.  To give some indication of how often s 36 notices are used, Mr Briggs gave evidence that s 36 notices were issued in two of the nine projects that he delivered as Project Manager.[2]  In his opinion, a six month period for negotiations and s 36 notices would be a reasonable period for a project with a large number of landholders. 
  1. [7]
    After a process involving research and draft documents, a final Environmental Impact Statement ("EIS") is developed having regard to those discussions with landholders.  The alignment that will be designated by the relevant Minister must be located so that there is an appropriate balance between the environment, social impact and cost.  Any variation to the alignment that would result in some additional cost will be a trade-off for a better environmental or social outcome. 
  1. [8]
    Mr Miller said that it is not unusual for a proposed alignment to change particularly where, as in the project mentioned in the present case, gas infrastructure was being developed as the Powerlink project proceeded.  Changes were made to the powerline alignment to take into account that infrastructure (some of it existing or almost in place, and other infrastructure identified for the future).               
  1. [9]
    The project:  Australia Pacific LNG Pty Ltd ("APLNG") asked Powerlink to establish direct connections into the high voltage transmission network to supply power to its future gas processing facilities in the area west of Wandoan.  To meet that request, Powerlink proposed to establish about 100 kilometres of transmission line and four substations.  It commenced a project to identify and acquire the necessary easements and land for the proposed infrastructure.  Initially the project involved two joint ventures with APLNG and GLNG, and affected 65 landholders.  Powerlink was constructing the powerline for the companies who were paying for the project.
  1. [10]
    Powerlink engaged a consultant, GHD, to undertake an assessment of a range of possible corridors.  By reference to desktop research initially, GHD selected the most favoured corridor (about two kilometres wide) based on the criteria in the Sustainable Planning Act 2009 and selected a preferred alignment within that corridor. 
  1. [11]
    Project Newsletter 1 of April 2012 (Exhibit 17 document 1) stated that, as part of the Environmental Impact Assessment ("EIA") process for the project, a study corridor was identified for each stage of the project within which the proposed infrastructure was to be located.  The study corridors would be used as a starting point for detailed investigations and discussions with potentially affected landowners and stakeholders.  The approach of having corridors much wider than what was needed, provided some flexibility in narrowing and identifying a route for a proposed transmission line which could help minimise its overall impact. 
  1. [12]
    Project Newsletter 1 listed the factors taken into account in determining the position of the final alignment for a transmission line:
  1. (a)
    social factors - such as minimising the number of homes near the alignment and impacts on current and future land use e.g. farming operations;
  1. (b)
    environmental factors - such as the location of regional ecosystems and rare and threatened species (if any);
  1. (c)
    visual factors - such as scenic amenity of the area, and road, creek and rail crossings; and
  1. (d)
    economic factors - such as costs associated with length of the line, type of structure, and number of line angles.
  1. [13]
    These factors are to be "weighed up together to determine an alignment which on balance, has the lowest overall impact."  After stating that Powerlink's infrastructure and farming operations can coexist safely and productively, the Newsletter continued:

"Local farmers and landowners potentially affected by a new transmission line can play an important role in helping to select an alignment of least overall impact as part of the EIA process.  As part of this project, we will be working closely with these groups and the community to determine an alignment for the proposed transmission lines of least overall impact."

Elsewhere in the Newsletter references were made to identifying a route that "could help minimise its overall impact," and to determining an alignment that has the "lowest overall impact" or the "least overall impact."

  1. [14]
    The Newsletter also stated : "No decision will be made regarding the final location of the proposed infrastructure until the EIA and related consultation has been completed."
  1. [15]
    Unusual features of the project: Mr Briggs said that the "main factor with that project was time."  Powerlink's customers had agreements in relation to supplying their own customers with electricity so that they, in turn, could export coal seam gas to their customers to meet contract dates. Another practical and distinguishing feature of the project was that the companies were "very commercial" and had their own interests to protect.  They were active in negotiations with landholders, and were "playing Powerlink off the landholders so they could build a relationship with the landholder at Powerlink's expense" (e.g. by being willing to pay the landholder for access to their property for the company's exploration for gas activities).  Mr Briggs suggested that even landholders who did not have direct interactions with gas companies might have expectations of Powerlink that are influenced by their impression of what the companies offer.  Powerlink had not experienced that previously, and it was "highly challenging." 
  1. [16]
    Mr Miller also gave evidence that the circumstances surrounding the project were more complex because gas companies were interacting with landowners with whom Powerlink had to negotiate, and were setting expectations about interactions and compensation.  That was a new environment for Powerlink. For example:
  1. (a)
    those companies had different options from Powerlink if they were unable to reach an agreement with landholders (e.g., by not drilling on those properties), whereas  Powerlink did not have a choice of avoiding properties that were "difficult" as the continuous power lines had to go from property to property without any gap;
  1. (b)
    gas companies made payments above what was paid by other infrastructure providers (such as Powerlink) for landowners' interactions and time;
  1. (c)
    because of the procedural requirements of the Acquisition of Land Act 1967, payments of compensation to landholders with respect to electricity infrastructure could take about two years or longer from the day that a landowner was first spoken to, whereas gas companies were able to negotiate deals "here and now." 

According to Mr Miller, "there were visible differences that we are becoming aware of at that time" and it was "a learning curve" for Powerlink. 

  1. [17]
    Any delays to the project or additional expenses would be met in accordance with the terms of the contract with Powerlink.  Hence it was more difficult for Powerlink to manage delays than might have been the case in relation to regulated projects. 
  1. [18]
    Powerlink apparently wrote to the gas companies asking them not to communicate with landholders about Powerlink's project (in the same way that Powerlink could not communicate about the gas project) unless there was some agreement for that to occur, e.g. by way of a joint meeting where there might be some communication about how the whole project fitted together.  Mr Briggs said that he and the Appellant spoke quite regularly in relation to the challenges with landholders and what was happening in relation to landholders.  Although Powerlink's standard approach was to try to negotiate access to properties, some landholders either did not communicate with Powerlink or were not accommodating.  Mr Briggs recalled the Appellant speaking about the process under s 36 of the Acquisition of Land Act 1967, and different opportunities to gain access so that Powerlink could deliver its project. 
  1. [19]
    Mr Briggs expressed the opinion that, in providing "highly aggressive timetables" to the customer in relation to the delivery of the project, Powerlink probably did not identify all the risks associated with the project (particularly the big landholder risk).  He believed that Powerlink provided "unrealistic timeframes" which assumed that "everything went like clockwork" and that "there were effectively no significant problems associated with the project."  He had not worked on any project where that had been the case. 
  1. [20]
    Toward the end of 2012, Powerlink was finding access to properties "challenging" and advised APLNG that it was likely there would be some delays to the project.  At that stage Powerlink would probably not have been advising APLNG of solutions, but in early to mid-2013 started communicating what it was doing in relation to trying to minimise the impacts of delays on the project.  Powerlink held workshops and meetings with the customer to try to identify opportunities to minimise the impacts of those delays. 
  1. [21]
    Mr Briggs gave evidence that Powerlink had not been involved in this type of project before, and the environment was complicated by a change of government in          March 2012.  Powerlink was trying to assess the policy direction of the incoming government in relation to Powerlink's place within the infrastructure environment.  Powerlink learnt lessons for future non-regulated fast tracked projects from decisions made in relation to this project. 
  1. [22]
    Management structure for the project:  Mr Briggs described the management structure within Powerlink relevant to this project:
  1. (a)
    the Appellant, as Project Manager and a community contact officer,[3] reported directly to Mr Briggs;
  1. (b)
    Mr Briggs, as Senior Project Manager, reported to Mr Baker;
  1. (c)
    Mr Baker, as Local Relationship Manager for Powerlink since early 2013, reported to Alison Gray;
  1. (d)
    Ms Gray, as Manager Network Property, reported to Mr Miller, Manager of Investment and Regulatory Strategies;
  1. (e)
    Mr Miller reported to Gary Mulherin;
  1. (f)
    Mr Mulherin reported to the chief executive Merryn York.  
  1. [23]
    At the hearing, the oral evidence was given by the Appellant, Mr Briggs, Mr Baker and Mr Miller, and by Amy Brutton (the Recruitment Advisor and People and Culture Advisor at Powerlink) and Melissa Azzopardi (the Group Manager, Landholder Relations).  
  1. [24]
    Mr Miller gave evidence that once APLNG and GLNG committed to the project and did some pre-work it became evident that a dedicated Project Manager was required.  The Appellant was appointed for all of the work.  As the project started to unfold, and particularly the difficulties with landowners (in "two real trouble spots") and other complexities became apparent, it was decided to divide into two projects, i.e., the APLNG component with the Appellant as Project Manager and the GLNG component with Nicole Bolton as Project Manager.  That decision was in response to a resourcing issue (i.e., the impact of that workload on Powerlink's resources) and to meet the companies' expectation that Powerlink do something like that to meet their concerns about any delays. 
  1. [25]
    The intended impact of that decision on the Appellant was to ensure that he had a "bundle of work that was doable" in circumstances where the amount of work in dealing with difficult landowners escalated and one Project Manager could not bridge the two trouble spots. 
  1. [26]
    Mr Briggs also said that initially the project involved two joint ventures, and the Appellant ran both the APLNG and GLNG projects which involved 65 landholders.  Powerlink identified all the challenges associated with those projects and the significant workload for delivering them.  It decided that the Project Manager's role probably needed to focus more on management then the delivery of tasks.  Mr Briggs recalled that the Appellant was taken away from dealing with some of the landholders after Vince Bein was appointed as a community contact officer.  However, the Appellant would retain contact with other land holders, and was still responsible for managing the community contact officers associated with the project.  The handover served two purposes namely, to relieve the Appellant of some of his work and to enable another person to have contact with landholders who had not agreed to provide Powerlink with access to their properties.  According to Mr Briggs, the transition occurred from mid-2012 towards the end of that year.  Mr Briggs was not involved directly in the decision by management, and he imagined that the Appellant would have been part of that decision. 
  1. [27]
    Ms Bolton reported to Andrew Owen, a Senior Project Manager, in the same way that the Appellant reported to Mr Briggs.  Mr Owen and Mr Briggs then reported up the line. That arrangement "made things challenging" because two Senior Project Managers were trying to deliver two projects in the area where there was a lot of overlap. In response, Powerlink formed a North West Surat team in the first quarter of 2013.
  1. [28]
    Given the reporting arrangements, Mr Baker had limited day-to-day involvement in the project in 2012.  However, he noted that, with two projects operating concurrently in the same area, there was "a fair degree of crossover between the teams." 
  1. [29]
    The Appellant's role:  Mr Briggs described the role of Project Manager for the project as involving managing the budget associated with the project and the timing of the delivery of the project.  The Project Manager also had to deliver aspects of the project and, in effect, became a landholder liaison officer or community contact officer and managed access to properties, consultants and a range of other day-to-day activities.  Separate community contact officers do much of the "leg work" in relation to negotiations with landholders.  The Project Manager's role is to manage the day-to-day activities of the community contact officers. 
  1. [30]
    The Appellant described his role as a Project Manager as involving negotiations for the preparation for construction of electrical infrastructure.  It included procuring ministerial designation as community infrastructure under the Sustainable Planning Act 2009 and procuring rights to the land  (or acquiring land) under the Acquisition of Land Act 1967.  Without those two things, the project could not proceed to the construction stage, and the project would fail. As part of his role, the Appellant identified locations for electricity substations and alignments for transmission lines, and negotiated access for EIS fieldwork by specialists and consultations with landholders to inform the EIS process.  He negotiated on behalf of Powerlink with landholders to obtain access and to acquire easements or purchase parcels of land.  He was not involved in the construction of the project.
  1. [31]
    The Appellant gave evidence that he successfully negotiated access in relation to 18 properties.  Following an email dated 30 January 2013 (Exhibit 17 document 25), the inner part of the project (about 100 kilometres affecting 20 landholders) remained with him and the rest (the Yuleba North to Blythdale line and two other lines in the GLNG project) was allocated to Nicole Bolton, another Project Manager. 

The Appellant's claim

  1. [32]
    The Appellant claims that he suffered a psychiatric or psychological injury resulting from his employment as a Project Manager with Powerlink.  The events and circumstances that he contends gave rise to his injury are set out later in these reasons for decision. 
  1. [33]
    The Appellant presented to his general practitioner, Dr Vinodha Naidoo from               18 February 2013, complaining of stress related to work.  On 6 June 2013, his general practitioner issued a workers' compensation medical certificate describing the Appellant as "stressed and very anxious," and describing the Appellant's stated cause of injury as "project falling behind being put in a bad ethical position company not following statutory process"  (Exhibit 6).  The certificate stated that the Appellant was not able to work at all from 6 until 14 June 2013.
  1. [34]
    On 7 June 2013, the Appellant lodged an application for compensation with WorkCover Queensland ("WorkCover") in relation to an injury that the Appellant asserted he had sustained during his employment.  WorkCover rejected the application for compensation on the basis that the injury had arisen out, or in the course of, reasonable management action taken in a reasonable way and was therefore excluded from the definition of "injury" in s 32 of the Act by operation of s 32(5).
  1. [35]
    In October 2013, the Appellant applied to the Respondent for a review of the decision of WorkCover. In a decision dated 2 December 2013, contained in the reasons for decision dated 6 December 2013, the Respondent's Review Unit confirmed the decision of WorkCover to reject the Appellant's application for compensation in accordance with s 32(5) of the Act. It is against that decision the Appellant currently appeals.

 The legal requirements and onus of proof

  1. [36]
    The appeal has to be decided be reference to s 32 of the Act.
  1. [37]
    At the times of the alleged events that caused the Appellant's injury, and at the date of the application for compensation the relevant subsections of the Act provided:

"(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

…

  (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management being taken against the worker;

…

Examples of actions that may be reasonable management actions taken in a reasonable way—

  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."
  1. [38]
    The definition of "injury" in s 32(1) of the Act was amended from 29 October 2013.  However, s 680 of the Act provides:

"680 Injuries sustained before commencement

  1. (1)
    This section applies if a worker sustained an injury before the commencement.
  1. (2)
    The pre-amended Act continues to apply in relation to the injury as if the amendment Act had not been enacted.
  1. (3)
    Without limiting subsection (2)—
  1. (a)
    the amount of compensation payable in relation to the injury must be worked out under the pre-amended Act; and
  1. (b)
    chapter 5 of the pre-amended Act applies in relation to damages for the injury.

  (4) In this section—

   injury has the meaning given by section 32 of the pre-amended Act."

  1. [39]
    Consequently, despite that change to s 32(1), it is clear from the operation of s 680 of the Act that s 32 as it was immediately before the 2013 amendments applies to this appeal. The case was conducted on that basis.
  1. [40]
    The Appellant carries the burden of proof on the balance of probabilities.[4] The Respondent does not contest that at the relevant time the Appellant was a "worker" for the purposes of the Act, and that he sustained a personal injury that is a psychiatric or psychological disorder.
  1. [41]
    Given the concessions made by the Respondent, the Appellant must prove, on the balance of probabilities, that his claim for compensation should be accepted because:
  1. (a)
    his injury arose out of, or in the course of, his employment;
  1. (b)
    his employment was a significant contributing factor to the injury; and
  1. (c)
    his injury did not arise out of, or in the course of reasonable management action taken in a reasonable way by Powerlink in connection with his employment.
  1. [42]
    If Powerlink's actions in connection with the Appellant's employment comprised reasonable management action of that type, the appeal must fail.

Some preliminary observations about procedural matters

  1. [43]
    The conduct of the hearing of this appeal, including the written submissions made in relation to it, illustrate the difficulties faced by a litigant in person who has no formal legal training and is unfamiliar with legislation and the conduct of an appeal (both during and after the hearing).  To some extent, the Commission can assist a litigant in person who is unfamiliar with the procedures of the Commission and the ways to handle the cut and thrust of exchanges between the parties in the course of a hearing.  To some extent, the Commission can be assisted in performing its function by the Respondent acting as a model litigant.
  1. [44]
    The transcript of these proceedings records examples of the practical difficulties faced by the Appellant and the ways they were addressed in the course of the hearing.  Despite his lack of formal qualifications and experience in relation to such proceedings, the Appellant showed his adeptness in coming to grips with what was required of him as the hearing proceeded.  He was well prepared, and the documents on which he relied were collated in chronological order.  The passages relevant to his argument were highlighted.  That gave structure to the order in which he presented his case.
  1. [45]
    Nonetheless, there were examples of the Appellant not pursuing matters or potentially not adducing relevant evidence apparently because of his unfamiliarity with the applicable procedures.  For instance, the Appellant submits that counsel for the Respondent had the opportunity to raise specific issues with two witnesses (Bob Baker and Mr Miller) but did not do so and consequently the Appellant was unable to cross-examine them on that issue.  In its detailed reply, the Respondent notes that the Appellant's cross-examination of the Respondent's witnesses was not limited to matters that were led in evidence-in-chief, and that the Appellant was given an indication by the Commission about how he might proceed with such questioning.
  1. [46]
    In his written submission, the Appellant refers to the extracts from case law quoted,  and submissions in relation to them made, by the Respondent.  He states: "I am not equipped to fully analyse this."  However, he does make some brief points in relation to the thrust of that case law.
  1. [47]
    The detailed written submissions made by the Respondent deal with each of the matters about which the Commission must make findings.  Although those submissions assist the Commission, they are made by a party defending its decision against the contentions of the Appellant.  Helpful as the Respondent's submissions are in identifying the issues and evidence in relation to them, they do not relieve the Appellant of discharging his onus of proof. 
  1. [48]
    Ultimately, the Appellant has to prove each element of his case on the balance of probabilities.  He cannot rely on the Commission or the Respondent to make his case for him or to fill in significant gaps in the evidence or his submissions.
  1. [49]
    These observations are not, and are not intended to be, critical of the Appellant or the way he conducted his case.  Indeed, he conducted himself appropriately throughout the preceding.  These observations simply illustrate some of the difficulties faced by litigants in person generally, and the Appellant in particular, when conducting an appeal.

The nature and cause of the injury

  1. [50]
    The injury and its cause were variously described in the original WorkCover claim form, the medical certificate of the same date, a report of a consultant psychiatrist, and the statement of stressors provided to the Commission in relation to this appeal.
  1. [51]
    The WorkCover claim form (Exhibit 5) was signed by the Appellant and dated               6 June 2013. For present purposes it is relevant to note that:
  1. (a)
    the nature of the injury was stated to be "Anxiety;"
  1. (b)
    the injury was said to have occurred "Dealing with failing project;"
  1. (c)
    the injury was said to have happened in the office of Powerlink in Virginia;
  1. (d)
    no date was nominated for when the injury occurred;
  1. (e)
    the claim was for time off work and medical expenses; and
  1. (f)
    a medical certificate was attached to the claim form.
  1. [52]
    The medical certificate dated 6 June 2013 (Exhibit 6) was provided by Dr Naidoo of the Courtyard Medical Centre, Kenmore. For present purposes, it is relevant to note that:
  1. (a)
    the worker's stated cause of injury was "project falling behind being put in a bad ethical position company not following statutory process;"
  1. (b)
    no diagnosis was listed, but the Appellant was described as "stressed and very anxious;"
  1. (c)
    the unspecified injury was stated to be consistent with the Appellant's description of the cause;
  1. (d)
    the Appellant was assessed as not able to work from 6 June to 14 June 2013 and was to be reviewed on 14 June 2013; and
  1. (e)
    the treatment was to refer the Appellant to Dr Andrew Nielsen, a psychiatrist.
  1. [53]
    Having seen the Appellant for assessment on 14 and 16 June 2013, and 9 and 16 July 2013, Dr Nielsen wrote a report dated 16 July 2013 to Dr Naidoo (Exhibit 13) in which he diagnosed the Appellant as having "major depressive disorder and generalised anxiety disorder."
  1. [54]
    In a statement of stressors filed with the Industrial Registrar on 6 February 2014 (Exhibit 7), the Appellant stated that:
  1. (a)
    the events that caused his injury occurred on multiple occasions between November 2012 and June 2013; and
  1. (b)
    the work events (and the persons involved) that caused his injury were as follows:

"Powerlink managers as a group (Peter Briggs, Bob Baker,         Alison Gray, Terry Miller and Melissa Azzopardi) refused to allow me to extend concessions they made to certain landholders to all other landholders affected by the same project. This resulted in two classes of landholders - a class who dealt with them who were advantaged, and a second class who dealt with me who were disadvantaged. As the nominal project manager, this left me looking like a liar and a cheat. I offered to leave the project on five occasions but was refused on the grounds that the project would suffer."

  1. [55]
    It appears from those documents that the nature of the injury was not expressed with any precision (if at all) before Dr Nielson's report, and that the descriptions of events said to have caused the injury have changed as the claim has progressed through the system.  The causes of the injury are set out in most detail in the statement of stressors.
  1. [56]
    As Justice Martin, the President of the Commission, has stated in recent decisions:
  1. (a)
    the process of filing and serving a list of stressors is used to identify those events or matters which an Appellant says caused the psychiatric or psychological injury;[5]
  1. (b)
    the list of stressors must be confined to matters that are relevant to the injury - it is not to be a list of grievances;[6]
  1. (c)
    the list of stressors is not, by itself, evidence;[7]
  1. (d)
    mere provision of such a list does no more than alert the Respondent of the case to be advanced by the Appellant;[8]
  1. (e)
    however the Respondent is entitled to engage in the proceedings on the basis that statement of stressors comprises the matters which constituted the entirety of an appellant's claim;[9] and
  1. (f)
    the Commission must decide the appeal by reference to the list of stressors and may not go beyond them when making findings.[10]

The Appellant's case - an overview

  1. [57]
    On the basis of the evidence summarised above, I understand that:
  1. (a)
    the Appellant's injury is a major depressive disorder and generalised anxiety disorder;
  1. (b)
    the injury is said to have arisen out of, or in the course of, the Appellant's employment as a Project Manager at Powerlink (as particularised in the statement of stressors) and that the employment was a significant contributing factor to the injury; and
  1. (c)
    the work events that are said to have caused his injury occurred on multiple occasions between November 2012 and June 2013.
  1. [58]
    In summary, the Appellant submits that:
  1. (a)
    this case is not about reasonable management action because his injury arises not from management action but from the nature of the work he did as Project Manager on the project, as a result of which he suffered stress because he could be called a liar and a cheat; or
  1. (b)
    in the alternative, if this case is about management action, then, in the terms of s 32(5) of the Act, the management action was not "reasonable management action taken in a reasonable way."
  1. [59]
    I note that the Respondent submits that the list of stressors makes it "abundantly clear" that the matters described relate to management action in connection with the Appellant's employment.  That issue is dealt with toward the end of these reasons for decision.
  1. [60]
    In support of his case, the Appellant relies on oral evidence given by himself,     Richard Golden (a landholder) and Dr Nielsen, as well maps (Exhibits 1-4) and numerous emails and other documents collated as Exhibit 17.
  1. [61]
    At the heart of his appeal is the Appellant's allegation that his injury occurred because he was required to be part of a process by Powerlink of cutting corners to get around problems that arose with the project. I note that Powerlink was not a party to the proceedings, and the Respondent does not act for Powerlink.
  1. [62]
    At the hearing, the Appellant described his approach in relation to this appeal in the following terms:

"I'm not asking the commission to conflict [sic - "convict"] Powerlink of anything.  Anything bad I've said about Powerlink is only on the way to show other things.  I was required by my job to be part of some behaviour that I wasn't comfortable with, but I thought was pretty dodgy.  I was made to be the public face of that dodgy behaviour on that put me in an ethical bind not of my making.

This caused me distress.  I tried to solve the problems within Powerlink unsuccessfully.  Powerlink refused to let me exit this bind and, in fact, they put further pressure on me to conform to that dodgy behaviour - what I consider to be dodgy behaviour and at that point I left work on the 6th of June." 

  1. [63]
    Although that is his gloss on his approach to the appeal, the evidence given and submissions made by him contained numerous allegations of conduct by Powerlink which he described using words and phrases such as "unreasonable," "unethical," "not open, honest, nor fair," "shonky," "dangerous," "improper," acting "in contravention to statutory requirements… and universally understood concepts of ethics," and other deprecatory expressions such as "sneak thru … then sneak away."  In proceedings such as these, colourful or emotive language is not sufficient to achieve success.  Evidence is required.  As mentioned earlier, the Appellant bears the onus of proof in relation to the relevant statutory criteria.
  1. [64]
    The specific factors on which the Appellant relies and in relation to which evidence was given are listed in the Respondent's written submission as follows: 
  1. (a)
    the Appellant was being set up as the "fall guy" in relation to the project;
  1. (b)
    after having negotiated access through 18 properties, the Appellant was removed from two (and then three) properties as someone else managed access in relation to them;
  1. (c)
    the people from those two properties were given compensation beyond what was required by legislation and rerouting the power plan, which would cost the taxpayer millions of dollars and was unnecessary;
  1. (d)
    the Appellant would look dishonest to the people with whom he had negotiated;
  1. (e)
    the Appellant identified those people because he and they were from the bush;
  1. (f)
    the prospect that the Appellant would meet people with whom he had developed a relationship and places he might do work in the future where he had been made to look "dishonest" because of the project;
  1. (g)
    return to work plan.
  1. [65]
    Although it could be useful to assess the evidence and submissions in relation to each of those factors, ultimately that evidence must be considered by reference to the stressors nominated by the Appellant.  To better reflect the order and terms of those stressors, the evidence will be considered by reference to the following topics:
  1. (a)
    the different approach to concessions made or allowed by Powerlink's managers to landholders affected by the project (items (a), (b) and (c) above);
  1. (b)
    the effect of that action on the Appellant's reputation (items (d), (e) and (f) above);
  1. (c)
    Powerlink's refusal to accept the Appellant's offers to leave the project, and aspects of his return to work plan (item (g) above).

The different approaches to concessions made, or allowed, by Powerlink's managers to landholders affected by the project

  1. [66]
    At the heart of the statement of stressors, and hence this appeal, is the assertion by the Appellant that Powerlink managers as a group refused to allow him to extend concessions that they had made to certain landholders to all other landholders affected by the project.  As a consequence there were two classes of landholders – a class dealt with managers who were advantaged, and a class dealt with the Appellant as Project Manager who were disadvantaged.  The Appellant was critical of the content of the special arrangements which were made by others with some landholders, primarily because, in his opinion:
  1. (a)
    those arrangements were contrary to the relevant legislation and Powerlink policy which he was directed to implement and did implement; and
  1. (b)
    if such arrangements were to be negotiated, they should extend to other landholders.
  1. [67]
    Given the centrality of this aspect of his appeal, it is appropriate to look in some detail at the written and oral evidence relating to:
  1. (a)
    some of the unusual features of the project which had a bearing on how Powerlink's access arrangements were negotiated;
  1. (b)
    the usual arrangements that Powerlink sought to make for access to properties where transmission lines or substations were to be constructed; and
  1. (c)
    the individual arrangements made with some landholders whose properties were affected by the project, including why and by whom those arrangements were negotiated.

Because the Appellant bears the onus of proof, I begin with his evidence in relation to this matter and his assessment of other evidence, before considering evidence given by and on behalf of others to whom he reported in the management structure of Powerlink.

  1. [68]
    Unusual features of the project:  Some of the unusual features of the project are described earlier in these reasons (see [15] to [21]).
  1. [69]
    The Appellant also gave evidence about the unusual nature of the contractual arrangements with the gas companies that governed the project and the negotiating environment within which he and others operated on behalf of Powerlink.  By comparison with the approximately 30 months usually taken for the standard regulated project, the contractual arrangements for this non-regulated project provided for a period of 19 or 20 months, with provision for liquidated damages. According to the Appellant, there were "risk and uncertainties far above what Powerlink is used to on a compressed timetable."  Added to this was a difficult negotiating environment as a result of landowners negotiating with gas companies about access and compensation around the same time as Powerlink was seeking to negotiate with them about access to conduct the EIA before finalising the location of transmission lines and substation.
  1. [70]
    According to the Appellant, the overall cost of the project was about $1 million per kilometre. A kink in the line increases costs substantially. 
  1. [71]
    The Appellant contends that a delay in the project led to Powerlink attempting to compensate by cutting corners to overcome obstacles.  That included doing favours for people who were delaying the project on the basis of how much pressure they were applying politically and in the media.  Such favours were over and above what was being offered to others involved in the project, above what was done in other projects elsewhere in Queensland, and were given over his objections.  He categorised what was done as:
  1. (a)
    violations of statutory process to achieve predetermined outcomes;
  1. (b)
    discretionary payments for access to land and payments for legal costs associated with those access negotiations that did not come under the head of compensation under the Acquisition of Land Act 1967;
  1. (c)
    malapportionment of the adverse impacts of the project
  1. [72]
    According to the Appellant, he "headed off" some attempts by Powerlink to "cut corners" with the "effect that my superiors were displeased."  He was not able to head off some others. 
  1. [73]
    To illustrate that submission,  the Appellant contrasted the principles or approach set out in public documents produced by Powerlink (with which Powerlink usually complied) and some specific documents (primarily email correspondence) in relation to dealings with individual landholders which, he submitted, showed that Powerlink went outside its usual policies and practices on some occasions.  He focused on two separate but related matters:
  1. (a)
    arrangements for access by Powerlink and its consultants to individual properties;
  1. (b)
    the payments which Powerlink would or would not make to individual landholders.
  1. [74]
    Usual arrangements that Powerlink sought to make:  The steps that Powerlink usually follow for obtaining access to land that might be affected by power lines or substations are described earlier in these reasons (at [4] to [8]). 
  1. [75]
    In relation to the types of payments which Powerlink would or would not make to individual landholders, the Appellant gave evidence that the policy of Powerlink was:
  1. (a)
    to pay legal costs associated with the change of ownership, but not negotiations for access;
  1. (b)
    to pay for general disturbance during construction;
  1. (c)
    to make payments later in the project for access during construction;
  1. (d)
    to have access agreements to ensure that Powerlink has ongoing access to its transmission line easements. 
  1. [76]
    In support of his understanding of the policy, the Appellant referred to the following passage provided to him by Mr Briggs on 22 March 2013, apparently to go in a letter to particular landholders:[11]

"The Acquisition of Land Act 1967 does not provide for 'miscellaneous costs'.  Compensation payment resulting from the acquisition of land rights under the Act are based on heads of claim.  These heads of claim do not include any miscellaneous costs."  (Exhibit 17 document 36)

  1. [77]
    That proposition and others were set out in the following draft of a proposed paragraph prepared by Mr McBride[12] on 24 March 2013 for use by the Appellant:

"The ALA allows for compensation for a number of factors resulting from the acquisition including - any change to property value resulting from the easement acquisition, the number of structures on the easement, possible visual impacts, impacts on farming activities which increase the costs of operation.  The ALA also requires that the dispossessed owner be paid reasonable legal and valuation costs associated with the filing of a claim for compensation.  Powerlink will pay those costs once a claim under s 19 of the ALA has been made and, importantly, once compensation has been settled.  Legal and other professional fees prior to the acquisition of land (easement and freehold) will not be paid."  (Exhibit 17 document 37, emphasis added)

  1. [78]
    The Appellant gave evidence that he understood that although limited legal fees could be paid, Powerlink did not "pay people to argue with us about access."  The Act talks about paying for damage, it does not talk about paying for access.
  1. [79]
    Individual arrangements with some landholder:  The Appellant's main example of the way in which Powerlink acted contrary to its policy involved dealings with Gary and Kerry Ladbrook ("the Ladbrooks") whose property was the proposed location for a substation and transmission line.  Evidence was also given in relation to negotiations with some other landholders including the Taylors and Hairs (whose properties are immediately south of the Ladbrooks' property), and with Todd Wathen and Richard Golden (whose properties are to the south-east of the Ladbrooks' property).  Powerlink proposed to erect transmission lines across those properties (see Exhibits 1 to 4).
  1. [80]
    In considering this evidence, it should be noted that, according to the Appellant:
  1. (a)
    he was taken away from the negotiations in about the middle of June 2012 "with the effect that negotiations and consultation on my project was being done by others;"
  1. (b)
    he was allowed back into the field about November 2012 ("only when the fieldwork and negotiations went sour") but was "in the background for all communications, or say all negotiations" with the Ladbrooks, Taylors and Hairs, and, although he had some email communications with those people, he was "doing what I was told;" 
  1. (c)
    during that period, Mr Owen more or less ran the project but others in Powerlink approached the Appellant asking for records of conversations with landholders and other records which he did not have.  That situation, he suggested, illustrated his statement in an email to Mr Owen on 27 August 2012 that there would be confusion about lines of communication and responsibility. 
  1. [81]
    It should also be borne in mind that the Appellant's stressors cover the period from November 2012 until June 2013.  Consequently much of what follows provides background to those stressors.
  1. [82]
    Ladbrooks: The Appellant gave evidence that, contrary to the usual process, the Ladbrooks would not allow the consultants involved in the EIA to have access to their property until Powerlink had fixed an alignment that was acceptable to them, much of which was just to the north of their property and on their neighbour's property (i.e., John Zerk's property) running parallel with that boundary (see Exhibits 1, 2 and 3).  That route was possibly 1.5 kilometres longer than the more direct route north-west across their property from the proposed location of the substation (see Exhibit 3).  The Appellant referred to a contract negotiated between Powerlink and the Ladbrooks which included payment for access and for legal fees associated with it, and included maps showing a narrow 300 m corridor from the Yuleba North Substation northwards across their property on which the alignment was to be placed.  He also gave evidence that the agreement was arrived at over his objections, in particular to the inclusion of maps "as this would lock Powerlink into that alignment unless the contract was repudiated.  Either way, Powerlink would be in the wrong."  The Appellant said that he was also concerned that the process for locking in the alignment was happening without reference to Mr Zerk who, he suggested, would have kilometres of additional transmission lines on his property and should have been consulted as much as the Ladbrooks.
  1. [83]
    The types of issues raised by the Ladbrooks, and the ways in which they were dealt with by the Appellant and other Powerlink officers are illustrated by the following chronology.
  1. [84]
    In an email dated 1 July 2012, the Ladbrooks sought confirmation that Powerlink "would cover all reasonable legal advice that we may require," noting that resource companies offer up to $7000 without question (Exhibit 17 document 3).
  1. [85]
    An issue arose involving correspondence about access arrangements.  The Appellant gave evidence that he sent the Ladbrooks a permission to enter form, which was a standard form plus one paragraph that the Ladbrooks had insisted upon in relation to weed hygiene.  Because he could not get the document to the other officer who was to meet with the Ladbrooks, the Appellant sent it directly to them by express mail so that it arrived in time before the other officer visited them.  The Appellant understood that "for some reason they took it as being overbearing on my part, which it was not … It was our standard document and they'd requested it." 
  1. [86]
    A series of emails dated 11 and 17 August 2012 between the Ladbrooks and Mr  Owen (Exhibit 17 document 7) commenced with the Ladbrooks referring to a meeting on   27 July 2012 which opened with an apology for previous correspondence received by them from the Appellant, which Mr Owens agreed was "inappropriate and should never have been sent."  They record that Mr Owens used the expression "damage control" and assured them that, with the newly established meeting on Powerlink's internal roles and responsibilities, this "abrasive approach" would not occur in the future.  The staff concerned had been spoken to and Mr Owen hoped this would allow them "to move forward in a good partnership."  The Ladbrooks understood that "all internal matters within Powerlink were now under control," and that they would be involved in the planning process for the easement across their land (that could take up to 10 or 12 consultations).  They recorded that Mr Owens apologised for, and advised them to disregard, the Appellant's letter dated 18 July 2012 requesting a permission to enter form.  They asked whether this meant they would be covered for the legal costs.
  1. [87]
    It is appropriate to note at this point that the Appellant was concerned that Mr Owen had apologised at his expense rather than explaining the story behind his letter.  Consequently, Mr Owen "comes out of it looking like a good guy" and the Appellant is "the bad guy and they say it twice."  In an internal email dated 15 October 2012,[13] Mr Owen described the circumstances that may have led to several landowners (including the Ladbrooks) complaining to the local member of Parliament about the Appellant's overbearing attitude.  He suggested that the Ladbrooks were pleased to receive the letter from the Appellant but that several issues needed to be resolved.  Subsequent emails involving several neighbours may have triggered the Ladbrooks' complaint.  Mr Owen wrote:

"From my observation and involvement, Grant has always presented himself in a professional manner and followed the due process.  He has addressed the landowners' questions and concerns.  I consider that the adverse feedback is the result of the community 'Shooting the messenger' and has no legitimate grounds.

I fully endorse Grant's actions and herewith express a vote of confidence in his ability."  (Exhibit 17 document 8)

The Appellant, however, observed that although Mr Owen was apologising to him, it was Mr Owen's style to be agreeable with the Appellant and then to be "off with somebody else and he is agreeable again and it just goes on and it's really hard to deal with." 

  1. [88]
    In their email dated 11 August 2012, the Ladbrooks also noted that the second reason for the meeting on 27 July 2012 was in relation to no consultation with them as the landholder on study corridors and powerline alignments.  They hoped that certain mapping had been taken into account so that the power line from the proposed substation would pass through their property in a straight line between two main dams, rather than bisecting their property, water points and cultivations.  They identified variations on that alignment, and referred to MetroCoal's proposed pipeline through the same area as where they would prefer the powerline to go.  Although concerned that they were getting "limited consultation" because of staff changes at Powerlink, they hoped that "a new alignment will allay our concerns."  They also mentioned other matters.
  1. [89]
    Mr Owen replied to the Ladbrooks by email dated 15 August 2012 (and copied it to the Appellant).  He advised them:
  1. (a)
    Ross Thompson would be taking over the consultation role and that Mr Owen would take a role (overseeing the overall project and landowner contacts) to ensure there was a "continued transfer of knowledge and information;" 
  1. (b)
    that he had referred their issues regarding compensation and costs to another person[14] for response (which he understood had been sent in a separate email followed with a telephone conversation);
  1. (c)
    that until Powerlink understood the plans of MetroCoal, it could not commit to any alignment but would "make every endeavour to accommodate your requests" and had taken note of the property development, dams, cultivation etc and would ensure these were addressed in the development of the study alignment;
  1. (d)
    that, due to matters beyond their control, the Appellant did not meet with MetroCoal as scheduled and the meeting was being rescheduled;
  1. (e)
    that, as part of Powerlink's internal reporting process, the business unit manager (Mr Miller) was aware of the issues regarding this project and land and concerns.
  1. [90]
    In their reply by email on 16 August 2012, the Ladbrooks expressed their inference that they had "now been pushed to the back of the queue" and asked for a copy of the proposed (preliminary) powerline location.  They asked for Mr Owen's opinion on whether their legal costs were now covered ("due to" the letter sent by the Appellant) and asked for a written apology for that letter.  They also raised issues about the possible relocation of the proposed substation on less productive land and the extension of the study corridor to east of the substation and of their dam (as a "necessary step to help reduce impacts on our viability/sustainability and succession plans").  They asked whether it was necessary to resume 15 hectares when another substation would be no more than three acres.  They requested replies by email with a map of the proposed (preliminary) powerline and a written apology.  That would "be very much appreciated and would go a long way in assuring us we will see change due to genuine consultation with yourself and help to create a more positive view on Powerlinks ability to consult correctly and understand our rural issues."
  1. [91]
    Mr Owen sent an email to the Ladbrooks on 17 August 2012 providing interim responses to some issues and an aerial photo showing alignment options, including one that could be adopted if MetroCoal indicated that their lease area would extend in accordance with the proposal.  He also noted that all substations are different due to the variety of voltages and the number of lines in and out of them.  He was awaiting advice regarding the proposal there so that he could source photographs of the most likely ultimate development (Exhibit 17 document 7).
  1. [92]
    On 27 August 2012, Mr Owen sent an email to the Appellant in relation to the proposed substation site and line north in the Ladbrooks' property.  He stated that he would send through the KMI for the entire line "as it is somewhat to the west of the preliminary alignment" (Exhibit 17 document 7).
  1. [93]
    The Appellant illustrated how he had expressed concerns about the arrangements being entered into with the Ladbrooks.  On 12 November 2012, the Appellant organised a meeting to discuss the "early access/license to occupy that Andy [Owen] is negotiating with the Ladbrooks (site of the Yuleba N substation on CP.02155)."  The meeting request message from the Appellant continued:

"There are a couple of issues to do with how this is unfolding that are really concerning me.  I would value input from you all.

Andy, please do not make any further undertakings or information with the Ladbrooks for now."  (Exhibit 17 document 9)

  1. [94]
    According to the Appellant, the meeting with him was attended by Ms Gray,                Mr Baker,[15] Mr Owen and Mr Briggs, and that everyone agreed that it was not a good idea to have those maps in the agreement. The Appellant asked Mr Owen, who was negotiating the agreement, whether he really wanted to have maps included as they would become terms of the contract.  According to the Appellant, Mr Owen said he would take them out.  One day later, the Appellant found that the maps had not been taken out and asked him again.  Mr Owen said the maps were not going to be in the agreement, but they were there some days later.
  1. [95]
    On 15 November 2012, Mr Owen sent the Appellant by email a plan for inclusion in the licence agreement.  That day he also sent to the Ladbrooks and their solicitor, Ari McCamley, an updated Licence Agreement.  It appears from that correspondence that:
  1. (a)
    the Licence Agreement provided for Powerlink to provide the Ladbrooks with notice prior to accessing their property;
  1. (b)
    the Licence Agreement included agreement to pay a fixed sum for the Ladbrooks' legal costs that are directly related to the preparation and negotiation of the licence agreement (with the fixed sum based on figures provided by the solicitor), contingent upon the Ladbrooks signing the agreement;
  1. (c)
    the Premises Plan annexed to the Licence Agreement had increased in area to include the area of the original Study Corridor (to satisfy Powerlink's obligations under the Sustainable Planning Act 2009) and a second area extending to the east to accommodate the possible MetroCoal amendment;
  1. (d)
    Powerlink required a signed Licence Agreement no later than                                23 November 2012, otherwise it would "have to utilise our other rights."  (Exhibit 17 document 15)
  1. [96]
    According to the Appellant, he was not involved in the discussions about legal fees with the Ladbrooks.  He stated that he understood that, consistently with the policy noted above, payments of the type made to the Ladbrooks had not been made previously.  His contention was that the project was going badly and Powerlink had to cut corners to remove the obstacles.  The Appellant also stated that, had the Ladbrooks refused to grant access, Powerlink had standard procedures under s 36 that had already been used in this project.  In his view, the s 36 route would have taken less time than to negotiate the agreement. 
  1. [97]
    There was internal email correspondence on Tuesday 20 November 2012 about the possible issue of notices under s 36 of the Acquisition of Land Act 1967 in relation to some land owners in the Surat Basin.  One email from Mr Briggs noted that the Ladbrooks had until the close of business on Friday to provide Powerlink with a signed access agreement.  "Should a signed agreement not be forthcoming, Powerlink will consider the issuing of s 36 to the Ladbrooks to access their property."  He stated, however, that there was a possibility that the Ladbrooks would sign the agreement. (Exhibit 17 document 11, see also document 12)
  1. [98]
    The Ladbrooks then had an exchange of emails on 21 and 22 November 2012 with Mr Owen in relation to the areas of possible study (including beyond the area 300 metres either side of the potential study alignment) and logistical arrangements for the conduct of studies on their property (Exhibit 17 document 15).
  1. [99]
    On 20 November 2012, the Appellant replied to Mr Owen by asking whether they needed "to have a line in there at all?"  He asked whether they could not just show "the area" which was his understanding of the last two meetings.  Mr Owen replied by email on 21 November 2012 stating that the area indicated was "consistent with the 300 m offset from the MetroCoal and accepted, notional alignment" and was a "Potential study alignment" "for discussion."  He stated that the EIS and approval process still needed to consider principles of ESD "before anything can be locked in."  The Appellant replied that day stating that Mr Owen did not answer his question.  He continued "My understanding was that NO alignment would be shown.  I gather that regardless, it has gone out with an alignment shown?"  (Exhibit 17 document 13)
  1. [100]
    Mr Owen replied to the Appellant by email on 22 November 2012:

"It is your preference that no alignment was to be shown.  The hachured area surrounds the notional Metrocoal alignment and focuses on an area of interest.  See Amanda and Andrew S's emails regarding the extent of the study.  Also note mine from 4:24 yesterday reinforcing the urgency.

At some stage we need to show the landowners the revised study alignment which is being considered for the line route investigations.

I am currently in a discussion on this issue with the ladbrooks, which is better dealt with at this stage than at the objection or designation submission stage."  (Exhibit 17 document 13)

  1. [101]
    On 22 November 2012, the Appellant sent an email to Ms Gray, Mr Baker, Mr Briggs and copied it to Mr Owen.  It read:

"Am I going crazy?

Did we not go around the table at the meeting on 12/11/2012 and agree that an alignment shown as part of the Ladbrooks agreement would be a really bad idea?

And did we not agree at the meeting with Mark McBride[16] on 15/11/2012 about the same thing?

And has it not come to pass that the Ladbrooks are using the alignment as 'the' alignment for what is in effect a contract, even before the agreement has been signed?"  (Exhibit 17 document 13)

  1. [102]
    Mr Briggs replied to the Appellant that afternoon by email.  The email was also sent to Ms Gray, Mr Baker, Mr Owen and Kerrie Brown.[17]  He wrote:

"As discussed in our recent meeting, preference is usually given to ensuring that that until a environmental consultant has had the ability to survey/ground truth the study corridor, Powerlink should not be taking [sic talking] specifically to landholders about possible alignments or alignment changes within this study corridor.  Any such discussions would be premature and potentially would be subject to challenge as the alignment being discussed would not consider a balance between social (such as landholder concerns), environmental (consultant observations as the environmental experts) or economic aspects of the project.  If an alignment is needed for discussion purposes, then the alignment should be that reflected in the PAR[18] prepared for the project which has considered such aspects from a desktop assessment.

With the current project, it is understood that discussions occurred with landholders about alignments different to that presented in the PAR. Information provided to landholders in the past cannot [be] retracted and we will need to manage how to best address this moving forward.

It is also worth noting that environmental aspects cannot be ignored when making decisions about alignments unless the environment is homogenous within the study corridor/locality.  Changes to the preliminary alignment in the PAR should only occur after access to properties and ground truthing has been carried out.  This usually occurs after field surveys and before the release of the final EIS - this is when Powerlink ideally should be discussing specific alignments with landholders.

The challenge faced is some landholders have expectations in relation to potential alignments before ground truthing has been completed, and that they require acceptable alignments to be presented to them before property access is given.  This is something that Powerlink has not faced in the past to the extent on these projects and has possibly been influenced by the methods [of] gas companies to obtain access to properties.

I understand your concerns in relation to including an alignment in any access agreement with landholders, especially if such an alignment is different to that in the PAR.  As discussed and was agreed in our recent meeting, access negotiations should be based on access to the study corridor and inclusion of areas which the landholder may wish Powerlink to also investigate (the additional area does not necessarily mean Powerlink will place a line there, but allows Powerlink to assess/address alternative alignments landholders believe Powerlink should pursue).

I am sure Andrew understands the risks of deviating from the above and any negotiations with the Ladbrook family considers these risks."  (Exhibit 17 document 14)

  1. [103]
    The Appellant described that email as:
  1. (a)
    setting out the proper policy;
  1. (b)
    being reassuring to the Appellant while providing a "gentle dig in the ribs" to Mr Owen;
  1. (c)
    not addressing the fact that the maps are in the agreement even though at the previous meeting they had agreed it was a bad idea.

He also characterised the lack of response from Ms Gray and Mr Baker as indicating that they expected Ladbrooks to insist on the agreement, and that they "were okay with this" even though it was "a big bit shonky." 

  1. [104]
    The Ladbrooks signed a Licence dated 28 November 2012, extracts of which were in evidence (Exhibit 9).  Those extracts show that:
  1. (a)
    a licence fee of a specified amount was to be paid;
  1. (b)
    the licensee would have access to and from those parts of the land identified in the plan as "Approved Study Corridors" and "Addition to Study Corridor," excluding the main residence and farm infrastructure within 200 metres of the main residence;
  1. (c)
    EIS investigations could be carried out by GHD to commence on                          30 November 2012;
  1. (d)
    the licensee was to give notice of its intention to access the property, and the anticipated duration and permitted use to be carried out during each period of access;
  1. (e)
    the licensee would reimburse the licensors the fixed specified amount for the reasonable legal costs and outlays associated with the negotiation, preparation and execution of the licence agreement.
  1. [105]
    On 28 November 2012, Mr Miller sent an email advising of the "Good News" that the landowners had agreed to the early access agreement for the "critical substation site" on the Ladbrooks property.  He noted that would allow on-site environmental work to proceed without the need for a s 36 notice.  Ms York, the CEO of Powerlink, congratulated Mr Miller and the team working on this.  Mr McBride, legal counsel for Powerlink, replied that Powerlink "did give a fair bit away," but Mr Miller stated that "not having the central substation site locked down early in the process can lead to rework costing hundreds of thousands of dollars."
  1. [106]
    The Appellant said that he "hit the roof". He replied to Mr Miller (and the other addressees) as follows:

"I could not disagree more.

The landholder consultation process of which this is a part has been circular, fainthearted, counter to PQ's processes and its overall interests, and has cost my project at least six months.

This agreement includes an alignment against my wishes and against an agreement of all Network Property staff involved that could not have been clearer.  I firmly believe this will come back to haunt us.

I was sidelined throughout this but now it becomes a problem for me to deal with.

For example, Todd Wathen down the road was initially hostile and uncooperative.  Since I took back landholder consultations in October he has been cooperative.  He also has a substation site on his property (NB the APLNG gas plant at Combalula i.e. Dinoun S will remain his land).

I request that the same payments (albeit with less legal costs) and the same advantages be given to Todd Wathen also.  Otherwise my name and PQ's name will be mud with Todd Wathen in particular and the other landholders in general once the Ladbrooks settlement is known."  (Exhibit 17 document 17)

In his oral evidence, the Appellant explained that Mr Wathen would be more affected than the Ladbrooks as he had a gas plant (which is several hectares of pumping station and dewatering station) as well as a greater length of transmission line and a substation.  The point the Appellant was making was that if Powerlink was going to do things for the Ladbrooks they should also go out to Mr Wathen. 

  1. [107]
    On 29 November 2012, Mr Briggs sent an email to the Appellant suggesting that they catch up with Ms Gray and possibly Mr Miller the next day to discuss "some business decisions which are made from time to time and which can impact on the delivery of a project."  He noted that such decisions are often outside the direct control of the Project Manager, but need to be accommodated through the delivery of the project.  He continued:

"These decisions may also be contrary to our own thoughts or the approved project schedule and estimate…however, we (PMs and SPMs) often do not fully appreciate the political, legal or business environment that influence the decisions which are made (and why possibly others are paid the big biscuits to make such decisions).

There are possibly a number of business decisions associated with the APLNG project which will impact on the delivery of this project.  These decisions will also create lessons learnt for future non-regulated (fast tracked) projects.

We can discuss further when we catch up."  (Exhibit 17 document 18)

  1. [108]
    On 5 and 6 December 2012, there was an email exchange between the Ladbrooks and Powerlink officers about access to the Ladbrooks' property for the week from 17 to 21 December 2012 to carry out geotechnical investigations in relation to the project.  Mr Owen then advised Mr Thompson about how to deal with an access issue.  On        7 December 2012, the Appellant sent an email to Mr Owen expressing his preference that Mr Owen "go through me when making arrangements like this.  Saves multiple lines of communication and confusion."  Mr Owen replied by email, apparently agreeing but stating he was dealing with it as "an access issue relevant to the conditions detailed in the Agreement."  He asked whether the Appellant wanted to "catch up" about some issues.  The Appellant replied:

"Regardless, I want you to do me the courtesy of going thru me as the Project Manager.

As before: if you want to run the project, run the project, as the Project Manager.  Otherwise, allow me to run it.

Advice is welcome, but it is not acceptable to me that you come in from outside and make decisions leaving me with all the responsibility but not the control."  (Exhibit 17 document 19)

Mr Briggs then sent an email requesting a meeting with the Appellant and Mr Owen as "we need to sort this one out."

  1. [109]
    On 4 January 2013, Mr Owen sent to Mr Briggs and other Powerlink officers (but not the Appellant) his proposed response to the latest email from the Ladbrooks.         Mr Briggs replied in detail to Mr Owen and the other addressees and the Appellant.  He commenced:

"It is important to include in the response to the Ladbrooks that much of the information raised in their correspondence will be addressed in the EIS/EMP and answering specific questions may be seen as pre-empting the findings of the environmental assessments and the EIS.  The Ladbrook family, along with all other landholders will have the opportunity to review and comment on the draft EIS/EMP.  …"

Having made specific suggestions about proposed responses to the numbered items, Mr Briggs concluded:

"Please also ensure all that Grant [i.e., the Appellant] is cced in any correspondence relating to the substation development on the Ladbrook's property, especially since Grant is the PM for this project."  (Exhibit 17 document 22)

  1. [110]
    The Appellant gave evidence that the approach taken by Mr Briggs was correct, and was the policy as Mr Briggs had explained to the Appellant previously.  It was consistent with the statement in Project Newsletter 1 that "All comments received on the Draft EIS reports will be individually responded to and addressed in the Final EIS reports, and submitters will receive a formal response to any matters raised."  The Appellant noted, however, that he was unaware what the numbered demands made by the Ladbrooks were because he was "out of the loop."  He also noted the "bit of a dig" at Mr Owen in the final sentence of the email.
  1. [111]
    The Appellant tried to arrange a discussion with Mr Owen about the Ladbrooks and a meeting before the release of the EIS.  When the electronic invitation was declined, the Appellant wrote to Mr Owen on 31 January 2013:

"My view as the relevant PM is that there should be no meeting pre the release of the draft EIS.  This was the previous understanding.

If necessary, I (and Nicole if she agrees) will provide a briefing to the Ladbrooks post release, as for other stakeholders with multiple project involvement.  This was the previous understanding."  (Exhibit 17 document 27)

  1. [112]
    Mr Owen replied that day saying that he understood the Appellant's "frustrations."  He explained that when the matter was discussed previously the draft EIS was scheduled for release in early February and the review of the Ladbrook issues by Michael Brown ("MB")[19] had not been undertaken.  It now seemed that the draft EIS may be available several weeks later than indicated, and Mr Brown's emails had reinforced "recommend all relevant PQ staff attend meeting with landowner prior to release of Draft EIS."  That approach was about reducing the risks of an extended objection process with the Ladbrooks.  Mr Owen concluded:

"I am prepared to assist where required to deliver the project (with my head suitably retracted).

Willing to discuss and chart a way forward."  (Exhibit 17 document 27)

  1. [113]
    On 1 February 2013, the Appellant replied to Mr Owen:

"Thanks, to you and to MB, but this has been discussed and the bottom line is that the Ladbrooks will do what the Ladbrooks have always done, and we are already locked in to dealing with their inevitable objections and submissions.

Keep in mind there is precious little to be gained and a lot to risk by meeting them out of sequence.  Landholders up and down the line will demand the same and also take it as special treatment.  I have answers to all of their gripes to date but wouldn't have an answer to that one."  (Exhibit 17 document 27)

  1. [114]
    A series of emails between the Ladbrooks and Powerlink officers from                              31 December 2012 which traversed issues raised by the Ladbrooks culminated in an email dated 5 February 2013 from them to Mr Owen and others (including CEO Merryn York and the Appellant).  That email concluded "We require a meeting in the next week and our issues need to be addressed prior to the release of the draft EIS." (Exhibit 17 document 28)  In his oral evidence, the Appellant highlighted that statement as indicating where the pressure on Mr Owen was coming from.  He stated that if Powerlink agreed to the demand that their issues be addressed before the release of the draft EIS, Powerlink would be in breach of its obligations under s 207 of the Sustainable Planning Act 2009 in relation to adequate environmental assessment.[20]  In another email that day, the Ladbrooks wrote:

"As previously discussed a meeting is required prior to the release of the draft EIS to address impacts not yet addressed and changes not discussed or advised to us.  Grant indicated this afternoon that he believed this would be occurring.  We would be more than happy to also include our affected neighbours (The Taylors and The Hairs) in these discussions as well as there appears to be little understanding of rural economic issues at play here."  (Exhibit 17 document 30)

  1. [115]
    The Appellant convened a teleconference on 6 February 2013 involving Mr Owen, Mr Briggs and Ms Gray.  In a subsequent email he described it as an "animated phone hookup" with a "pretty high temperature at times" and wrote:

"Grant Roberts did not say someone would be out to talk to them about what was in the EIS before we had finished it.  Having just come off an animated phone hookup where I made it clear that I believe this is a very bad idea, this is improbable to say the least.  I did say that at the very beginning that their recent emails were being addressed by others and they would be hearing from us shortly.  Also, that after the draft EIS was out we would be having individual briefings for all those affected by multiple sections."  (Exhibit 17 document 30)

  1. [116]
    The Appellant also referred to an email from Mr Briggs on 6 February 2013 in response to an email from another Powerlink officer enquiring whether it was possible to provide to APLNG for fact checking sections of the draft EIS that describe their works.  Mr Briggs' reply included the following statements:

"The draft EIS is about the Powerlink project and not about the APLNG project (there is a clear separation of responsibilities). …

I believe that we should not be providing extracts of the draft EIS to APLNG before the draft EIS is publicly released. APLNG have the opportunity to comment on information contained in the draft EIS like any other stakeholder involved in the project.  If they believe that any information misrepresents their view on the above, then there is opportunity to let Powerlink know before the EIS is finalised and submitted for designation.

It is worth noting that we do not provide parts of EIS to landholders or other stakeholders to ensure that the information contained in the draft EIS is consistent with their understanding of their own interests… Landholders and other stakeholders have the opportunity to correct the record through (Powerlink Manual) EIS consultation process.  The approach with APLNG should be no different."  (Exhibit 17 document 29)

The Appellant described this response as being "firm" with APLNG, and making the point that Powerlink does not provide extracts from the draft EIS to landholders or other stakeholders. 

  1. [117]
    In support of his concerns, the Appellant referred to an email dated 23 January 2013 between Powerlink officers (which was copied to the Appellant) which advised that the Minister could progress to decide whether land should be designated if satisfied that a precondition to designation could be fulfilled.  For that decision to be lawful, it must advance the purpose of the Integrated Planning Act 1997 by seeking to achieve "ecological sustainability," a term defined in s 1.3.3 as a "balance" that integrates specified ecological, economic development, and cultural and other factors.  The advice focused on the need to balance competing criteria in a manner consistent with the applicable laws.  It continued:

"It is critical that Powerlink's approach to site and alignment selection (viz. carrying out the EIA) is balanced and does not give priority to (or biased towards) the views of one interest over another (specifically when requested by a stakeholder).  Doing so exposes Powerlink to challenges as the processes required to satisfy designation requirements have not been met."  (Exhibit 17 document 24)

  1. [118]
    According to the Appellant, Powerlink was usually "very firm" on this.  One could make a special pleading and it would be taken into the study and Powerlink would come up with "the least overall impact alignment."  In his view, "That's how it should work." 
  1. [119]
    The Appellant referred to another email exchange with the Ladbrooks in April 2013 about the mapping of Semi Evergreen Vine Thicket as part of the EIS process.  The Ladbrooks sent a critical reply to Powerlink officers including the CEO and to the offices of some members of Parliament.  The CEO wrote that "irrespective of intentions, this interaction is not what we need" (Exhibit 17 document 38).  A draft reply to the Ladbrooks was prepared by Mr Briggs in consultation with others on            3 and 4 April 2013.  He also stated to the relevant Powerlink officers that:
  1. (a)
    Powerlink needed to ensure that any correspondence or comments received during the submission period on the draft EIS was treated as a submission; and
  1. (b)
    whilst landowners may wish Powerlink to modify its processes to suit their needs, Powerlink needs to be careful that it does not expose itself to potential challenges and hence needed to confirm how Powerlink would manage any correspondence about the draft EISs during the submission period  (Exhibit 17 document 39).
  1. [120]
    Gary Ladbrook also contacted the EIS consultant, Dr Andrew Small, on 5 April 2013.  Dr Small advised the Appellant in an email that day of the contents of the conversation, and the Appellant spoke to Dr Small by telephone.  In an email about these communications sent to the CEO of Powerlink and other relevant Powerlink officers, the Appellant stated that the "system has worked" and it appeared that            Mr Ladbrook was "somewhat mollified."  He asked if he could circulate to the electorate offices of the members of Parliament to whom the previous emails were sent (Exhibit 17 document 40).  In his oral evidence, the Appellant described himself as "a little bit of a smart alec" about some aspects of his email.  But he did not want to leave people with the idea that the Ladbrooks had "a legitimate complaint and I was being a bastard."  However, he was not allowed to circulate the email as requested.  Rather he "never did hear - like, it just faded away."  In his assessment, that was another example of weak management and it "really upset" him. 
  1. [121]
    The Appellant described the information sessions in April 2013, including one at Yulebah before Easter but after he met with Mr Wathen.  By that stage, Mr Baker was "the new face of the project" and the Appellant was "in the background and, once more, it was a case of let the experts show you how it's done."  It was Mr Baker's and Mr Miller's show.  He was told by corporate communications in Powerlink that there were things they did not want him to talk about.  The Ladbrooks arrived and, according to the Appellant, they harangued him loudly for about 20 minutes in the hall in front of the maps.  He described it as a continuation of the meeting on 6 February 2013, which was the first time he had spoken to the Ladbrooks face-to-face.  Other Powerlink officers attempted to intervene, but to no avail. Eventually Dr Small assisted, and then Mr Baker and Mr Miller joined them.  After the Ladbrooks had "vented" on the Appellant things became "very friendly at the end."  The Appellant contended that, even after Mr Baker had been appointed as the "new face" of the project, the Appellant was "still the face of the project, I was still held responsible and I still pay the cost when people wanted to vent."  He described the others as being "missing in action" for much of that session, and said that afterwards the only acknowledgement he received was from Leah Davis who told him that he argues too much and should have agreed with what the Ladbrooks said.  According to the Appellant that was "the corporate communications way, but that was not going to help.  That's just me being evasive." 
  1. [122]
    Mr Baker observed that the Ladbrooks were at the information session for quite a period of time and spoke to quite a number of people, including himself and the Appellant.  They were concerned about the impact of the project on their property and were "quite animated," "quite vocal," "pretty aggressive" and "quite angry and upset at Powerlink in general."  Mr Baker did not recall them speaking separately to the Appellant.
  1. [123]
    The information session was some five months after the licence agreement with the Ladbrooks was in place, and Mr Baker recalled that there was not a lot of discussion or questioning from land owners about that agreement. 
  1. [124]
    To put the special dealings with the Ladbrooks in context, the Appellant referred to documents provided to certain Powerlink employees who had agreed to be part of the community sessions in May 2013 for the Yuleba North to Clifford Creek and Yuleba North to Dinoun South Transmission Lines Project.  Among those documents was "Key messages and frequently asked questions," a nine page document marked Internal Use Only - Not For Distribution (Exhibit 17 document 44).  It set out, among other things, Powerlink's standard approach to compensation, which included paying compensation as per the Acquisition of Land Act 1967.  Compensation is based on a fair market value assessment and considers a range of factors such as any changes to property value, the number of structures on the property and visual impacts.
  1. [125]
    The Appellant highlights the following passages from that document:

"What other things might be included in compensation?

  • Compensation is worked through on a case-by-case basis with landowners.
  • Other allowances may include reasonable costs for independent legal and valuation advice.
  • Powerlink also pays an allowance to cover reasonable inconvenience and any impacts that might arise during the construction phase.

Action: compensation discussions are to be referred to Guy Naish and/or Bob Baker."

…

"Are you paying for certain things for Ladbrooks and will you pay me for the same?

  • I'm sure you can appreciate that for privacy reasons, I can't discuss matters specific to another landowner.
  • What I can say is that Powerlink has heard the feedback provided by landowners about their concerns in relation to our compensation process. With this in mind, we appreciate landowners want the chance to be better informed at an earlier stage about the level and type of compensation they may claim, so we will be talking with landowners about how we might assist with that in the weeks and months ahead.
  • Part of the role of the Local Relationship Manager, Bob Baker will be to work with landowners to identify what's important to them during the consultation process. Bob is based in the local area several days a week would only be too happy to meet with you to discuss this further.

Action: Introduce Bob to continue discussions around improving engagement."

  1. [126]
    The Appellant characterised the response to the latter question as being told not to talk about the issue. If any one asked about payments to the Ladbrooks they were not to be told anything.
  1. [127]
    Mr Baker explained that, in response to some community feedback, Powerlink was changing the way it engaged with landowners in the area and, in early 2013, had appointed him to be a Local Relationship Manager.  He was trying to present himself and explain things to landholders. 
  1. [128]
    Mr Miller described the briefing notes of 10 May 2013 as being about how to defer from the issues as politely as possible, but he acknowledged the reality that landholders will hear from other landholders what happened. 
  1. [129]
    The Appellant gave evidence that, although he would have liked to debate with his managers[21] the wisdom of the agreement with the Ladbrooks he would "talk to people about it, and they'd look out the window or they look over my shoulder, or it was just sort of, like, no one wanted – no one actually had an argument, they just didn't argue." 
  1. [130]
    Wathen: Mr Wathen at Dinoun South was, in the Appellant's assessment, in at least the same situation as the Ladbrooks.  He had a greater length of transmission lines, a substation and a gas plant on his property.  So "in overall terms he's much more affected than anybody." 
  1. [131]
    Mr Wathen could not attend the information session in Roma but met with the Appellant and other Powerlink officers including Mr Baker on 23 April 2013, before that information session.  According to the Appellant, Mr Wathen raised the issue of getting paid for access because he already knew about the Ladbrooks' agreement and was giving Mr Baker the opportunity to respond.  The Appellant said that Mr Baker made a statement (consistent with the email from Mr McBride) that the official policy was that Powerlink did not do that.  Mr Wathen looked at the Appellant "in confusion."  The Appellant was "mortified" and apologised to Mr Wathen after the meeting, saying that Mr Wathen should send a letter so that Powerlink could not "duck" the issue.  The Appellant characterised his suggestion to take that action as giving Mr Baker (the "new face" of the project) an opportunity to deal with the issue, to "come clean," with "minimum embarrassment" to himself.  The Appellant agreed that by telling                 Mr Wathen to put in that request he was, in effect, telling Mr Wathen that he (the Appellant) was not responsible for making the decision. 
  1. [132]
    Mr Baker gave evidence that he recalled the meeting with Mr Wathen and the Appellant in Roma but did not recall whether Mr Wathen raised the prospect that he might be paid some money, or any discussion about payments to Mr Wathen. 
  1. [133]
    Mr Wathen did not give evidence.
  1. [134]
    On 17 May 2013, Mr Wathen sent an email to the Appellant in which he stated that during the previous 12 months he had granted Powerlink access to his property Nullin for a range of activities.  He understood that in the future Powerlink would be seeking his agreement on access for other purposes, including early works relating to construction of a substation.  He continued:

"After speaking with other landholders who are involved with the same power link project, we believe there have been up-front payments paid for the same works that have been and will be undertaken on Nullin.  We therefore are requesting that a similar arrangement is made with us.  After extensive negotiations with APLNG for similar activities, we believe that a payment for a limited time arrangement similar to the lease of $10 000 for the fore mentioned works should be paid to us before any further activities are undertaken on Nullin.  I look forward to your reply."  (Exhibit 17 document 45)

  1. [135]
    That day, the Appellant forwarded the email to Mr Miller, Mr Baker, Mr McBride, Mr Briggs, Ms Azzopardi and Ms Davis with the following message:

"This is as I predicted way back on 29/11/2012 when we did the agreement with the Ladbrooks.

This will need to be expedited as I was about to ring him about the surveyors for the DiS site turning up on 25/5 2013 (Saturday week)."  (Exhibit 17 document 46)

  1. [136]
    On the Appellant's assessment, the situation at this stage was that there had been discretionary payments made against precedent and declared policy to some people but not others, even when they asked, until those others wrote to Powerlink saying that they knew what was going on.  Although the Appellant repeated that as Project Manager he was responsible, he acknowledged that it was not his decision whether somebody was paid nor was it part of his role to approve such payments to landholders. 
  1. [137]
    The Appellant's expressed concern was that, in the eyes of the landholders, he was the one who had told them what the policy was and as the Project Manager was the person to whom people spoke.  He was the "face of the project".  If, as he hoped, he would later be building roads in the region and would be dealing with the same people, he was concerned about what he would say when they said that he was "a liar and a cheat." 
  1. [138]
    Although Mr Baker did not immediately recall any discussions ensuing in respect of the email request on 17 May 2013, he noted, by reference to an email from the Appellant dated 23 May 2013 (Exhibit 17 document 47) that there had been discussions on 21 May 2013, and he recalled having discussions with Mr Wathen about paying money and access to the property sometime after May 2013.  However, Mr Baker stated that Mr Wathen instructed that Powerlink's representatives should discuss the matter with his legal representatives.  They did so, but there was no urgency to the negotiations because Mr Wathen allowed access to his property for investigation purposes without an agreement.  There was no real progress for some months after May in relation to negotiating an agreement. 
  1. [139]
    Mr Baker recalled a number of visits with Mr Wathen to look at structure locations, a realignment of the corridor (apparently in response to some gas structure activities) and accessibility. 
  1. [140]
    Mr Baker had discussions with Mr Wathen about an agreement for a substation on his property in the latter part of 2013 (after the Appellant went off sick on 6 June 2013).  An early access agreement to allow access for construction purposes (not investigation purposes) was negotiated and agreed in about April 2014.  Resumption followed soon after. 
  1. [141]
    Taylors: The Appellant referred to:
  1. (a)
    an email from the Taylors on 30 July 2012 withdrawing permission for access to complete a botanical inspection "until our concerns and compensation issues have been addressed," which prompted the Appellant to ask "What am I supposed to do with this?"  And Mr Briggs' response that "we need to nip this in the bud as CCO should be responding to such requests in meetings rather than giving an impression that it is something that we can do"  (Exhibit 17 document 5); and
  1. (b)
    an email from the Taylors' lawyer dated 10 December 2012 indicating the Taylors' desire to negotiate an access agreement for the purpose of Powerlink's preliminary investigations, and requesting an undertaking from Powerlink "to pay their reasonable legal fees associated with the negotiation of the proposed access agreement.  We expect you will require an estimate of those fees in order to further consider this request however we will not be in a position to make an accurate estimate until we see the terms of any access agreement you are prepared to propose.  At that stage, we will provide an estimate of our fees for your consideration"  (Exhibit 17 document 20).
  1. [142]
    According to the Appellant:
  1. (a)
    he was in the background in relation to the Taylors (hence his "rather snippy" query) and although he was kept informed of what was happening, the Appellant described himself as "impotent" and wanting "things to be done differently;" 
  1. (b)
    the request from the Taylors' lawyer was "as predicted" and he asked that it be followed up because it (and other such requests) "have the potential to delay us ad infinitum unless an overall position is quickly decided upon" (Exhibit 17 document 20); and
  1. (c)
    he understood that their fees were paid even though no property was acquired and there was only an alignment easement.
  1. [143]
    Mr Briggs confirmed that there was no formal agreement with the Taylors as at            10 December 2012 when they requested payment of reasonable legal fees associated with the negotiation of the proposed access agreement.  In his email dated                           2 January 2013 (Exhibit 17 document 21), Mr Briggs referred to the possible issue of a s 36 notice and recorded that the formal notice had not yet been sent.  By then Powerlink believed that a negotiated access agreement was unlikely.  At some stage, Powerlink issued the Taylors with a s 36 notice. 
  1. [144]
    Hairs:  The Appellant referred to an email dated 19 November 2012 from Mr McBride to the lawyer acting for Mr and Mrs Hair who apparently were willing to negotiate terms of access to their land.  Mr McBride wrote that Powerlink was not against that course of action, but asked the lawyer to note that:

"any negotiated outcome will not be on the basis of compensatory payment or a definitive statement about a future power line alignment.  Simply put it is very early days in the corridor investigation process."  (Exhibit 17 document 10)

  1. [145]
    The Appellant did not know whether Mr Hair was reimbursed for his legal costs, but had not heard that he had been paid
  1. [146]
    Mr Briggs gave evidence that Powerlink was having "enormous trouble communicating with" the Hair family and trying to access their property.  According to Mr Briggs, the Hairs were not communicating with Powerlink (at least not in a way that allowed the project to move forward).  Powerlink identified that access to their property was required to carry out field investigations to verify the likely impact of the project.  Consequently steps were taken to issue a s 36 notice.  Their situation was different from the Ladbrooks, including because the Ladbrooks were in discussions with Powerlink.  By contrast, Powerlink required access to the Hairs' property and their communications were not allowing the project to move forward.
  1. [147]
    Golden and Baker:  The Appellant also referred to two other properties (owned by Richard Golden and Lawrie Baker) where the owners had requested that Powerlink pay their legal costs but the Appellant had declined to pay them.  In the case of             Mr Baker, a s 36 notice was issued.  At a meeting with Mr Miller, Mr Baker and         Mr Briggs on 3 June 2013, the Appellant asked again what was happening in relation to the payment of legal fees for Mr Golden and Mr Baker.  Powerlink had not previously paid legal fees. However, as it had paid the legal fees of the Taylors and Ladbrooks, the Appellant asked why Mr Baker and Mr Golden should be treated differently.  Powerlink had received:
  1. (a)
    a request dated 6 July 2012 from solicitors acting for Mr Baker requesting confirmation that Powerlink would be responsible for his legal fees during the negotiation period, the exchange of correspondence and perusing and advising on all documentation received (Exhibit 17 document 49); and
  1. (b)
    invoices from lawyers acting for Richard and Helen Golden in respect of legal fees, evaluation and accounting fees by letter dated 8 January 2013 (Exhibit 17 document 48).

As an outcome of that meeting, Mr Miller gave an undertaking to pay the accounts and the Appellant forwarded the invoices to Mr Miller.  The Appellant did not receive a reply from Mr Miller before he left work three days later.

  1. [148]
    Mr Golden gave evidence about some "rather, probably abrupt" discussions with the Appellant concerning invoices for legal expenses because Mr Golden saw no reason why he should be incurring substantial legal costs for which he could not gain reimbursement.  He told the Appellant, as the Project Manager, that he expected his costs to be reimbursed.  The Appellant told him, correctly, that payment was not possible at that time but it would be possible at a much later stage (i.e., at the time of gazettal).  Mr Golden "probably rather rudely made the point" that he did not "give a damn" and that he intended to ensure that Powerlink paid these bills.  It seems that his irritation was informed by the experience of other friends, family and neighbours who incurred substantial costs in relation to an EIS on the preparation for another project. Because that project did not go ahead (and gazettal did not occur) they were left to pay their own professional costs.  Thus he was aware that it was possible that none of his costs would be paid so he was "already primed to be doing my very best to ensure ideally that they would be paid along the way, but at least to get sufficient pressure applied that they would be paid."  He recalled an invoice that he wrote and submitted personally (for amounts owing to Creevey Russell) being paid on 28 June 2013.  Apparently he told Powerlink that if he wasn't paid by the end of that week he would set about physically preventing access to his property.  It was "a bald threat" and, for "whatever reason," his invoice was paid.  He was not aware whether invoices prepared by his lawyers, Shannon Donaldson, were paid. 
  1. [149]
    In cross-examination, Mr Golden agreed that he understood that compensation is payable to landholders when land resumption goes through.  Legal fees are paid at that stage, although he did not know "how much or when."  The account he rendered was in respect of work that he had instructed his solicitors to do in respect of the EIS.  The research conducted by his solicitors as to Powerlink's standard practice in dealing with landholders showed that "basically, the information that Grant had given us was factual" and was "absolutely correct and normal procedure."  That was what had made Mr Golden and his neighbours decide that they would "go quite outside normal legal advice and set about, I suppose, community outrage and uproar, and see whether or not that might get us some of the things that we were determined to get it."  Mr Golden said that although they were "prepared to make a really major fuss" about the southern provisional alignment, they were aware (from what the Appellant had told them) that the input they were seeking to gain into that type of project decision was "illegitimate" or "really not proper."  As his evidence demonstrates, they had some success. 
  1. [150]
    The Appellant also referred to an email from Mr Briggs to him dated                                   28 November 2012 in relation to Mr Golden's refusal to grant permission to Powerlink to visit any parts of his property not directly on the current draft alignment.   Mr Briggs wrote:

"I believe that we need to respond to this independently of the weed issues raised by Golden.  If Golden believes that he can tell us what to do and where we can go or not within the study corridor may create a precedent which could be used by other landholders."  (Exhibit 17 document 16)

  1. [151]
    The Appellant's concern:  In his oral evidence, the Appellant described the situation in the following terms:

"So we have a statutory process not followed, we are likely to be challenged, the project is likely to fail, my standing in the group goes down because the project in that circumstance would fail.  I'm not meeting my KPI's[22] in my performance agreement which include that I'll bring budgets in on time and on budget.  The rest of Queensland is getting [indistinct] in terms of the wasted money, and I'm responsible. …  It's my project, you see."  (T1: 55-56)

  1. [152]
    In the course of his cross-examination, the Appellant:
  1. (a)
    suggested that by 7 November 2012 he was the only one who was "sweating about" the timing and landholders' access difficulties of the project; 
  1. (b)
    recalled that he had reiterated that if Powerlink wanted to proceed in that way in relation to the Ladbrooks, which he had spoken against, they had set a precedent and had "stirred up trouble for the future" and would need to do the same for Mr Wathen, who had "bigger impacts" on his property (even without the separate gas plant) than those experienced by the Ladbrooks,  "otherwise my name is mud;"   
  1. (c)
    said he had not understood that his managers at Powerlink told him that they would be treating some people differently (by paying some of the legal fees and entering into agreements) where they had multiple impacts on their property because of substations (as compared with people who only had easements).
  1. [153]
    The Appellant contended that he was attempting to point out that others with whom he worked were cutting corners without success.  In his words, "I'm fighting - I'm making myself unpopular with managers when it's them who … wanted to cut these corners."  By "them" he meant managers as a group up to Mr Miller and possibly        Ms Gray.  That is, "everyone - anyone above me I suppose is them who seem to want to do these things."  (T1: 63)  By his account, he was "correcting them" even though they had told him what the policy is.  "I apply the … policy and then I'm making myself unpopular for doing so." 
  1. [154]
    That said, he acknowledged that there were "a few examples" of people such as           Mr Briggs supporting his position (e.g. in his email message dated 6 February 2013).  However, he suggested that they did not always go in to bat when other people such as Mr Owen were going along with giving people a prior look at the EIS.  Rather, when one of these issues arises it was "just me [i.e., the Appellant] speaking."  (T1: 63-64)  Thus, as he put it:

"Peter was silent and Andy was active.  They're at the same level.  And speaking of being silent, if you go back to the email where I said, 'Am I going crazy?'  There's a classic example there.  I - I nailed them down.  I - I called a meeting.  I did it all by the book.  I called a meeting, I got them around the table, we went around the table, everybody said it was a bad idea.  And yet it went on and the agreement went on with these maps and everybody stayed silent."  (T1: 64)

  1. [155]
    Management's approach to negotiating access and discretionary payments:              Mr Briggs and Mr Miller gave most of the evidence about the approach taken by Powerlink in relation to the matter that the Appellant identified as causing him concern and ultimately his injury. 
  1. [156]
    According to Mr Briggs, Powerlink experienced difficulty obtaining access to land held by the Ladbrook family, the Hair family, and the Taylor family as well as some other landholders.[23] Some landholders formed a group and had one representative.     Mr Briggs gave evidence that, although every landholder is important, for this project Powerlink decided to treat landholders differently based on the levels of impact of the project on their properties.               
  1. [157]
    Ladbrooks:  Mr Briggs described the Ladbrooks' property as "quite different" from other landholders on the project.  It was "quite important" for the project from a strategic development point of view because it was earmarked for the hub substation, which could be described as like a "multi-board power point" which allowed all the other power lines to connect into it.  It allowed the connection of other lines to the rest of the network (with different easements that were 60 metres or 90 metres wide) and there was a high level of potential impact on their property.  There were concerns about that particular component of the project not moving forward.  Other landholders, such as the Taylors, only had transmission lines.  Although the Wathen family also had a substation site and significantly longer transmission lines, the Ladbrooks' property was different from a strategic point of view. 
  1. [158]
    Mr Briggs stated that Powerlink usually acquires the land for a substation (and any access route to the nearest road reserve) so that land is removed from the landholder's property.  There is more work associated with a substation.  The land becomes a sterile area from an agricultural point of view.  Materials are brought onto the site, and people can be there for 12 to 15 months full-time through the construction phase.  By contrast, the landholder can continue to use easement land across which transmission lines are carried. 
  1. [159]
    Mr Miller also described the Yuleba North substation on the Ladbrook's property as "very important in that it was a central hub and it really was critical for all legs of the supply chain."  There were two sets of customers involved in the APLNG and GLNG projects with a total of six substations.  Each substation was located where the customer would be compressing and pumping gas into a pipeline to Gladstone.  All six substations required the central substation.  A high-capacity line was to run from the existing grid to that substation where it stepped down and radiated out to six substations.[24]  A single high-capacity transmission line reduced the economic, social and environmental impact and created the "appropriate balance."  The central substation was more critical than in other cases where there is a customer substation only at the end of the line. 
  1. [160]
    The Ladbrook family were keen to see what financial and other benefits they could obtain from Powerlink through negotiations.
  1. [161]
    Mr Miller was involved in the decision-making process that led to the licence agreement dated 28 November 2012 with the Ladbrooks, but was more involved in the second stage extension of that agreement.  Mr Miller said that the agreement was not unusual.  He referred to the intense amount of work on one property that is involved in building a substation.  Contractors are arranged but have to await ministerial approval before construction can commence.  Powerlink cannot possess a site or build until it has that approval.  However, it needs resources in place to be ready and reduce the impact of delay.  Sometimes early geotech work can be done that will inform design work and reduce subsequent delay.  Although much work cannot be done until Powerlink has possession of the site, Powerlink will negotiate with a landholder to see what can be done in advance of obtaining possession.  In this case, given that all six substations were depending on the central substation being ready, any delay there would delay everything. 
  1. [162]
    By comparison, some access agreements were negotiated in relation to transmission lines.  But, because those lines cross numerous properties such agreements do not provide the same advantage and tend to happen only in unusual cases. 
  1. [163]
    Mr Briggs gave evidence that he was not aware of any other access agreements like the agreement reached with the Ladbrooks, where Powerlink made a financial payment to obtain access.  He described the negotiations in relation to access to the Ladbrooks' property as "highly unusual" because so many people were involved, including the Appellant, Mr Owen, Mr Baker, Mr Miller and Ms York.  He suggested that the agreement was probably made due to the strategic nature of their property in relation to the whole project. 
  1. [164]
    Mr Briggs was aware that the Appellant was not overly supportive of it or disagreed with it.  He also was aware of the Appellant's concerns about a map being included in the agreement, and he shared the Appellant's concerns about showing alignments on plans to landholders before Powerlink had gained access to their properties (see Exhibit 17 document 14).
  1. [165]
    Mr Briggs explained the concern that the agreement with the Ladbrooks might create a precedent.  Having paid one landholder a significant sum of money, if that landholder communicates openly with their neighbours and the rest of the community about the agreement there is a high chance that other landholders will request similar agreements.  His concern, from a project delivery point of view, was that once Powerlink started negotiating until it reached some commercial agreement with individuals, the timeframes would "go out the window."
  1. [166]
    Mr Miller also acknowledged the potential for issues with other land owners in response to the agreement reached with the Ladbrooks.  He stated that, although an early access agreement was not unusual, it was something that Powerlink did not want to do as it might set expectations for other landowners.  Powerlink's first approach is not to enter into early access agreements with all landowners.  That is "not the way things operate," and is usually not necessary because landowners will give access.  Powerlink was always "fairly careful to understand the flow-on impacts of any commercial decision that overlaid" its statutory rights, and considered how it might manage the situation with other land owners.  Powerlink considered that there needed to be a clear case of why it entered such an agreement e.g., for a technical or commercial reason.  If it is critical, useful and adds value to the process, an agreement will be considered.  In this case, the agreement was about a central substation and timeliness was very important.  If other landowners asked for agreements, Powerlink could say they did not do that normally and was only entering this agreement because of the special circumstances. 
  1. [167]
    Although Mr Miller could not recall a direct discussion with the Appellant about the distinguishing features of the Ladbrook agreement, or a conversation in which the Appellant asked him about the precedent Powerlink was setting, he said there was discussion within the team about how to talk with other landowners who asked why Powerlink was doing this.  The team included the Appellant. 
  1. [168]
    In relation to the map attached to the early access agreement (Exhibit 9), Mr Miller said there would always be a map in an agreement which would show the limitations of the area over which Powerlink was entitled to have access and work.  Later versions of the agreement confined activities to more specific, narrow areas.  
  1. [169]
    When he was referred to the email correspondence of 29 November 2012, Mr Miller agreed that the agreement was an important milestone in the project.  In his words, "it was seen as a way that will move the project forward from a stalemate to getting some action."  The stalemate had occurred because of problems with the Ladbrooks.  Had it been necessary to move the central substation, there would have been more environmental assessment and consultation work in relation to the new site as well as the movement of lines radiating out of the substation.  As indicated in his email that would be expensive (see Exhibit 17 document 17).
  1. [170]
    As noted earlier, Mr Miller described the briefing notes of 10 May 2013 (Exhibit 17 document 44) as being about how to defer from the issues as politely as possible, but he acknowledged the reality that landholders will hear from other landholders what happened. 
  1. [171]
    Mr Baker was aware that an agreement was reached with the Ladbrooks, but he had no involvement in its negotiation.  He had "very limited" involvement in the decision-making about entering that agreement, but referred to discussions in various forums within Powerlink about agreements with landholders, in particular:
  1. (a)
    the differentiation between those with potential substation sites (where title would be acquired) and those with easements only (where there was no change of ownership but Powerlink required limited rights in relation to strips of land); and
  1. (b)
    perceptions in the community about how Powerlink was handling those matters (e.g. by pointing out to anyone who asked why certain agreements were in place with some landholders and not others). 
  1. [172]
    Appellant's submission:  As noted earlier, the Appellant contends that the statutory process was not followed, Powerlink's policies and procedures were not followed, there was a waste of public moneys, he would not meet his KPIs, and his standing would diminish because his project would fail.  His written submission includes contentions that:
  1. (a)
    he was required by his job to be "part of some pretty dodgy behaviour by Powerlink" which was done due to contractual pressures.  The effect of this was that there were winners and losers among the landholders in the project area and "stakeholders elsewhere in Queensland;"
  1. (b)
    Powerlink kept on with its "dodgy behaviour" regardless of the Appellant's efforts to solve the problems.
  1. [173]
    Respondent's submission:  The Respondent submits, in summary, that:
  1. (a)
    there is no evidence that Powerlink was not able to afford the cost of the negotiated access agreement ultimately entered into with the Ladbrooks, or with any other landholder who would be so entitled;
  1. (b)
    the agreement with the Ladbrooks was entered into because their property was earmarked for the hub substation, was subject to a greater level of impact than other properties, and was quite important from a strategic asset development point of view;
  1. (c)
    the reason why the other landholders were not offered the same consideration is well understood by the Appellant and even explained in his evidence;
  1. (d)
    Mr Briggs gave evidence that any delays or additional expenses were being met within the terms of the contract;
  1. (e)
    it was not "favours being done" but a legitimately entered into business arrangement;
  1. (f)
    the Appellant ultimately acknowledged that he was not against getting agreement, but thought it was "dumb … for reasons of precedent" and contended that the same payments and advantages be given to other landholders;
  1. (g)
    the Appellant was able to acknowledge to landholders that an agreement existed, and the "Key messages and frequently asked questions" document sent by email of 10 May 2013 (Exhibit 17 document 44) provided directions about referring enquiries about that agreement or other things that might be included in compensation to Mr Baker and Mr Naish, thus enabling questions to be answered uniformly by the nominated representatives so that there would be little room for anyone to misinterpret Powerlink's position;
  1. (h)
    there is no evidence to demonstrate that the way Powerlink responded to, and dealt with, the concerns of certain landholders was improper;
  1. (i)
    the only evidence given by the Appellant of additional length to the power lines is of an extra 1.5 kilometres because of the slight alteration to the alignment on the Ladbrook property, which does not constitute evidence of excessively long routes from one place to another;
  1. (j)
    the Appellant's claim that the taxpayer would bear the cost of any "wastage" is incorrect as the work being undertaken by Powerlink was as an unregulated commercial contract and any additional expenses were being met within the terms of the contract.
  1. [174]
    Consideration and conclusion:  Having regard to the evidence set out in some detail above, I find that the negotiations with affected landholders were conducted in the context of a non-regulated project with unusual features, including interactions between the gas companies and landholders with whom Powerlink was dealing.  Powerlink had to respond to some difficult circumstances in this unfamiliar negotiating environment in order to meet its contractual obligations to the companies who were paying for the work.  In particular, I find that Powerlink had underestimated the amount of time it would take to secure necessary access arrangements for the EIS purposes and, as a consequence, had to develop and then modify management structures and practices and negotiation strategies to ensure that the project proceeded as promptly as practicable. 
  1. [175]
    It is clear from the Appellant's oral evidence that he understood that the period allowed for the project was significantly shorter than that usually taken for a standard regulated project, and there was provision for liquidated damages.  Consequently, there were unusual risks and uncertainties for Powerlink.
  1. [176]
    Although the arrangements negotiated with some landholders were different from the practices usually followed by Powerlink in relation to its regulated projects, and a payment or payments might have exceeded that which Powerlink would otherwise be obliged to negotiate under the Acquisition of Land Act:
  1. (a)
    those arrangements, especially with the Ladbrooks, were defensible having regard to the particular circumstances of each property and the commercial aspect of the project; and
  1. (b)
    there is nothing in the evidence to suggest that the payments or other arrangements were illegal or in any way "dodgy."
  1. [177]
    The evidence about the unusual nature of the agreement with the Ladbrooks and the reasons for it is set out earlier.  It is clear that officers senior to the Appellant in Powerlink considered that the nature and scale of work to be undertaken on the Ladbrooks' property, and the strategic significance of the substation for the entire project, was sufficient to support such an agreement being made.  It also broke a stalemate between Powerlink and the landholders, and would allow the project to move ahead.  Those managers were aware of the potential for other landholders to seek their own agreements and related payments, and considered that Powerlink could resist making similar agreements on the basis that it did not normally do so and only entered into this agreement because of the special circumstances.  As Mr Miller's email of 28 November 2012 indicated, he considered that the amounts paid under the agreement with the Ladbrooks were relatively small when compared with the potential reworking costs of hundreds of thousands of dollars if a timely agreement could not be reached.
  1. [178]
    The Appellant expressed his concerns about what he considered to be the impropriety and likely precedent effect of special agreements with some landholders and not others.  However, as noted earlier, the Appellant agreed that:
  1. (a)
    it was not his decision whether somebody was paid, nor was it part of his role to approve payments to landholders;
  1. (b)
    by telling Mr Wathen to put his request about payment for access in a letter to Powerlink he was, in effect, telling Mr Wathen that he was not responsible for making the decision.
  1. [179]
    I am not satisfied that Powerlink managers as a group (or individually) refused to allow the Appellant to extend concessions they made to certain landholders to all other landholders affected by the same project.  Rather, the evidence demonstrates that:
  1. (a)
    as a result of management decisions about the operational aspects of the project, the Appellant had reduced responsibility for access arrangements and most of the liaison with landholders was conducted by others, including community contact officers;
  1. (b)
    the Appellant expressed his concerns to his managers and identified the risks he considered inherent in the departures from Powerlink's policies that he identified;
  1. (c)
    certain concessions were made on a case-by-case basis with some landholders, and decisions about those concessions were made by officers who were senior to the Appellant.
  1. [180]
    Although the Appellant criticised some lengthening of the powerline alignment to accommodate certain landholders, it should be recognised that the potential for variation was foreshadowed at the outset of the project.  It is clear from the evidence, including the Project Newsletter 1 of April 2012, that the route of power lines that the Minister would approve would be finalised having regard to a range of factors.  The alignment which, on balance, had the lowest overall impact would be preferred, and a variation to the alignment that would result in some additional cost would be a trade-off for a better environmental or social outcome.
  1. [181]
    Consistently with the Appellant's statement of stressors, my findings and that conclusion relate to the circumstances applicable in the period between November 2012 and the Appellant's departure from his workplace on 6 June 2013 and the lodgement of his workers' compensation claim on 7 June 2013.
  1. [182]
    I note that some witnesses referred to the "learning curve" for, and lessons learned by, Powerlink as a result of the challenges it faced in completing the project.
  1. [183]
    Ms Azzopardi gave evidence that Powerlink had learnt "quite a lot" from the experience of working with landholders in Surat and the expectations that had been set in that area from the gas companies.  Subsequently, Powerlink developed:
  1. (a)
    a land access protocol; and
  1. (b)
    a project participation and access allowance to help offset the disturbance that Powerlink causes landholders when it has access to their properties for the EIS investigations. 
  1. [184]
    Payment of the allowance is made in two stages:
  1. (a)
    a $500 allowance for the initial meeting to discuss a project outline, why Powerlink requires access, and any access terms and conditions;
  1. (b)
    a $1500 flat fee plus $300 per kilometre allowance based on the number of kilometres of easement Powerlink is investigating (which reflects the correlation between the length of the alignment and how long Powerlink might need to be on the property to do investigations).

Where there is to be a substation, a sum between $3000 and $10,000 is paid for the impact of that substation. 

  1. [185]
    The land access protocol and the project participation and access allowance were approved by the Powerlink board in May 2014, and the allowance was to be paid retrospectively to landowners in Surat who had not already received payment for access during the period. 
  1. [186]
    The fact that Powerlink has changed its practice in light of its experience on this project does not assist the Appellant's case.  Just because Powerlink now appears to be willing to negotiate with landholders generally in ways which were considered unusual in relation to the project does not mean that those unusual agreements (particularly the agreement with the Ladbrooks) was in any way improper, unethical, illegal or, to use the Appellant's term, "dodgy."  Indeed, the fact that Powerlink has moved to a practice more consistent with such agreements indicates that the practice developed in relation to the project has been found to be an appropriate and practical way to assist Powerlink in the exercise of its statutory powers and functions.

Was the Appellant used as a "fall guy" in relation to the project?

  1. [187]
    In his WorkCover claim form dated 6 June 2013 (Exhibit 5), the Appellant described his injury as "anxiety" which happened from "dealing with failing project."  This element of his case proceeds on the basis that, as a result of various actions taken by Powerlink that departed from established policy, there was a risk to the project.  Powerlink tried to limit the damage.  The Appellant contends that Powerlink used him to maintain the line on concessions with some landholders whilst Powerlink had other arrangements with other landholders.  He believed that this was a serious violation of his professional standards as an engineer, and posed a serious risk to his reputation and future employment prospects.  Furthermore, if that practice was exposed, the Appellant would be associated with the issue and would have to deal with it.  The Appellant characterised himself as being used as a "fall guy" to contain the expense of the project and shield those making decisions.  He submits that, as a consequence, he suffered distress and medical issues. 
  1. [188]
    On separate occasions, the Appellant told Dr Naidoo about:
  1. (a)
    problems with the project and the blame for the project falling behind being placed on his shoulders (18 February 2013);
  1. (b)
    being used as a scapegoat for the failure of the project becoming more evident every day (30 April 2013); and
  1. (c)
    being "used as fall guy for project gone wrong" (6 June 2013).
  1. [189]
    The Respondent submits that, from the documentary evidence and the evidence of the Appellant's managers, there was no view at all that:
  1. (a)
    the project was failing; or
  1. (b)
    that the Appellant was responsible for any delays occurring in the project.

In support of that submission, the Respondent relies on evidence from four people in the chain of command above the Appellant who were well aware of what was occurring with the project namely, Mr Briggs, Mr Miller, Mr Baker and                           Ms Azzopardi.

  1. [190]
    Mr Briggs:  As noted earlier, Mr Briggs, the Appellant's direct supervisor, gave evidence that the project being constructed was not a normal type of project, but was a construction for a number of gas companies who were paying for the project. 
  1. [191]
    In his email message of 29 November 2012 to the Appellant, Mr Briggs wrote that certain decisions "are often outside the direct control of the project manager but needs to be accommodated through the delivery of the project"  (Exhibit 17 document 18).  Mr Briggs gave oral evidence that at no stage did he say to the Appellant is that it was his fault that there were delays to the project.  Because he was aware of the project, Mr Briggs knew that was not the case.  There are can be other reasons for delay outside the control of the Project Manager.  For example a landholder can frustrate Powerlink's ability to move the project forward, and there can be business decisions within Powerlink that cause delay.  It took some time to negotiate an access agreement with the Ladbrook family which might have created up to five months' delay in the project.  Mr Briggs understood that the business decision was probably made by         Ms York, the CEO, and so was outside the Project Manager's control.  The Project Manager was then responsible to regain approval from the sponsor for the project based on that delay. 
  1. [192]
    Mr Briggs gave evidence that the Key Performance Indicators ("KPIs") for the Appellant and other Project Managers were fairly standard and were based on project management, not necessarily whether the project was meeting its original timeframes.  The KPIs were the same for regulated and non-regulated projects, and whether the project was highly challenging or fairly straightforward. He was keen for all the Project Managers to have consistent KPIs so that each person was assessed consistently and there was not seen to be any favouritism or advantage to one Project Manager over another.  He said that at review meetings with the Appellant in respect of his KPIs and related matters he was careful not to place the blame for any delay in the project on the Appellant's shoulders.  At no time did he make comments to the effect that the Appellant was at fault for any failure of the project. 
  1. [193]
    It is relevant to note that the end of year review for the performance agreement for the Appellant (as at 17 July 2012) (Exhibit 10) stated, among other things, that:
  1. (a)
    projects were not tracking against the approved schedule, but this was due to a number of decisions made by management outside the project team (e.g. process to resolve land owner issues) and the Appellant was recorded as meeting expectations because the delays were caused by actions outside his control (see KPI 1.1);
  1. (b)
    the Appellant demonstrated "that he is ethical and has strong views in relation to everyone been [sic] treated equally (without favour)" (see KPI 9);
  1. (c)
    the Appellant had "struggled with accepting decisions of management in relation to the NW Surat projects.  It is evident that he has had to deal with personal conflicts which he has been able to resolve with those who have made the decisions.  Grant need to improve and be more accepting of management decisions."  (see KPI 7.1, 8.1)
  1. [194]
    Mr Miller:  Mr Miller did not agree that the project was a "failing project."  He described it as a project that Powerlink took on knowing that there were some challenges, particularly time challenges.  The reaction of some land owners was much stronger than anticipated, so it was a "difficult project" (although not the most difficult project with which he had been associated).  There were delays against the times that Powerlink had indicated to gas companies.  But that did not mean the project had failed.  He stated that the gas companies were aware that there were risks, and there were some contractual arrangements that allowed times to change for a range of circumstances.  Powerlink kept the gas companies informed of what was occurring and how it was moving forward.  The issues causing delay were public, and landowners were lobbying politicians and the companies.  Although there was disappointment that Powerlink could not meet the time frame, Mr Miller would not say it was a failure.  ALNG was keen to assist where it could, and at some locations Powerlink could build on the company's relationships with those landholders. 
  1. [195]
    Mr Miller said that as the Appellant was the Project Manager he would take some accountability for project delivery.  However, management, "right through to the CEO," was well aware of the difficulties with delays and matters outside of the Appellant's control.  The CEO, the chair of Powerlink, and the Minister were being lobbied by landowners.  Consequently, "there was a pretty high awareness of the intervention by landowners and the pushback by landowners, so there certainly wasn't the view that there was a project failure."  It was not a result of failures or things not being done.  Rather, Powerlink had to work hard and try "a few innovative things" to work its way through the difficulties. 
  1. [196]
    Mr Baker gave evidence including about his discussions about the Appellant's return to work in February 2013, indicated that he was content with the Appellant's work as a Project Manager and wanted to continue to work with him in a "happy, co-operative and productive working environment."
  1. [197]
    Ms Azzopardi gave evidence that, although there had been some delays on the project:
  1. (a)
    a range of issues was relevant to the delay;
  1. (b)
    she had not made a comment that the problems were caused by the Appellant or any one individual; and
  1. (c)
    there were no views at managerial level that the Appellant was responsible for the delays. 
  1. [198]
    The Respondent submits that there is no evidence whatsoever to support the claims that the Appellant made to Dr Naidoo.  Indeed, the Respondent submits that the Appellant's claims are fictitious and there can be no finding that this claimed stressor has in any way contributed to the development of his injury.
  1. [199]
    As I understand the Appellant's case, the Respondent misconceived his actual concern.  In his written submissions, the Appellant stated that his concern was not about being set up as the fall guy for the failing project, but as the fall guy for the unethical behaviour of Powerlink.  Consequently he gave no evidence to support the proposition that he was to be blamed for the failing project, but reiterated his concern from at least 29 November 2012 that his "name will be mud" and that they were "making a liar and a bastard" out of him which would affect his ability to live and work among "the losers from Powerlink's shonky behaviour." 
  1. [200]
    Consideration and conclusion: Given the way the case developed (including reliance on medical evidence considered in more detail later in these reasons), it is appropriate to deal with each party's approach to the "fall guy" issue. 
  1. [201]
    Having regard to:
  1. (a)
    the evidence summarised earlier in relation to the way in which certain negotiations were carried out, and agreements reached, with some landholders and not others;
  1. (b)
    the evidence about the assessment by management of the reasons for delay in the project; and
  1. (c)
    the absence of any evidence that management held the Appellant to blame for the delays,

I am not satisfied that the Appellant was dealing with a failing project or that he was used as a "fall guy" to contain the expense of the project and shield those making decisions. 

  1. [202]
    The possible implications of some of Powerlink's actions for the Appellant's reputation are considered next.

The effect on the Appellant's reputation of actions taken by management

  1. [203]
    As noted in the statement of stressors, and amplified in his oral evidence, one of the Appellant's concerns was that, in the eyes of the landholders, he was the one who had told them what the policy was and, as the Project Manager, he was the person to whom people spoke.  He was the "face of the project".  He was the "fall guy" for what he described as the unethical behaviour of Powerlink.  If, as he hoped, he would later be building roads in the region and dealing with the same people, he was concerned about what he would say when they said that he was "a liar and a cheat." 
  1. [204]
    The Appellant submits that he faced the very likely prospect, somewhere down the track, of being accosted in the street by one of the non-favoured group who had subsequently found out about what it had cost them to believe the Appellant.  Having no defence for being part of, or at least associated with, the project it was inevitable that there was going to be a conflict of ethics and distress for the Appellant.  He submits that should have been foreseen, particularly after his first period of leave in February 2013. 
  1. [205]
    That submission was foreshadowed when, in his opening address, the Appellant said:

"Now, there's a likelihood of Grant Roberts one day walking down a street in a town on the Western Downs and being pointed out as a liar and a cheat because of the work that he was required to do and he would have absolutely no basis to argue, and this was a very large source of stress for him, and this is particularly likely because … Grant Roberts has previously lived and worked in several towns in that area and … visits there from time to time and he maintains friendships in that area. … [H]e is originally from a remote area and identifies very strongly with bush people.  It may be that in the near future he will be working as an engineer, working on the building or roads in the same area and possibly dealing with the same people, and, again this is unique within his group in Powerlink.  So the requirement to perform the work that [is] likely to cause a confrontation comes from him being an employee in a particular position."  (T1: 13) 

  1. [206]
    Perhaps to modify that statement a little, the Appellant sought to dispel any impression that he had come directly from the bush to Powerlink and then was returning to the bush.  He gave evidence that for about half of his life since university he had lived in Brisbane, where his three children were born. 
  1. [207]
    However, in his written submission, the Appellant refers to his evidence that he was unique among the Network Property Group project managers in having come from the bush, and he communicated well with people from the country.  He contends that that was a vital part of his role, and Powerlink took advantage of it in relation to other projects in the region. 
  1. [208]
    The only direct evidence in relation to this stressor was given by Mr Golden, the person who held the permanent power of attorney for the owner of a property that was traversed by the study corridor for the Wandoan South to Yuleba North project.  He met the Appellant at Potters Flat in about early June 2012.  Other property owners who had area inside the study corridor were present at the meeting, including                Mr Wathen, and the landholders of Carisbrooke and Lucky Downs.  Mr Golden said that, by that stage, the landholders had already dealt with two different gas companies and the coal company since early 2009 and had become "somewhat cynical towards the standard communications handouts."  They knew what they wanted to know.  He described the Appellant as "just the project manager" but they saw his presence as a mark of respect towards the importance of them in the equation.  He was the first person from Powerlink with whom the landholders had contact.  The fact that the Appellant came alone "surprised us and impressed us" because at that stage they were "expecting to gear up for a fight." 
  1. [209]
    Mr Golden said that he had heard criticism of the Appellant personally.  The Appellant was described as someone who "doesn't mince words," which he found refreshing.  He continued:

"I realised that some people may have found that confronting, but I had always felt more comfortable with what I suppose I call the unvarnished facts because then I knew what I was dealing with and then I would be aware of what I may be able to do or needed to try to do.  …  I think criticism might be the wrong word.  But yes.  Definitely.  Abrupt, direct, didn't waste words, I suppose, was how it would have been said."  (T2: 66, see also 89)

  1. [210]
    Mr Golden agreed that the Appellant was completely open and honest, and described him as "Absolutely straight, without any … feeling of a need to wonder if there was more there than appeared."  The Appellant told Mr Golden what Powerlink's attitude was towards matters, and spoke "courteously" but with "no waffle."  Mr Golden said that he:

"found that probably the most encouraging thing about Grant's approach … was that regardless of the message he felt he had to bring, he was prepared to face to face - I do think, courageously too, because I can assure you we were not being nice. …  But, yes, courageously - courageously speak directly to the people who were feeling aggrieved."  (T2: 90-91) 

  1. [211]
    Mr Golden said that he had never changed his view about the Appellant and agreed that he was a man of integrity.  Mr Golden did not hold the Appellant responsible for any problems that occurred with this particular project.  In particular, he would "definitely not" have referred to the Appellant as a liar or a bastard.  Indeed he did not have a bad impression of the Appellant. 
  1. [212]
    By comparison, Mr Golden said that, when he was dealing with Mr Baker, he did not get a sense of confidence that what he was communicating was being taken on board and he did not find that the things he had raised were being dealt with to his satisfaction.  As a result, he minimised the amount of contact he had with Mr Baker through the relevant period.  Mr Golden later became aware that he had not always been getting the "latest information, because things seemed to be changing at such a rate in so many different ways, and we often found that a little bit difficult to keep up with." 
  1. [213]
    Mr Golden and his neighbours also felt it was "quite unacceptable" that they could not have a copy of the provisional alignment.   They "put a great deal of pressure on the project" through the Appellant as Project Manager to gain information and input at a time when they became aware that a proposed alignment was going to be very close to the residence of one of them.  They felt that the proposed alignment was moved from "a slightly unsuitable to a completely unsuitable location.  So we called loudly for a high level meeting on-site."  Mr Golden said that the neighbours were driven to "stick together to do everything that we could do to see that the alignment did not end up being the preferred alignment."  They were aware that this was not the approved process for input from landholders.  The Appellant had made it clear that the input they were seeking to have was "extraordinary and definitely not the proper process."  The Appellant had advised that the provisional northern alignment was too expensive because of the number of corners in the powerline.  Mr Golden observed that the Senior Project Manager, who attended the meeting with the Appellant, "appeared to have some bend in him," "bend" that the Appellant as the Project Manager "had not exhibited."  Rather, the Appellant "had been consistent right the way through."            Mr Golden argued that the matter needed to be "sorted out immediately" and "lo and behold, we got back to the northern alignment."  Although he could not comment as to who brought that result about, it made him feel more certain that "if we kept loud and valid criticism hitting the project hard enough there may be other things that we didn't like" that they might be able to get changed.  One of those was the matter of professional cost reimbursement in a timely manner. 
  1. [214]
    In cross-examination, Mr Golden indicated that he was aware that these projects were normally decided on a cost basis.  However, they wanted their use of the property to be taken into account, rather than the transmission line to go through the shortest route.  After the meeting attended by the Senior Project Manager a change occurred back to a "least loss alignment," although Mr Golden could not comment on what caused that to happen. 
  1. [215]
    The effect of this evidence, from a witness called by the Appellant, is in essence, that, far from being thought of as a liar and a bastard, the Appellant was (and presumably still is) considered someone who is direct, to the point, honest, consistent, a man of integrity and absolutely straight.  It appears that Mr Golden was well aware that the Appellant was conducting himself in accordance with Powerlink's approved process and that he told them the message that he had to bring.  He was not held responsible for problems with the project.
  1. [216]
    Appellant's submission:  The Appellant submits that:
  1. (a)
    he has not imagined the effects of Powerlink's actions on his ethical standards, his reputation and his employment prospects;
  1. (b)
    he has already had a taste of this in the "spray" that was directed primarily at him at the information day in Yuleba in April 2013 and in his first meeting with the Ladbrooks on 6 February 2013;
  1. (c)
    he has experienced the reality of this incidentally to his other interactions with landholders;
  1. (d)
    this stressor is not in relation to future interactions but is expressed in the present tense, i.e., being made a liar and a cheat. 
  1. [217]
    Respondent's submission:  The Respondent submits that there is no evidence supporting the Appellant's views.  He had a very good working relationship with        Mr Golden.  Not only did Mr Golden not form an adverse view of the Appellant, he maintained that the Appellant was a man of integrity.  Furthermore, the Appellant was able to suggest to Mr Wathen that he put in a claim for costs, and that conduct would have indicated to Mr Wathen that the Appellant was not a "liar" and a "bastard."  The Appellant did not seek to lead any evidence that he had been treated unfavourably by anyone other than the Ladbrooks.  He did not have any affinity or kinship with the Ladbrooks.  The Appellant's employment with PowerLink did not extend to the construction stage, and he would not have dealings with landholders when that occurred.  Accordingly, there is no connection with the Appellant's employment and contact with those people in the future.  On that basis, the Respondent submits that there is no basis to find that the Appellant's employment was a significant contributing factor to the development of his injury. 
  1. [218]
    Consideration and conclusion:  It is difficult to accept the full force of the Appellant's submission in the absence of oral or documentary evidence to that effect, e.g., as to his employment prospects and the way other landholders in the district regard him.  The Appellant seeks to minimise the positive import of Mr Golden's evidence, and suggests that Mr Golden's opinion of him might have been different had he not become aware of the Appellant's efforts to see the project being done correctly and the effect experienced by the Appellant.  Such speculation cannot negate the clear evidence given by Mr Golden.
  1. [219]
    I am satisfied that this stressor has not been proved.  There is no evidence before the Commission in support of it.  Such evidence as there is about how the Appellant is perceived in the wider community is completely at odds with this stressor.  Indeed, as noted earlier, it would appear that he is seen as a man of integrity who carried out his duties as Project Manager in a way that was consistent with that role, and with honesty, courage, directness and courtesy.

Powerlink's refusal to accept the Appellant's offer to leave the project and aspects of his return to work plan

  1. [220]
    According to the Appellant, he asked to leave the project on at least six occasions and that request was denied on the ground that the project would suffer.  Or, as he put it in his written submissions, on six occasions he gave Powerlink the option of removing him from the project if they wanted.  Having not been redeployed away from the project, he criticised the return to work plan sent to him on 1 March 2013.
  1. [221]
    The significance of this assertion is that, if proved, it might be relevant to whether his injury was work related and whether the reasonable management exception in s 32(5) of the Act applies.
  1. [222]
    Before considering the return to work plan, it is necessary to consider the circumstances of each occasion when, the Appellant maintains, he asked or offered to leave the project.
  1. [223]
    Offers to leave the project were refused:  According to the Appellant, the "shortcuts" and "peculiar arrangements" would not have caused him injury if he had taken the view that it was Powerlink's problem and he had washed his hands of his involvement in that behaviour.  (He described this possible approach as "it's your funeral.")  However he contends that Powerlink escalated the problem when it did not allow him to leave the project.
  1. [224]
    At the hearing, the Appellant identified six occasions on which he says he offered to leave the project and was refused. They were on 27 August 2012, two dates in October 2012, 12 November 2012, 7 December 2012, and 25 February 2013.  At least three of those precede the period nominated in his list of stressors.  However the evidence in respect of each occasion is summarised below.
  1. [225]
    Offer 1:  As noted earlier, there was an exchange of emails between the Ladbrooks and Mr Owen in August 2012 concerning, among other things, a letter from the Appellant to the Ladbrooks about a permission to enter form.  Mr Owen had apologised for that letter orally, and the Ladbrooks sought a written apology.  The email correspondence also concerned the study alignment for the substation and powerline on their property.  The Appellant was copied into some of the correspondence, and other emails were forwarded to him.
  1. [226]
    In his reply to Mr Owen on 27 August 2012, the Appellant wrote:

"I am concerned that the reference for the alignments and the negotiations seems to be shifting from me to you by degrees.  This will not end well, for reasons of confusion of responsibility and lines of communication.

If you are formally taking over the project, just say so and I will transfer files to you.

Obviously I am prepared to listen to your input.  But releasing 'into the wild' an alignment with multiple extra bend points and a substantial extra length without discussion is a bit more than input."  (Exhibit 17 document 7)

  1. [227]
    In his oral evidence, the Appellant described his email message of 27 August 2012 as offer number 1.
  1. [228]
    Offer 2:  According to the Appellant, in October 2012 he spoke to Ms Gray after a major projects meeting and advised that the project was five months behind schedule after five months. Access has been arranged to few properties.  He could not explain the delay because, as he put it, he was in the background and was not in the field to fix things.  The Appellant gave evidence that he did not want to look like a dummy and asked why, if Mr Owen was so keen, the project should not be given to him. He recalled that Ms Gray did not respond other than saying that things would get better.
  1. [229]
    Offer 3:  According to the Appellant, he made another offer in the heat of the moment some time in October 2012. There is no record of this occasion, but the Appellant recalled that he met with Mr Briggs and Mr Owen in a sound proof room to the side of the offices. The Appellant told Mr Owen "I've taken all the direction from you that I am going to take.  Either you take over the project or you butt out."  According to the Appellant, he received an undertaking from Mr Owen to "butt out." 
  1. [230]
    Offer 4:  On 12 November 2012, the Appellant organised a meeting to discuss the "early access/license to occupy that Andy [Owen] is negotiating with the Ladbrooks (site of the Yuleba N substation on CP.02155)."  The meeting request message from the Appellant continued:

"There are a couple of issues to do with how this is unfolding to that are really concerning me.  I would value input from you all.

Andy, please do not make any further undertakings or information with the Ladbrooks for now."  (Exhibit 17 document 9)

According to the Appellant, the meeting with him was attended by Ms Gray,                Mr Baker,[25] Mr Owen and Mr Briggs.  By his account, the Appellant said "Back me or sack me" and Ms Gray responded "Well, hopefully it won't come to that" and moved on without addressing the issue.  Ms Gray did not give evidence.

  1. [231]
    The Appellant recalled that his "back me or sack me" matter was the first item of business for him at that meeting.  He said that Ms Gray's response was "very brief" and they "skipped" or "skimmed" across it.  He felt uncomfortable that she addressed the matter in that way.  He did not go back to it.  At the end of his evidence, the Appellant clarified that he was not talking about being sacked from his job at Powerlink.  It was all about the project, i.e. "back me or sack me" in relation to the project. Ms Gray did not give evidence, and it was not clear whether that was how she understood the Appellant's statement.
  1. [232]
    Offer 5:  The Appellant gave evidence that none of this had worked and Mr Owen had not "butted out". There was an exchange of emails between the Appellant and             Mr Owen in which the Appellant expressed his preference that Mr Owen "go through me when making arrangements" about access and, in response to Mr Owen's reply, stated that if Mr Owen wanted to run the project then he should "run the project, as the Project Manager.  Otherwise, allow me to run it."  The Appellant asked Mr Owen to "do me the courtesy of going thru me as the Project Manager" and stated that, although advice was welcome, it was "not acceptable to me that you come in from outside and make decisions leaving me with all the responsibility but not the control"  (Exhibit 17 document 19).  Mr Briggs sent an email requesting a meeting with the Appellant and Mr Owen as "we need to sort this one out."  They met in a glass bowl room on 7 December 2012 and the Appellant repeated what is stated in his email.  According to the Appellant, Mr Owen agreed and gave "an undertaking to butt out." 
  1. [233]
    Offer 6:  It seems, however, that matters were not resolved to the Appellant's satisfaction, and that around that time other challenging aspects of the project were becoming more apparent to senior management of Powerlink.  Evidence of the increasing costs of EIA work associated with the project, and the reason for that increase and associated delay, is found in an email exchange between the CEO of Powerlink (Ms York) and Tony Webster between 4 and 17 January 2013 and information provided to Mr Webster and others by the Appellant in a detailed email dated 30 January 2013 (Exhibit 17 document 25).  In his email, the Appellant stated that, when the drafts of the corridor selection report were received, Network Property at a senior level (apparently referring to Ms Gray) became concerned about risk management.  It appeared that a network originally estimated at 150 kilometres was about to become 200 kilometres long.  A decision was made that the project would be broken up into several parts so that delays or cancellations of one part could not threaten the validity of the EISs for the other parts, and early progress could be made on some sections while others were delayed.  Apparently this meant that the number of EISs rose from one or two to eight.
  1. [234]
    The Appellant gave oral evidence that he attempted to work within the system to progress on EISs by "managing up" and approaching senior officers. 
  1. [235]
    On 14 February 2013, the Appellant had "walked out the door" and took a week of unscheduled annual leave as he did not come to work in that period.  Evidence about the Appellant's departure was given by Ms Brutton, who was the Recruitment Adviser and People and Culture Advisor with Powerlink.  On the afternoon of 14 February 2013, the Appellant was looking for someone in HR.  He let Ms Brutton know that he was quite upset and unhappy with the way he had been treated and the way things were going with his project.  He said that he did not want to work in that team any longer.  He told her that he was leaving and wanted to go home.  They discussed the idea of him taking some time off work so that he could unwind and destress.  According to Ms Brutton, the Appellant said that his studies for an Advanced Diploma in Project Management were a cause of his stress and indicated that he might like to take time to do some of those studies.  The Appellant left work on 14 February 2013, saw Dr Naidoo on 18 February 2013, and returned to work on 25 February 2013. 
  1. [236]
    There was an exchange of emails between the Appellant and Mr Baker on 21 and        22 February 2013 (Exhibit 17 document 34).  The Appellant stated, among other things that he "cannot function in the atmosphere at present."  He continued:

"I am in an impossible situation where my reputation, my standing within PQ, and my self-respect is being sacrificed so that others avoid difficult decisions.  I am faced with a project that is several months late, for reasons that I am not responsible for and in fact have made myself unpopular by pointing out what was being done wrong and pointing out how to fix them.  I have even gone out and shown how to fix them …"

  1. [237]
    The Appellant expressed some criticism of Mr Owen but said that he was not "the biggest problem."  The Appellant stated:

"I am being continually undermined in my efforts to bring the project back on track, by people who put me out there to take the pressure and fold in every instance lest they have pressure applied to them.  They are making a liar and a bastard out of me when they fold so predictably AFTER insisting that all PQ processes must be followed.  How do I face the people who listened to me and were reasonable, when by not listening to me and not being reasonable they could have got endless concessions?  Being the good news fairy is all very fun but when it is at someone else's expense something is rotten.

If I did the sensible thing and agreed to everything like they do, I would be crucified.  When they fold, they are 'doing the corporate thing' and 'making a business decision'.  That is crap.  They are spending Other People's Money to make their working day go easier.

It came to a head when I read my KPIs in my Performance Agreement.  There is no way on Earth that I can meet those KPIs because the processes, standards, and policies they are built on get thrown out the instant pressure is applied."[26]

  1. [238]
    Mr Baker replied that, whilst he could not change what had happened in the past (some of which he was not aware of), he was "keen to resolve your concerns into the future."  He asked to see the Appellant when he returned to work so they could discuss his concerns and "work out an agreed way forward."
  1. [239]
    On 25 February 2013, Mr Baker and Ms Brutton met the Appellant for coffee. He recalled a calm discussion.  By his account, he was not venting, but said at the beginning that he wanted to be redeployed within Powerlink (by which he meant outside of the Network Property Group).  He was told that was not going to happen and there was "stony silence."  However, later in the meeting there was a discussion about the options for his continued employment with Powerlink.  They made what the Appellant considered to be a half-hearted offer to put him in Network Property but not on the project.  However, Mr Baker made it clear to the Appellant that it would be a major problem to lose him from the project.  Mr Baker acknowledged that it was a difficult project and that the Appellant had made good progress and that the Appellant had obtained cooperation from landholders when no one else had done so.  At the end of the meeting, the Appellant agreed reluctantly to stay on the project, and Mr Baker expressed relief at that.
  1. [240]
    According to the Appellant, he was feeling guilty for having "blown up and gone AWOL for five days" and he "just wanted to get back to work."  So he "felt under a lot of pressure."  He was "in a bad way" and had seen Dr Naidoo on 18 February 2013.  Dr Naidoo's progress notes of consultations (referred to later in these reasons for decision) recorded that the Appellant was "very stressed" at the time of that consultation.  In those circumstances, the Appellant submitted, it should never have been put to him that he should go back on the project for the convenience of Mr Baker and Powerlink.  I note, however, that Dr Naidoo's consultation notes for                            25 February 2013 record that the Appellant had had "time to think through processes clearer feel ready to tackle problems at work." (Exhibit 12)
  1. [241]
    The Appellant submits that he did not resign from the project because he had a real and reasonable fear that he would suffer for making things difficult for Powerlink by resigning.  He also submits that at that stage he wanted to keep working positively and professionally to solve problems and complete the project.
  1. [242]
    They discussed him returning to work.  The following week he was in the glass box, a semi-soundproof meeting room adjacent to HR and away from Network Property, where he was able to focus on his work, including his Project Management studies, and avoid having to answer questions about where he had been.  The Appellant agreed that this relocation was arranged to assist him. 
  1. [243]
    Mr Baker's evidence: Mr Baker recalled the meeting over coffee on 25 February 2013 with the Appellant and Ms Brutton.  They discussed some of the matters of concern raised by the Appellant in his email of 22 February 2013 (i.e., the Appellant's stressors) and, according to Mr Baker, the return to work plan was first discussed.  According to Mr Baker, the primary objective was to get the Appellant back to work in a way that was sustainable for him and Powerlink.
  1. [244]
    Mr Baker recalled one further meeting with the Appellant on 26 February 2013 at which they discussed whether the Appellant would return to the project or some other part of Powerlink.  He recalled the Appellant saying he was not a quitter, he had not finished the job he had taken on, he was proud of his work ethic and wanted to return to the project and see it out.  At the hearing, Mr Baker rejected the idea that the Appellant said that he did not want to come back to the project and was basically forced to do so. 
  1. [245]
    Ms Brutton's evidence: Ms Brutton took notes of the meeting between the Appellant, Mr Baker and herself on 25 February 2013 (Exhibit 15).  The notes included a statement that the Appellant felt calmer than he was a week previously.  They recorded, among other things:
  1. (a)
    the Appellant's concerns involving people higher in the management than      Mr Baker, up to the CEO, and decisions that would have been made at that level ("just giving in" when he had "stuck strong");
  1. (b)
    the Appellant's concerns about the perception of landholders about those decisions, and the impact those decisions were having on "reputation" (which Ms Brutton took to be a reference to the reputation of Powerlink, but she agreed in cross-examination the Appellant was talking about his reputation);
  1. (c)
    the Appellant felt he was not able to manage the project;
  1. (d)
    Mr Baker talking to the Appellant about a new structure and support mechanisms to be put in place, including having Mr Briggs coordinate the Surat projects with both the Appellant and Ms Bolton reporting directly to him;
  1. (e)
    that redeployment would not be easy;
  1. (f)
    the Appellant was happy as Project Manager until October/November 2012 when Mr Owen took over and micromanaged the project;
  1. (g)
    the Appellant confirmed that the new structure would go a long way to address the issue with Mr Owen, meet KPIs, provides support and structure, and improve communications (internal and external).
  1. [246]
    Ms Brutton said that this was the first time she had heard of the issues between the Appellant and the managers.  She confirmed that redeployment of the Appellant to another area of Powerlink was not going to be easy.  Her suggestion was to work with the managers to first look at how they could resolve the issues within the group whilst being cognisant of the employee's well-being.
  1. [247]
    The outcome of that meeting was that the Appellant spent time doing his Project Management studies.  He also had time to think about the information he had been given about the changes to be made.  They agreed to meet the following afternoon to hear from the Appellant whether, based on those changes, he was comfortable to continue the Surat project management role. 
  1. [248]
    Ms Brutton's notes of the meeting on 26 February 2013 (Exhibit 15), as explained by her, record that the Appellant had decided he wanted to go back to the Project Manager role and finish the work he had started in the Surat team.  He quite liked the change and that he would report to Mr Briggs and assist with the project.  They then discussed Mr Baker writing some recommendations in terms of confirming what the changes are and how they would continue to work with the Appellant on the situation and the issues he had raised.
  1. [249]
    Mr Briggs gave evidence that helps explain and put in context the evidence from the Appellant on this issue.  He recalled discussions with the Appellant who was "finding things quite frustrating in relation to the project."  He remembered the Appellant using a term to the effect that Powerlink should either let him finish the project (i.e., back him) or take it off him.  Mr Briggs gave evidence that at all times he had confidence in the Appellant delivering the project and that he worked with the Appellant to assist him to deliver the project (e.g. by dealing with matters raised internally such as the Appellant's issues with Mr Owen).   He agreed that it was not in his interests or the interests of Powerlink or the project to have the Appellant taken off the project. 
  1. [250]
    Mr Briggs gave evidence that Mr Owen had a different management style to                 Mr Briggs.  If Mr Owen was informed of the problem, he tended to take it and try to solve it independently of the Project Manager, something that the Appellant found quite challenging.  On at least two occasions, Mr Briggs convened meetings between the Appellant and Mr Owen to discuss how they could move forward in relation to delivering the project with these different management styles.  He recalled that before such meetings the Appellant was "quite frustrated, to say the least."  Mr Briggs understood that, at that stage, the Appellant was not being informed of what was happening in the field and that made it very challenging to make the right decisions for the project.   Mr Briggs said that he probably set some expectations from Mr Owen in relation to his interaction with the Appellant and the project.  He tried to set up some boundaries in relation to how Mr Owen would interact in relation to the project.  For example, if a proposed course of action was discussed with a landholder the Powerlink officer should discuss that option with the Project Manager and obtain his approval before negotiating on that basis with the landholder.  Mr Briggs made it quite clear to Mr Owen that he had to communicate with the Appellant on a regular basis, and that Mr Owen should leave problems with the Appellant rather than taking them on himself (even though Mr Owen was a level higher in the management structure than the Appellant).  Mr Briggs considered that if those boundaries were observed, the tension which was caused would probably have been resolved. 
  1. [251]
    After the meetings the Appellant expressed the hope that what they had agreed would happen, and Mr Briggs thought that Mr Owen had good intentions.  On other occasions outside those meetings Mr Briggs had separate discussions with Mr Owen to reinforce some of the management behaviours in relation to his interaction with the Appellant.  However, Mr Briggs used the expression that it was "very hard to teach an old dog new tricks" to describe the struggle Mr Owen had in changing his behaviour as a manager. 
  1. [252]
    Mr Briggs gave evidence that, although Mr Roberts might have suggested out of frustration that Mr Owen could take over the project, Powerlink had no intention for him to do so. 
  1. [253]
    For completeness I note that, according to Dr Nielsen, during consultations with him (after the Appellant left work in June 2013) the Appellant expressed the view that he wanted to leave the project but he was not allowed to or felt that he could not leave the project.
  1. [254]
    The Respondent submits that, based on Ms Brutton's oral evidence and her diary entries written at the time of the meeting on 25 February 2013 and as the meeting progressed, it is clear that the meeting transpired as she described.  In particular, the Respondent submits, the Appellant's claim that he opened the meeting by asking to be transferred, and was met by stony silence, cannot be accepted.  Furthermore, having regard to how Ms Brutton presented as a witness, it can reasonably be inferred that she would not have acted in the confronting manner suggested by the Appellant.  She explained that Powerlink's approach to redeployment, in this type of circumstance, is always to work with the managers to first look at how they can resolve the issues within the group, whilst being cognisant of the employee's well-being. 
  1. [255]
    Consideration and conclusion: Having regard to the way in which these so called six offers to leave were conveyed, and the circumstances in which they were put to management, I am not satisfied that the communications constituted firm requests or offers to leave. Rather, they can be characterised more accurately as openings to conversations about the Appellant's ongoing role in the project or, as the Appellant wrote in his final submission, he gave Powerlink "the option of removing him from the project if they wanted."  At no point did he threaten to resign.
  1. [256]
    In particular, I find that:
  1. (a)
    on 27 August 2012, the Appellant invited Mr Owen to indicate whether he was formally taking over the project, and indicated his willingness to transfer files to Mr Owen;
  1. (b)
    at the first occasion in October 2012, the Appellant invited Ms Gray to consider giving the project to Mr Owen;
  1. (c)
    in the heat of the moment on the second occasion in October 2012, the Appellant suggested that Mr Owen take over the project or "butt out;"
  1. (d)
    on 12 November 2012, the Appellant was seeking support as Project Manager and suggested that, if such support was not given, he be redeployed from the project;
  1. (e)
    on 7 December 2012, the Appellant made a plea for Mr Owen to allow him to run the project as Project Manager or take over as Project Manager; and
  1. (f)
    although there is some dispute as to whether, on 25 February 2013, the Appellant asked to be redeployed within Powerlink, there is no dispute that, after discussion with Mr Baker and Ms Brutton, he agreed to stay on the project.
  1. [257]
    I note that, having regard to the period referred to in the list of stressors, only the last three of those exchanges are strictly relevant to this appeal.  It is clear that the Appellant was experiencing considerable frustration and irritation about some of the steps taken by others, particularly Mr Owen, in relation to the project which were (or were potentially) inconsistent with his understanding of Powerlink's policies and the way he considered the project should be managed.  His response was:
  1. (a)
    on the one hand, to invite Mr Owen to state whether he wished to take over the project or to invite managers to allocate responsibility for the project to   Mr Owen (with the corollary that the Appellant would acquiesce); while
  1. (b)
    on the other hand seeking support from his managers and their assistance in bringing Mr Owen into line with Powerlink's policy and with the Appellant's role and responsibilities as the Project Manager. 

The Appellant did not offer to resign and, however his statements were understood at the time they were made, it is clear from his subsequent evidence that he was not seeking to leave Powerlink but only to be relieved of project management responsibilities for that project if Mr Owen were to take on the role.  At its highest, the Appellant's only formal request for redeployment was made, but not pressed, on 25 February 2013.

  1. [258]
    It follows that, if those occasions were not offers to leave, I cannot find that the management of Powerlink refused to accept the Appellant's offers.  This matter is also considered near the end of these reasons in relation to management action.
  1. [259]
    I accept that Powerlink was reluctant to redeploy the Appellant because he was making good progress with a difficult project and because it would be difficult to replace him as Project Manager.  I am not satisfied (including because of the options listed in the Return to Work Action Plan, discussed below) that Powerlink would not have redeployed him away from the project had he made a firm request for that.
  1. [260]
    Return to Work Action Plan: Following the meeting with Mr Baker on 26 February 2013, the Appellant returned to work but did Project Management study in his glass bowl, away from Network Property.  On Friday 1 March 2013, he received an email from Mr Baker, attached to which was the "Return to Work Action Plan - Grant Roberts" ("RTWAP") which included a table Appendix A "How this action plan will address the issues raised" (Exhibit  17 document 35).  By reference to a specified stressor or stressors, the table listed action required by the Appellant and action required by others.
  1. [261]
    The Appellant's evidence: According to the Appellant, he read the RTWAP and Appendix A and was "less happy." He then read the email in which Mr Baker stated "I am confident we can collectively make it work and move forward with a happy, co-operative and productive working environment."  He understood that by using "collectively" Mr Baker meant that he and the Appellant could work together to come up with the program that would best suit the Appellant and his return to work.  The Appellant considered these were "nice words" but he was not convinced.  He understood that Mr Baker had "ducked the issue of ethics altogether and he … didn't want to talk about some things and he … wanted to talk about other things that [the Appellant] didn't want to talk about."  Indeed the RTWAP "upset the hell out of me."  According to the Appellant, he said at the meeting that, while he was not going to make a "big deal with this" and he was "not going to be difficult," he wanted to let them know that there were "bits in here that I'm not happy with."  He stated that the action required of others in the document did not address his "biggest bugbear."  In particular, the actions required by others about communicating proactively with team members and providing timely advice was "all fluff." 
  1. [262]
    The following "key stressors", said to be as "described" by the Appellant, are listed at the start of the RTWAP:
  1. (a)
    "Receiving inconsistent messages regarding project priorities from senior managers.  Which aspect of our reputation is most important to Powerlink? (a) Reputation with proponents (commercial) or (b) landowners/politicians.
  1. (b)
    Feeling of loss of personal credibility/reputation due to lack of support from MNP and senior management around decisions.
  1. (c)
    Project delays arising from lack of clear and timely decision-making from MNP and senior management
  1. (d)
    Apparent inconsistency and not following process by MNP and senior management
  1. (e)
    Lack of time to complete Project Management Studies
  1. (f)
    Ambiguity around accountability in role as PM."
  1. [263]
    The Appellant and Mr Baker had a coffee meeting on 1 March 2013 to discuss the document.  According to the Appellant, although he agreed (with some qualifications) with the key stressors listed, he noted that the document did not record his "major concern about being made a liar and a bastard." 
  1. [264]
    In cross-examination, the Appellant agreed that "loss of personal credibility and reputation" had the same import as an expression along the lines of the Appellant being "a liar and a bastard."  However, he disagreed with the second part of the sentence that the loss was "due to lack of support from MNP [i.e., Manager Network Property, Ms Gray] and senior management."  Rather it was due to perceptions of landholders.  The Appellant contended that the reason for his loss of personal credibility and reputation could not be separated from the reference to that loss in order to say, apart from that, the stressor was "fine."
  1. [265]
    The following options were listed in the RTWAP to address the key stressors:
  1. Additional time off
  1. Return to work - Projects Team - PM on Surat Project (normal position)
  1. Return to work - Projects Team - alternative projects
  1. Return to work - redeployment to elsewhere in Powerlink 
  1. Return to work - combination of 2 & 3 (i.e. work on an alternative projects for a month and then return to the Surat Project)
  1. [266]
    A footnote to the RTWAP records the Appellant's express preference for Option 2, and refers to a conversation between the Appellant and Mr Baker on 26 February 2013.  The RTWAP lists the positives Option 2 as:

  "Least disruptive to the individual and to project delivery in the short-term.

Grant continues with the Project he was assigned to manage and in the PM role he was employed to do.

Grant has expressed a preference to return to work to the Surat Project and finish this work."

and the negatives as:

"Issues specific to the Surat project (and more general ones) that caused absence need to be resolved.

Risk of being reinjured if issues unresolved."

  1. [267]
    When the Appellant was referred to that footnote, he agreed "absolutely" that he said that.  However he said he had agreed "with great reluctance and under pressure, and I don't think it should have been put to me.  I really don't think it should have been up to me."  According to the Appellant he "said those words but … through gritted teeth" and "under great pressure."  He stated that his impression was confirmed when            Mr Baker said next "Personally, that's great, because it was going to be a big problem to me," and that statement "confirmed the … vibe" that the Appellant felt. 
  1. [268]
    In his oral evidence, the Appellant said that he interpreted some action items in Appendix A as "unfair" because he considered that he had been doing what it was suggested he should do.  For example, he referred to the action that he "Actively contribute to effective functioning of the Surat project team, by communicating regularly and proactively with team members (SPM and PM) and others within and outside Network Property."  His response to that was:

"I'm thinking, you're telling me that I have not been. …   so, obviously, I have not been communicating effectively and proactively with team members … for example, the meeting that I said I had with Alison Gray about management speeding up and the process of doing the EISs, I thought was an example of me communicating effectively, particularly senior managers, so I thought that was unfair." 

  1. [269]
    The second action was "Actively seek clarification/direction with regards to interpretation of PQ policies.  (before communication with owners or other parties)."  The Appellant said that that one:

"particularly struck me, because, implicitly, I have been talking - I have been going off the reservation and talking to other parties, not knowing what I was talking about, and I thought that was very unfair because the biggest beef that I had was [that] …  I was telling them the policy as I understood it and then I find out, whoops, no, other people are - the policy is changing.  So I thought that was particularly unfair." 

  1. [270]
    At the hearing, the Appellant made criticisms in a similar vein in relation to the other listed actions required of him.  He gave evidence that, although Mr Baker was friendly over coffee and the Appellant was trying not to be difficult, he eventually said that he was not going to make an objection to this and that they would go ahead, but he thought the Appendix A was wrong and he did not like it.  On his reading of Appendix A, the RTWAP did "nothing" and included "unfair accusations."  There were no actions that were effective, and the actions required of others were "all fluff" that did not address the stressors.  It was "ineffective" and had "no effective actions."  In the Appellant's assessment, this was not a return to work plan.  It was, at worst, an "unfair criticism" of the Appellant.  He said that, if Powerlink had criticisms of him, they should tell him about them and he would respond and correct the record.  Because Powerlink included these matters in the RTWAP, the Appellant said he would have felt like, and looked like "a dill" if he had objected to the document, so he did not object to it. 
  1. [271]
    Mr Baker's evidence: Mr Baker gave evidence that he was the primary author of the RTWAP with assistance from Ms Brutton and others, and input from the Appellant. 
  1. [272]
    According to Mr Baker, the purpose of the RTWAP was to get the Appellant back to work in a sustainable way so that he would be happy to continue working as part of the team, and be productive and support the rest of the team.
  1. [273]
    Mr Baker explained that his sentence "I am confident we can collectively make it work and move forward with a happy, co-operative and productive working environment" in his email dated 1 March 2013:
  1. (a)
    reflected the time, effort and goodwill shown in the previous week to put the RTWAP together in a workable way; and
  1. (b)
    showed that Mr Baker was reasonably happy about the way things had turned out. 
  1. [274]
    Ms Brutton's evidence: Ms Brutton worked with the managers on the RTWAP including about what they would do.  The language used provided an overview of the Appellant's key concerns and was "professional and high-level as well" (rather than using words such as "liar" and "bastard"). 
  1. [275]
    In cross-examination it was put to Ms Brutton that the second part of (b) of the key stressors in the RTWAP - "Feeling of loss of personal credibility/reputation due to lack of support from MNP and senior management around decisions" - was incorrect and did not reflect the Appellant's conversations with her.  More precisely, the loss of reputation was not due to lack of management support but perception with landholders.  In reply, Ms Brutton stated:

"in my notes obviously there were a whole lot of different issues that you'd raised, landholders being one of them.  Your own personal reputation you definitely raised as well and some concern about what the decisions were having on Powerlink's reputation as well.  So from my understanding – and I thought we'd agreed on these points with yourself as well before we finalised this action plan – that the decisions made by the managers higher up than Bob were causing you a feeling of loss of credibility and your own reputation as well." 

  1. [276]
    Follow up on implementation of RTWAP: The Appellant said that there were fortnightly meetings with Mr Baker about his return to work.  Those meetings were held away from their open plan office.  Mr Baker adhered to what was in the RTWAP, discussing the issues listed there.  Mr Baker said that he had several meetings with the Appellant to discuss the progress of his return to work plan.  Mr Baker made notes of those meetings on 13 March and 4 April 2013 (Exhibit 16).  According to Mr Baker, the Appellant did not request at those meetings that he be taken off the project team. 
  1. [277]
    Mr Baker's annotations to copies of the RTWAP made in relation to those meetings indicate that most or all of the topics, including actions required by the Appellant, were discussed.  In particular, the annotations record that:
  1. (a)
    on 13 March 2013, the Appellant expressed concerns about deals with noisy owners to the detriment of other (cooperative) owners, and concerns about alignments made at a late stage.  He was aware of the need to follow and be seen to follow due process for all owners. Apparently the Appellant had "still some frustrations with corporate (mgt) involvement but less concern."   He indicated his perception that the Project Manager was personally carrying the reputation for Powerlink, but that part of the note concludes "personal reputation ≠ corporate."  There were proposals to address the completion of the Appellant's Project Management Studies (including an extension of his completion date, approval of its cost and arrangements for him to have a regular time to work on course materials).  The note concluded "Generally feel OK."
  1. (b)
    on 4 April 2013, the Appellant expressed concerns about the consistency of approach between landowners if decisions are made on a "one-off" basis.  He appears to have expressed concern about not knowing of some decision-making, and asked that decisions be communicated via the Project Manager.  They discussed interactions with "difficult" owners, including the political sensitivity of that matter, and noted that the Appellant agreed that Mr Briggs was helping to streamline decision-making wherever possible.  The note indicates that the Appellant stated "Heading in 'right' direction" and that       Mr Briggs was "also happy with progress."

Neither note refers to any request by the Appellant to leave the project.

  1. [278]
    For his part, the Appellant said that he was "in a bind at that point" because he had said he would not make a fuss and then they were having meetings with a plan that he did not like but because he did not "put [his] foot down then" he was "going along with the … flow."  The Appellant agreed that issues were addressed that might identify the risk of re-injury for him, and that he was given the opportunity to express his continued involvement in the project and his concerns about how matters were impacting on him in the workplace (such as the deals with the noisy neighbours), but he said that did not get him anywhere.  He agreed that other matters were discussed and everything was heading in the right direction. 
  1. [279]
    Mr Briggs gave evidence that he was present at the second and third meeting and provided feedback in relation to the RTWAP.  He would catch up regularly with the Appellant on a monthly basis, as well as informal meetings at the spur of the moment if they had an issue to discuss or had returned from the field.  He observed that, at times, the Appellant indicated that he wanted to leave the project.  Mr Briggs understood that to be due to the Appellant's frustrations, and hence the Appellant would say things to the effect that they could take the project off him if they wanted to, or could get rid of or sack him.  Mr Briggs would always say that they wanted him on the project and that he was doing a good job.  At no stage did he say that the Appellant should be taken off the project, and he never entertained the idea of removing the Appellant from the project.  Indeed he seemed to agree that he probably would have commented to the Appellant that he would be difficult to replace on the project.  He would have made such a comment because, given the challenging nature and complexity of the project, it would not have been easy to bring someone new into it.  Indeed, changing a Project Manager can cause delays to a project.
  1. [280]
    There were some issues within the group about what they would or would not say to landholders, particularly in relation to people obtaining power across other people's land (even though people would know that from the study plans).  Apparently the Appellant took the approach of explaining to landholders what Powerlink was about and how their actions were justified.  He was concerned about Powerlink's policy "changing under pressure" and that some landholders "were getting screwed" at a time when he was not allowed to tell them that the policy had changed.
  1. [281]
    The Appellant stated that the last of his scheduled return to work meetings was on 3 June 2013.  Mr Miller, Mr Baker, and Mr Briggs were present and Mr Miller asked the Appellant how he was travelling.  By the Appellant's account, Mr Briggs asked whether he was "ready to start telling the PQ story" and the Appellant replied "no, no" because it was "never about that."  Rather, he did not know what the Powerlink story was, as it changed under pressure, and the Appellant felt "a little bit affronted" by      Mr Briggs who was not involved in the writing of the RTWAP.  The Appellant understood that Mr Briggs had the idea that the Appellant was being accused of not telling the Powerlink story.
  1. [282]
    In an email dated 4 June 2013, the Appellant took issue with the minutes of that meeting prepared by Mr Briggs and sent by email that day, in particular the following statement:

"GR [i.e., the Appellant] was asked how he is accepting decisions by management/executive which directly impact on the project.  GR appears to be more accepting of such decisions and accepts project impact which result from such decisions."

  1. [283]
    The Appellant characterised that as incorrect and being a repetition of the "accusations" that Mr Briggs had made in the meeting and about which he had been corrected at the meeting.  He replied by email:

"This is not right, this is language that crept into the document and which I tolerated at the time.  But I will not tolerate it being restated in such a bald way, as if I was refusing directions.

It was never about 'not accepting' these decisions.  It was about decisions that were made out of the blue and with the effect that there were winners and losers, the former being those that spoke to senir [sic] managers and the latter being those that listened to GR.

This means there are two contradictory messages for me to deal with as PM: the formal one being that PQ follows the SPA/ALA etc, i.e. a fair and open process that results in the least overall impact, the subtext being that PQ will do side deals when it feels threatened at which point 'least overall impact' goes out the window.  Not to mention fairness, equity and personal ethics."  (Exhibit 17 document 50)

  1. [284]
    In his oral evidence about the meeting, the Appellant said that, while the meeting was still friendly, he had indicated that in the future some lessons would need to be learned including knowing ahead of time what the rules are, "because this has been murder for me."  By his account, Mr Baker and Mr Miller said that it was not really up to the Appellant, and that others in the room should have been on top of network customers and monitoring what was going on.  They urged him not to take it on himself, stating that lessons learnt would be at a higher level. 
  1. [285]
    The Appellant also took issue with a statement in the email of 4 June 2013 that            Mr Briggs would arrange a meeting next week to discuss the Appellant's thoughts further "including GR fitting better into the NW Surat team work environment."  The Appellant's reply by email on 6 June 2013 was "This is new.  Presumably I am not fitting in to the NW Surat team work environment?  Could you elaborate please"  (Exhibit 17 document 50).  In his oral evidence, the Appellant described this as "calling him out" and asking him to "back it up." 
  1. [286]
    The Appellant described his state of mind on his final day at work.  Having read and replied to the email, he was getting "more and more upset."  He was in "a state." In that context, he recalled overhearing a conversation between Ms Azzopardi and          Mr Miller about the Ladbrooks and the Taylors putting in invoices for substantial sums.  His response was to think that the matter would feature on the front page of a Courier Mail and eventually go to the Crime and Misconduct Commission ("CMC").  He continued:

"Now, on reflection, I had no way of knowing whether they were - they did put those in or they were talking about putting those in, but that was my - because I was in such a state, reading this email, 6th of June 2013, 10.26 a.m., that was my thought and that's when I left work.  I'm not alleging they did, but that was my impression at the time, probably because I was in such a state."  (T2: 28)

He described his "state" in these terms:

"I thought if I say anything I'm going to say too much.  I'm going to really start - I'm really going to start paying people out here. …  So rather than start yelling at people, I got my stuff and I - I walked - I went."  (T2: 29)

Having signed a document in relation to some survey contracts, he left work about lunchtime that day.

  1. [287]
    Mr Briggs gave evidence that before the RTWAP,  Powerlink decided to restructure the project and create what was called the North West Surat team.[27]  The RTWAP probably related more to the previous organisational structure.  He and the other managers met with the Appellant on 3 June 2013 to discuss each of the action items and how the RTWAP would work in the new team environment.  The meeting went for about an hour, and afterwards Mr Briggs typed some general notes in relation to it.  The Appellant forwarded his responses to those notes on 6 June 2013 (Exhibit 17 document 50).
  1. [288]
    In his oral evidence, Mr Briggs elaborated in response to the Appellant's response "This is new.  Presumably I am not fitting in to the N W Surat team work environment?  Could you elaborate please."  He said that it was not that the Appellant did not fit into the North West Surat team work environment.  Rather, they had gone from two Senior Project Managers and two Project Managers to create the new team, and discussions were about the new team environment and that they would all have to adjust to it to become more effective, efficient and high performing.  Mr Briggs volunteered that that might not have been communicated adequately, and there was probably a misunderstanding in relation to some of the wording.  He said it was never the intention to suggest that the Appellant did not fit into that team environment.
  1. [289]
    Mr Briggs replied to the Appellant by email at 1.02pm on 6 June 2013 as follows:

"I am happy to keep your comments for the return to work plan on the record.

In relation to the term 'fit', it was never the intention to indicate that you do not fit into the team and now realise that it was a poor choice of words.  The point I was trying to make is that we all need to take on the responsibility to make the NW Surat Team work and function well, and to discuss with you (like I have had and will be having with others) on how you can contribute to a high performance, highly effective and functioning team environment.  We all, including myself, have the same role.  I have changed the wording below to reflect this.

Apologies for any confusion."  (Exhibit 8)

Mr Briggs had struck out the words "GR fitting better into the NW Surat team work environment" from the text of his email of 4 June 2013.  Apparently the Appellant did not open the email of 6 June 2013, as he had left work. 

  1. [290]
    Mr Baker recalled the email dated 6 June 2013 and stated that it covered the key matters discussed at the meeting on 3 June 2013.  He said he did not recall the Appellant requesting to be taken off the project at that meeting. 
  1. [291]
    Mr Miller recalled some discussions with the Appellant about whether he should remain on the project, certainly in the period towards when the Appellant departed on  6 June 2013 on what became extended leave.  Mr Miller particularly remembered one discussion (one or two days before that date) the intent of which was to ask the Appellant whether he was comfortable to continue as Project Manager on the project.  In that conversation, reference was made to the CEO saying they needed to take some innovative approaches to move forward with the negotiation with landholders to try to avoid trouble and dispute where they could.  They wanted to confirm that the Appellant was comfortable with that part of the process and whether he wanted to continue as Project Manager in that project.  Mr Miller was sure that he made it clear to the Appellant that Powerlink was "fairly resource-limited" and that it would not be easy to find another Project Manager.  They would have to move someone from another project.  Mr Miller recalled that he wanted to be balanced "in the sense that I didn't want to give the impression that I either wanted him off or not off the project.  I wanted him to understand it's a choice to make, "are you comfortable?", and he was fairly clear that he was comfortable to continue on."  Mr Miller said that the Appellant suggested he was happy to be the Project Manager.  Mr Miller said that he walked out of the meeting feeling that the Appellant was comfortable to move forward.  He was not expecting the Appellant's level of stress to be such that he was totally uncomfortable.  Rather, Mr Miller felt that "it was tense, but it was business as usual."  Mr Miller was disappointed that the Appellant left within a few days, and it had occurred to him that "maybe [the Appellant] didn't give me the correct indication."
  1. [292]
    When it was put to Mr Miller in cross-examination that the term "innovative" was code for Powerlink making it up as it went along, he replied that it was about the need to explore what they could do to improve the processes for a project that was running late.  For example, although an early access agreement with a substation owner was something Powerlink did not normally do, it had to consider whether it was prepared to do that.  Powerlink would not do it simply because it was different, and would need to consider whether it could get value out of entering such an agreement, and how it interacted with landowners to keep things moving.  By "innovative" he meant that Powerlink needed to "work at this to get the best outcome we possibly can."  That was what the CEO wanted. 
  1. [293]
    Dr Nielsen gave written and oral evidence in relation to the RTWAP.  He did so on the basis that he has expertise on psychological occupational health and safety and return to work plans.  Dr Nielsen expressed the view that:
  1. (a)
    a return to work plan is intended to facilitate a person's rehabilitation so that they are able to return to their original role, with their original employer, as quickly as possible without excess risk of relapse of the psychological injury;
  1. (b)
    return to work plans are supposed to provide information for the employee and the employer so that can happen;
  1. (c)
    if a return to work plan is poorly written, the best outcome would be that the employee makes a successful return to work, however there is also a risk that the psychological injury could be exacerbated or the employee might get aggravated. 
  1. [294]
    In his report dated 2 May 2014 (Exhibit 14), Dr Nielsen was critical of aspects of the RTWAP.  In light of the Respondent's objections to the admissibility of aspects of his report, it is not appropriate to refer to any specific criticisms made by him. 
  1. [295]
    Appellant's submission:  However, partly in reliance on the opinion of Dr Nielsen, the Appellant submits that the RTWAP was fatally flawed and there was no effective return to work plan despite Powerlink recognising the need for it.  The Appellant contends that:
  1. (a)
    his main complaint was that the RTWAP was misused to say false things,[28] and so did not address the stressors;
  1. (b)
    these adverse comments were placed on his permanent record but because they were not frank allegations there was no adequate right of reply to correct the record;
  1. (c)
    other actions were listed that were peripheral to the problems and did not address the stressors;
  1. (d)
    the RTWAP did not say what it needed to say to prevent the recurrence or exacerbation of the Appellant's acknowledged injury;
  1. (e)
    some of the actions contained in the RTWAP were meant to put pressure on him to shut up;
  1. (f)
    as a result, the RTWAP did not have effective means of preventing re-injury and it contained things likely to make things worse.

In summary, the Appellant submits that Powerlink produced a badly done and badly intentioned RTWAP that made things worse.  Accordingly, the Appellant submits this was unreasonable action on the Powerlink's part. 

  1. [296]
    Furthermore, the Appellant submits that the final meeting to monitor the implementation of the RTWAP was used to reinforce the distortion of facts and to put pressure on him to "tell the Powerlink story" rather than the truth as he saw it.  He submits that the minutes of that meeting falsely recorded that the Appellant had adopted Powerlink's viewpoint and had no further problems with its practices, and introduce the damaging allegation that he was not "fitting in" with the project team. These minutes went on to his permanent HR record.  He submits that the relationship between himself and Powerlink was very badly affected by this. 
  1. [297]
    Respondent's submission:  The Respondent submits that the RTWAP was prepared in light of a discussion with Mr Baker and Ms Brutton and was expressed in appropriate terms when setting out the key stressors as described by the Appellant. The RTWAP expressly listed five options, including redeployment to elsewhere in Powerlink.  In the course of that discussion, the Appellant stated that he had decided that he wanted to come back to the project management role and finish of the work he had started in the Surat team.  He expressed the view that he liked the change and the fact that he would be reporting to Mr Briggs, who would assist with the project.  The Appellant had expressed a preference for Option 2.
  1. [298]
    Consideration and conclusion: Having regard to the evidence as a whole, including the circumstances surrounding the preparation of the RTWAP (such as the medical evidence about the Appellant's condition on his return to work on 25 February 2013, the discussions about the Appellant's concerns (stressors) and the options open to him that informed the preparation of the RTWAP, the restructuring of operational arrangements in relation to the project in 2013, and the Appellant's express preference for Option 2) I find that, whatever reservations the Appellant felt in late February 2013, he was willing to return to the project as Project Manager in accordance with the RTWAP.  I do not find that the document was fatally flawed or that it was substantially at odds with the Appellant's concerns or stressors.  Nor do I find that the action items were implicitly critical of the Appellant and his approach to his work.  It was a document that, properly implemented, could meet the interests of both Powerlink and the Appellant.
  1. [299]
    The Appellant read a number of the action items in Appendix A as critical of him, and hence formed the view that the RTWAP was significantly flawed and would not be effective in preventing re-injury (and indeed that it contains statements likely to make things worse).  I find that he was incorrect in that analysis, and that, having misconstrued the content of the RTWAP, the Appellant developed a wrongly coloured perception of it.
  1. [300]
    In relation to the implementation of the RTWAP, I find that, consistently with the Appellant's evidence, issues were addressed that might identify the risk of re-injury for him, and he was given the opportunity to discuss his continued involvement in the project and his concerns about aspects of it.  The annotations on the RTWAP about their discussions demonstrate that, to the extent that he had issues with some matters referred to in the document, the Appellant raised those concerns with his manager and they discussed them. The document identified that some decisions might be made at a senior level which he should accept even if they differ from his personal views. It appears that at least one discussion referred to the difference between personal and corporate reputations.
  1. [301]
    I accept that, despite the nature and scope of the discussions, the Appellant sometimes felt that this was not getting him anywhere.  I also find that he misconstrued the reference in the record of the meeting 3 June 2013 to him "fitting better" into the project team environment as a damaging allegation about him.  Unfortunately the Appellant did not receive the clarification and correction of the record (and an assurance that the Appellant's comments on the work plan would also be kept on the record) before he left work on 6 June 2013.  However I am satisfied that the process to implement the RTWAP was appropriate and that, as the annotations indicate, things appeared to be heading in the "right" direction.

Did the Appellant's injury arise out of, or in the course of, his employment and was his employment a significant contributing factor to his injury?

  1. [302]
    For the appeal to succeed, the Commission must be satisfied that, on the balance of probabilities, the Appellant's injury arose out of, or in the course of his employment and the employment was a significant contributing factor to his injury.
  1. [303]
    As the Respondent notes, the legal test that the injury must arise out of, or in the course of, employment is relatively undemanding.  There are decisions for the propositions that:
  1. (a)
    the phrase "arising out of" is wider than "caused by" and, although it involves some causal or consequential relationship between the employment and the injury, "arising out of" does not require that direct or proximate relationship that would be necessary if the phrase used were "caused by;"[29]
  1. (b)
    an injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to, the injury;[30]
  1. (c)
    in determining whether an injury occurred "in the course of" employment, regard must always be had to the general nature, terms and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.[31]
  1. [304]
    The question whether employment was "a significant contributing factor" to the Appellant's injury is a question of mixed fact and law to be determined by the Commission.  There are decisions for the propositions that:
  1. (a)
    the reference to "employment" in s 32(1) is to employment as a set of circumstances, that is to the exigencies of employment of the worker by the employer, and refers to what the worker in fact does during the course of employment;[32]
  1. (b)
    the fact that an injury has been suffered arising out of, or in the course of, employment is not sufficient to establish that the employment has been "a significant contributing factor to the injury" and there needs to be a more substantial connection between the employment and injury;[33]
  1. (c)
    employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs;[34]
  1. (d)
    if innocuous events which actually occurred were totally misconstrued by the claimant because of an existing condition, and the claimant imagined that other events or incidents had occurred, the claimant's employment could be said to be a contributing factor but not a significant contributing factor;[35]
  1. (e)
    the operation of disturbed perception and reasoning upon objectively identified workplace issues (such as the presence of toxic compounds in the product with which a claimant was required to work) can be sufficient to make the causal connection between the disorder and employment;[36]
  1. (f)
    where a claimant is mistaken about what their employer was asking them to do and becomes distressed on the basis of that misunderstanding such that there was no factual basis for their concern, or the workplace issues could be understood as pure fantasy, their employment would not be a significant contributing factor to the injury;[37]
  1. (g)
    events that do not occur in the workplace cannot contribute to the development of a work related psychiatric or psychological condition.[38]
  1. [305]
    Although it is clear that the Commission alone must decide whether the Appellant's injury arose out of, or in the course of, the Appellant's employment, and whether his employment was a significant contributing factor, the Commission can be assisted by the expert opinion of a medical practitioner who has an accurate understanding of the injury and the circumstances in which the injury occurred.[39] 
  1. [306]
    Dr Naidoo: Although he did not give oral evidence, the documentary evidence included Dr Naidoo's progress notes of consultations by the Appellant on five occasions between 18 February and 6 June 2013 (Exhibit 12), all of which fall within the period specified in the statement of stressors.  For present purposes it is relevant to note that:
  1. (a)
    on 18 February 2013, Dr Naidoo recorded the Appellant's history that there were problems with the project, others were "not fulfilling their aspect of job description", and the blame for the project falling behind was being placed on his shoulders, so that he was "very stressed" and, as a result, a medical certificate was provided;
  1. (b)
    on 25 February 2013, Dr Naidoo recorded that the Appellant had had time to think through the processes, he felt ready to tackle the problems at work, and forms were filled so that he could return to work;
  1. (c)
    on 30 April 2013, the Appellant reported "stress with work new issues new problems", and that he was being "used as a scapegoat for failure of the project [was] becoming more evident" every day - and the Appellant was stressed, not sleeping at night, and not eating but was pacing (and was suffering from an eye condition);
  1. (d)
    on 2 May 2013, Dr Naidoo recorded that the Appellant slept well the previous night but had a meeting during the day with more people involved, and he was "pacing again very anxious agitated" and had "stress no quality of life at present" (and the eye condition seemed to be contained); and
  1. (e)
    on 6 June 2013, Dr Naidoo recorded that the Appellant was not eating or sleeping and referred to "stress at work being used as fall guy for project gone wrong." 
  1. [307]
    Dr Naidoo also noted that the Appellant had no recorded past medical history.
  1. [308]
    The workers' compensation medical certificate issued by Dr Naidoo on 6 June 2013 while not including a diagnosis recorded that the Appellant was "stressed and very anxious" and that his stated cause of injury was "project falling behind being put in a bad ethical position company not following statutory process."  Dr Naidoo noted that the Appellant's injury was consistent with his description of its cause (Exhibit 6).
  1. [309]
    Dr Naidoo referred the Appellant to Dr Nielsen, a psychiatrist, for an opinion and further management (Exhibit 12).  He included his progress notes of consultation with that referral.
  1. [310]
    Dr Nielsen: Dr Nielsen saw the Appellant on 14 and 25 June and 9 and 16 July 2013.  The initial session lasted about one and a half hours, and subsequent sessions lasted about three quarters of an hour.  Dr Nielsen provided a report to Dr Naidoo dated        16 July 2013 (Exhibit 13) in which he provided a diagnosis that Mr Roberts has a major depressive order and generalised anxiety disorder.  In setting out the Appellant's history, Dr Nielsen recorded three factors related to the distress experienced by the Appellant:
  1. (a)
    because people from properties other than those with whom he negotiated were given compensation beyond what was required by legislation, the Appellant was made to look dishonest to the people with whom he had negotiated (and he identified with those people because he and they were from the bush);
  1. (b)
    the compensation to the other properties included rerouting powerlines that would unnecessarily cost the taxpayer millions of dollars, and that caused the Appellant distress as he thought it was not ethical;
  1. (c)
    not being able to complete the project would have an effect on his income in the short-term and his career in the long-term.

Dr Nielsen also noted that the Appellant had no other medical history.

  1. [311]
    Dr Nielson agreed that he formed his opinion based on the referral letter from                Dr Naidoo and "far more" on the history given to him by the Appellant. 
  1. [312]
    In the course of his oral evidence, Dr Nielsen expanded on his opinion about the cause of the Appellant's injury.  As I understood it, his evidence was in essence that:
  1. (a)
    the cause of the Appellant's psychological injury was his role and his concerns about meeting people with whom he had developed a relationship at places where he might work in the future, because he was made to look dishonest (i.e., a "lying bastard") as a consequence of his association with the project;
  1. (b)
    the Appellant's concern is to be understood in the context of someone who has obsessional personality traits (i.e., someone who likes to have things ordered and who likes to be ethical and have things done correctly, and who is concerned about being humiliated, rejected and looked down upon by people with whom he identified and with whom he grew up in the bush);
  1. (c)
    a trait is a less severe version of a disorder (so that an obsessional person tends to be rule-bound and cannot see the wood for the trees, to the point where their interpersonal relationships are ruined and their work performance suffers);
  1. (d)
    if someone has developed a psychological injury they are not usually angry at the people who are directly associated with that injury but with those who put them in that position, and as their condition deteriorates and they become depressed, they become angry at people around them;
  1. (e)
    the Appellant's relationship with his employers and being upset with his employers was not the cause of his injury at all, but rather the cause of his injury was that he had been, and would be, looked down on or humiliated by people with whom he identified;
  1. (f)
    people behaving unethically would not have caused him so much distress and definitely not the amount of distress that caused the psychological injury, nor would a requirement that he be involved in unethical dealings;
  1. (g)
    the Appellant had been distressed because, as a consequence of being obliged to act unethically, he perceived that he was going to be faced with people when he was walking down the street who would think poorly of him or even be physically threatening to him;
  1. (h)
    nonetheless the Appellant's injury was caused by work.
  1. [313]
    Appellant's submission:  The thrust of the Appellant's case is set out as follows in the concluding summary to his written submissions:
  • "Grant Roberts was required by his job to be part of some pretty dodgy behaviour by Powerlink.  This was done due to pressure of a contract that they had negotiated.  The effect of this was that there were winners and losers, be they adjoining landholders, landholders elsewhere in the project area, or stakeholders elsewhere in Queensland.
  • He was made be the public face of that dodgy behaviour which put him in an ethical bind not of his making, and this caused him distress;
  • Powerlink kept on with their dodgy behaviour regardless of his efforts to solve the problems;
  • Powerlink refused to let him exit the situation or at least not without penalty, for their own expediency, even after they acknowledged the effects on him;
  • Powerlink produced a badly done and badly intentioned RtW Plan that made things worse;
  • Powerlink applied further pressure to make him conform;
  • Powerlink punished him for not conforming; and
  • Eventually this caused an actual injury and he had to leave work on                      6th June 2013."
  1. [314]
    The Appellant submits that a global approach should be taken when analysing these matters.  He contends that the earlier items in the list by themselves may only have caused aggravation not injury, had Powerlink taken "the perfectly feasible options that were open to it."  But taken together, they become a "cascade of actions by Powerlink, each compounding the effects of the previous actions, and with an increasing degree of injuriousness.  The list then becomes something that cannot be discarded on the basis of requiring 'absolute and unremitting solicitude for an employee's mental health'." 
  1. [315]
    Respondent's submission:  The Respondent submits that the Appellant's injury did not arise out of and was not caused by his employment.  The Respondent's submissions in relation to specific stressors are set out earlier in these reasons.
  1. [316]
    The Respondent submits that, on the basis of the medical evidence, the Appellant's claim is that, because of what had occurred in the workplace, at some undefined stage in the future the Appellant may encounter those people with whom he felt he had a kinship, and they would react negatively to him because of what had occurred during the Powerlink project.  That claim should not succeed.
  1. [317]
    The Respondent submits that the most important issue to have arisen from the evidence is whether the Commission can still find employment is a significant contributing factor in circumstances where the events have not occurred as described by the Appellant and/or it is the Appellant's perception of events occurring in the workplace that is that significant contributing factor to his injury.  Critical findings of fact must be made in respect of those matters that are said to be causally connected with his injury.  Where those matters arise from the Appellant's perception of events occurring in the workplace, or have not occurred, his employment cannot be a significant contributing factor. 
  1. [318]
    The Respondent submits that the Appellant's employment was not a significant contributing factor to his injury because, in summary:
  1. (a)
    although the Appellant raised his concerns about the processes in relation to the project (including the special compensation arrangements with some landholders and the rerouting of the alignment of the proposed powerline), there is no evidence to support a finding that those "stressors" as described to Dr Naidoo and Dr Nielsen are factually correct, and his claims are far from reality;
  1. (b)
    the only evidence given by the Appellant of rerouting of the alignment of the proposed powerline was for an extra 1.5 kilometres (because of the slight alteration to the alignment on the Lambert property), which is not evidence of excessively long routes from one place to another and hence this claim is grossly exaggerated or fictitious;
  1. (c)
    although the Appellant's complaint to Dr Nielsen was that taxpayers were footing the bill, the Appellant was aware that the work being undertaken by Powerlink was a non-regulated commercial contract, and any additional expenses were being met within the terms of the contract, and hence there was no foundation to conclude that his claim was based on objectively identifiable facts occurring in his employment. 
  1. [319]
    Consideration and conclusion:  On the basis of the evidence set out in length earlier in these reasons for decision, I find that:
  1. (a)
    the Appellant considers himself to be open, honest and fair;
  1. (b)
    the Appellant has obsessional personality traits (i.e., he likes things to be ordered, and to be ethical and have things done correctly, and is concerned about being humiliated, rejected and looked down upon by others);
  1. (c)
    the Appellant held strong ethical objections to some of the actions of Powerlink in negotiating access and other agreements with, and paying the legal costs of, some landholders but not others - apparently on the basis that he considered that all comparable landowners (on the basis of project impacts) should receive comparable treatment;[40]
  1. (d)
    the Appellant held, and expressed to management, concerns about aspects of the way in which the project was being managed, in particular the types of arrangements that were entered into, and payments made to, some landholders in order to secure access to their properties prior to the construction stage;
  1. (e)
    the Appellant's concerns were based on a number of factors, including his assessment that:
  1. there would be significant additional costs (to the billpayers and taxpayers) of relocating the proposed powerline;[41]
  1. statutory requirements for EISs were not being met in the way the process was administered,[42]
  1. discretionary payments were being made for access to land prior to the EIS process, which payments were not based on heads of compensation under the Acquisition of Land Act 1967 (i.e. for obtaining easements or resuming land) and which were being made using community resources (which should not be paid "willy-nilly" by a government owned monopoly provider of essential infrastructure to get managers out of a bind of their own making, and hence were improper);[43]
  1. it is not policy that certain landholders are compensated by getting preferential treatment because they are in some way "more impacted" or "more important," and it is not policy that this be done to grease the wheels at the start of the project before its impacts are fully established;
  1. the different arrangements were not restricted to practical details;
  1. Powerlink knew that it was acting against its own policies;
  1. Powerlink consciously kept the special deals secret (and the Key Messages document in May 2013 showed "a guilty mind" on the part of Powerlink); and
  1. there was a lack of any substantive response on some occasions when he expressed his concerns to his managers;[44]
  1. (f)
    some matters (including decisions about whether a landholder was paid) were outside his responsibility as Project Manager;
  1. (g)
    there are internal inconsistencies in the Appellant's espoused reasons for his concerns;
  1. (h)
    although managers acknowledged his concerns, and sometimes took steps to deal with them, they continued with some actions that caused the Appellant distress;
  1. (i)
    the Appellant understood himself to be the face of the project to the affected landholders, tried to work within the system to manage upwards in relation to the issues he identified, and considered that he suffered for speaking up to Powerlink management; and
  1. (j)
    the Appellant considered that the cutting of corners on a statutory process for the EIS was a serious violation of his professional standards as an engineer and feared that, if and when this was exposed, he would be blamed for what he saw as the unfair treatment of some landholders, and it would be a serious risk to his reputation and future employment prospects.
  1. [320]
    As will be apparent from the analysis earlier in these reasons, some of his concerns, beliefs or assessments about Powerlink's actions were based on incorrect information or misconceived perceptions. However, the actions of Powerlink were real and not imagined.  The Appellant understood the relevant policies of Powerlink, some of which were reiterated to him in written communications from other Powerlink officers.  He observed actions taken by Powerlink which were inconsistent with the stated practices which he had followed, and which went beyond the statutory requirements.  He made those observations from the vantage point of a Project Manager, albeit that the actions about which he felt most concerned were taken by officers over whom he had no control, and were beyond the areas for which he had day-to-day operational responsibility at the relevant time.
  1. [321]
    It is apparent from my findings elsewhere in these reasons for decision that the Appellant has not succeeded in proving key stressors, either because he was wrong or there is insufficient evidence to support findings in his favour.  However, the Appellant experienced symptoms of what would ultimately be diagnosed as major depressive disorder and generalised anxiety disorder during the period when he was working as a Project Manager on the project and in response to actions taken by his managers in relation to the project.  Although his perceptions or concerns about some of those actions were misconceived, some were not (e.g. the potential for other landholders to demand similar agreements to that entered into with the Ladbrooks, with consequent delay and cost for the project). Accordingly, I find that his disorder arose out of, and in the course of, the Appellant's employment.
  1. [322]
    There is no suggestion that those symptoms were caused by anything other than the Appellant's employment or that they were an aggravation of a pre-existing condition.  Accordingly, I find that the Appellant's employment was a significant contributing factor to the injury.             

Is the Appellant's injury removed from the statutory definition of "injury" because of s 32(5) of the Act?

  1. [323]
    As noted earlier, even where the Commission is satisfied that a worker's injury arose out of, or in the course of their employment and their employment was a significant contributing factor to the injury, their application for compensation will be dismissed if the psychiatric or psychological disorder arose out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.
  1. [324]
    Given my findings that:
  1. (a)
    the Appellant's injury arose out of, or in the course of, his employment; and
  1. (b)
    his employment was a significant contributing factor to his injury,

it is  necessary to decide whether s 32(5) of the Act operates to remove the Appellant's injury from the definition of "injury" in s 32(1) and hence that his appeal must fail.

The operation of s 32(5) of the Act

  1. [325]
    The extent and limits of the operation of s 32(5) of the Act have been described in decisions on previous workers' compensation appeals.
  1. [326]
    In Q-COMP v Queensland Rail,[45] Hall P wrote:

"Section 32(5)(a) of the Act operates, inter alia, to deny a worker access to statutory benefits under a no-fault scheme notwithstanding that the injury exists, notwithstanding that the injury arose out of or in the course of the worker's employment and notwithstanding that the employment was a significant contributing factor to the injury."

  1. [327]
    For the present appeal to succeed, the Appellant needs to establish that:
  1. (a)
    his psychiatric or psychological disorder did not arise out of, or in the course of, management action, whether reasonable unreasonable; or
  1. (b)
    if it does so arise, such action was not reasonable or taken in a reasonable way (in other words that management action was unreasonable or taken in an unreasonable way).
  1. [328]
    In Q-COMP v Foote, Hall P wrote that, subject to the "very significant statutory qualifications" contained in s 32(5) of the Act, "an insurer takes a worker with all his faults."[46]  In relation to those statutory qualifications, Hall P wrote:

"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act).  Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[47]

  1. [329]
    In Sheridan v Q-COMP, Hall P referred to "a statutory deviation from the general rule where the psychological disorder arises out of or in the course of a claimant's expectation or perception of reasonable management action being taken against the worker, compare s 32(5)(b) of the Act."[48]
  1. [330]
    In Lackey v Workcover Queensland,[49] Hall P accepted that:

"the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by' …"

The former President repeated that statement in Avis v WorkCover Queensland ("Avis").[50]

  1. [331]
    In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining Pty Ltd,[51] Hall P stated that the statutory provision:

"does not withdraw from the definition of injury psychological disorders caused by reasonable management action taken in a reasonable way. It withdraws from the definition of injury psychological disorders arising out of reasonable management action taken in a reasonable way." (emphasis added)

  1. [332]
    He continued by reiterating that it was settled by the decision in Avis[52] that the test posited by the words "arising out of" is wider than that provided by the words "caused by."[53]
  1. [333]
    However, there is also authority rejecting the proposition that once an injury was in any way "touched" by reasonable management action reasonably taken it is not compensable.[54] In a recent decision, Martin J expressed his agreement with the reasoning in Q-Comp v Hohn where Hall P said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury.”[55]
  1. [334]
    There is also authority in decisions of Hall P for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case," and that such circumstances can include circumstances relating to the psychological make-up of the worker where those circumstances are known to the employer.[56]
  1. [335]
    In Bowers v WorkCover Queensland,[57] Hall P rejected a submission that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable.
  1. [336]
    There are also decisions to the effect that:
  1. (a)
    what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;"[58]
  1. (b)
    it is not necessary that management action be perfect or above criticism,[59] and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."[60]
  1. [337]
    In Prizeman v Q-COMP,[61] Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
  1. [338]
    In Svenson v Q-COMP,[62] Hall P found that the appellant had "developed a propensity to perceive 'bullying' in the conduct of others and to react to it."  Hall P continued:

"Perfectly reasonable activity in the workplace may be held to be a significant contributing factor to a psychiatric injury where a claimant's perception of what has occurred is quite different to the reality of that which has occurred.  But an injury which arises out of or in the course of reasonable management action reasonably taken is not removed from the exclusion at s 34(5) because of the claimant's flawed perception, see esp. s 34(5)(b)." 

  1. [339]
    For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way."  The responsibility for management action being taken in a reasonable way lies with the management.  Whether management action was taken in a reasonable way is a question of fact, and reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.[63]
  1. [340]
    The Commission's role is to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way.[64] As Martin J stated:

“The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5).  The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.”[65]

  1. [341]
    Appellant's submissions:  The Appellant submits that:
  1. (a)
    management action is not the issue in this case because management action was not "taken" in the active or direct sense[66] and therefore s 32(5) of the Act does not apply; and
  1. (b)
    in any case, Powerlink management action was not "reasonable management action reasonably taken" and therefore s 32(5) of the Act does not apply.

He also contends that no amount of stretching of the language or logic will make Powerlink's behaviour fit the standard of reasonable management action, reasonably taken.

  1. [342]
    Respondent's submissions:  As noted earlier, the Respondent submits that the list of stressors makes it "abundantly clear" that the matters described relate to management action in connection with the Appellant's employment.  The Respondent submits that there is a causal connection between the Appellant's injury and management action, and that the reasonable management action provisions of the Act will operate to exclude the injury. 
  1. [343]
    The Respondent also submits that the two legs of the Appellant's submission confuse elements of s 32(5) of the Act.  In particular, the Respondent points out that s 32(5)(a) refers to reasonable management action taken by the employer "in connection with the worker's employment," whereas s 32(5)(b) refers to the worker's expectation or perception of reasonable management action "being taken against the worker."  The Respondent refers to a statement in Parker v Q-COMP to the effect that s 32(5)(a) is not about reasonable management action taken in a reasonable way "against" a worker and there is nothing in the language of that paragraph to suggest that it is confined to management action taken in a reasonable way solely in connection with the claimant worker's employment.[67] 
  1. [344]
    The Respondent does not submit that the management action in question in this case was management action being taken against the worker, and accepts that s 32(5)(b) of the Act does not apply.
  1. [345]
    Rather, the Respondent submits that there is a causal connection between the Appellant's injury and management action, and that the reasonable management action provision of s 32(5)(a) of the Act will operate to exclude the injury.
  1. [346]
    Where it is factually possible and appropriate to do so, an Appellant may seek a global assessment of multiple aspects of management action out of which, or in the course of which, the condition has arisen, and thereby exclude the operation of s 32(5).[68]
  1. [347]
    The Respondent submits that, having regard to the circumstances of this case and relevant decisions of Hall P,[69] it is appropriate to deal with the stressors in this case globally, given the temporal link between the matters complained of and because the personalities involved were relatively constant.
  1. [348]
    As noted earlier, the Appellant agrees that a global approach should be taken.
  1. [349]
    The Respondent submits that, having regard to the Appellant's list of stressors and the way management dealt with each of those matters, s 32(5)(a) applies in relation to this appeal because reasonable management action was taken in a reasonable way by the employer in connection with the Appellant's employment.  In particular, the Respondent submits that:
  1. (a)
    although when Powerlink first started the project it thought that it was going to be like other projects and the Project Manager could manage the relationships, as it became apparent that there was more complexity to the project because of what the gas companies were doing, Powerlink acted reasonably in responding to the changes and the pressure being put on the Appellant and relieved him of some aspects of the project manager's role (by adding other community contact officers) and that action was taken in a reasonable way;
  1. (b)
    the Appellant's managers at all times communicated to him that they understood any reasons for the delay in the project were not of his making;
  1. (c)
    there is no evidence to support a finding that Powerlink was involved in inappropriate conduct when its provided compensation to certain landholders beyond what was required by the legislation and by rerouting parts of the powerline;
  1. (d)
    rather there was evidence that Powerlink had previously entered into agreements with landholders similar to that which had been entered into with the Ladbrooks and, simply because that was not common practice does not make the decision to enter into the agreement with the Ladbrooks on this occasion improper;
  1. (e)
    indeed the Appellant's evidence was that he had no objection to the agreement provided there was consistency in treatment with other land holders;
  1. (f)
    given the particular circumstances of this project, including complications caused by the gas companies' activities, it is absurd to suggest that Powerlink developing work practices in view of the changing pressures was anything other than reasonable management action taken in a reasonable way in connection with the Appellant's employment;
  1. (g)
    there are no circumstances in which the Appellant could be found to look dishonest to the people he had negotiated with, and the management action taken by Powerlink in relation to those matters was reasonable and was taken in a reasonable way in connection with the Appellant's employment;
  1. (h)
    in developing the RTWAP, the Appellant's managers adequately set out his concerns in professional language (without resort to words such as "liar" and "bastard"), and the management action undertaken by Powerlink in respect of these matters was reasonable and taken in a reasonable way in connection with the Appellant's employment.
  1. [350]
    Consideration and conclusions:  The statement of stressors suggests that there was a direct link between the actions of managers and the Appellant's injury.  For that reason, and reasons outlined in [323] and [324], it is necessary to decide whether s 32(5) applies to this appeal.
  1. [351]
    I agree, generally speaking, with the submission summarised at [349], and conclude that s 32(5)(a) of the Act operates in relation to the circumstances of this case. 
  1. [352]
    It is not necessary to repeat or expand upon the matters listed in [349].  I simply add that, although the agreements entered into with individual landholders (particularly the agreement with the Ladbrooks) went beyond the usual practice followed previously by Powerlink, the timing and content of the agreements was defensible for reasons explained earlier in these reasons for decision.  Consequently I find that they constituted reasonable management action by PowerLink.             
  1. [353]
    Earlier in these reasons I concluded that what the Appellant described as offers to leave during the period covered by his list of stressors were not firm offers to leave but were openings to discussion about the Appellant's ongoing role in the project (see [255] to [257].
  1. [354]
    If I am incorrect in that conclusion then, having regard to:
  1. (a)
    the circumstances in which the offer or offers to leave were made;
  1. (b)
    the absence of any medical evidence before Powerlink to suggest that the Appellant would suffer a psychological injury if he was not redeployed away from the project; and
  1. (c)
    the preference of management to retain the Appellant's knowledge, skills and experience for the project (as well as the practical difficulty of replacing him at that stage in the project),

the decision of management not to redeploy the Appellant from the project is properly characterised as reasonable management action taken in a reasonable way by Powerlink in connection with the Appellant's employment.  As it happens, the action taken by Powerlink comes within one of the examples of reasonable management action listed after s 32(5) of the Act, namely a decision not to award a transfer of the Appellant's employment.

  1. [355]
    I do not find that every action taken by Powerlink in relation to the project was perfect or necessarily best practice.  Nor is that necessary for s 32(5)(a) to operate here. 
  1. [356]
    As outlined earlier, the circumstances in which the project was implemented posed unusual challenges, and Powerlink had to respond to those challenges within the time and other constraints of the contractual arrangements.  It is clear that the operational management structure for the project changed from time to time in response to those challenges, and that there were some differences in operational styles and gaps in communication which created difficulties for the Appellant and his managers from time to time.  Managers (particularly Mr Briggs) attempted to remove or reduce those difficulties.
  1. [357]
    There appears to be no significant suggestion that management action was not taken in a reasonable way.  Indeed, the Appellant characterised the tone many of the discussions and the content of some of the emails in positive terms.  His main criticism seems to be that, although they were polite and courteous, his managers did not accept and adopt the views he expressed.  I find that management action was taken in a reasonable way.
  1. [358]
    Having regard to the evidence as a whole, I am satisfied that the Appellant's psychiatric or psychological disorder arose out of, or in the course of reasonable management action taken in a reasonable way by Powerlink in connection with the Appellant's employment.

Orders

  1. [359]
    For the reasons set out above, I am satisfied that:
  1. (a)
    the Appellant was a "worker" for the purposes of the Act;
  1. (b)
    the Appellant suffered a personal injury that is a psychiatric or psychological disorder diagnosed as a major depressive disorder and generalised anxiety disorder;
  1. (c)
    the injury arose out of, or in the course of the Appellant's employment;
  1. (d)
    the Appellant's employment was a significant contributing factor to the injury; and
  1. (e)
    the Appellant's disorder arose out of, or in the course of, reasonable management action taken in a reasonable way by his employer in connection with his employment.
  1. [360]
    Consequently, the Appellant's claim for compensation is excluded by the operation of s 32(5)(a) of the Act and cannot be accepted.
  1. [361]
    It follows that I should make the following orders:
  1. (a)
    the appeal is dismissed;
  1. (b)
    the decision of the Workers' Compensation Regulator is confirmed; and
  1. (c)
    the Appellant is to pay the costs of, and incidental to, the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
  1. [362]
    Order accordingly. 

Footnotes

[1] The constraints could include social constraints such as housing and graveyards, assets on the property, and environmental constraints such as vegetation, creeks, high raised soil areas, or steep gullies.

[2] On one project s 36 notices were issued to about 20 or 30 landholders, and only one s 36 notice was issued on the other project. 

[3] The other community contact officers later in the project were Vince Bein until he resigned about late July 2012 and then Ross Thompson and David Hunter, who was also involved on other projects.    (See Exhibit 7 document 7.)

[4] See e.g. Rossmuller v Q-COMP (C/2009/36) - decision http://www.qirc.qld.gov.au, [2].

[5] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].

[6] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8]

[7] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].

[8] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8].

[9] Blackwood v Adams [2015] ICQ 001, [17].

[10] Blackwood v Adams [2015] ICQ 001, [19].

[11] The Ladbrooks, whose negotiations with Powerlink are summarised later in these reasons for decision.

[12] Powerlink's Legal Counsel.

[13] Addressed to Ms Gray, Mr Miller, Mr Baker, the Appellant and Mr Briggs.

[14] Guy Naish.

[15] Mr Baker could not recall that meeting and could not say with certainty whether or not he was there, but he suggested that he may not have been present.

[16] Mr McBride was Legal Counsel for Powerlink.

[17] One of the Legal Counsel at Powerlink.

[18] PAR is the preliminary alignment report, part of the initial desktop investigations in preparing a corridor selection report.

[19] Michael Brown was another project manager.

[20] Section 207 lists matters that the Minister must consider before designating land, including that adequate environmental assessment has been carried out.

[21] Peter Briggs, Bob Baker, Alison Gray, Terry Miller.

[22] Key Performance Indicators.

[23] York, Dickinson, Beissel, Howes and Lee.

[24] In the original planning, one option was to supply all six substations by their own lines back from the grid, which would have resulted in six lines running across the property. 

[25] As noted earlier, Mr Baker could not recall that meeting and could not say with certainty whether or not he was there, but he suggested that he may not have been present. 

[26] As noted earlier, the Appellant's concerns that he would not be able to meet his KPIs ("because the processes, standards, and policies they are built on get thrown out the instant pressure is applied") was misconceived.  His end of year review in July 2012 (Exhibit 10) clearly stated that projects were not tracking against the approved schedule because of decisions made by management outside the project team (e.g. process to resolve land owner issues), and the Appellant was recorded as meeting expectations because the delays were caused by actions outside his control.

[27] See reference to this restructure at [27].

[28] The Appellant submits that some of the Actions implied that he had to change certain unsatisfactory behaviours, but that these implications were false and a distortion of what had happened.

[29] Avis v WorkCover Queensland (2000) 165 QGIG 788; WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6. 

[30] Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324.

[31] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 484 (Mason CJ, Deane, Dawson and McHugh JJ)

[32] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 529 [27]. 

[33] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 532, [42]-[43].

[34] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

[35] WorkCover Queensland v Buchanan (2000) QGIG 124.

[36] Q-COMP v Riggs (2005) 179 QGIG 251. 

[37] Boyd v Q-COMP (2005) 180 QGIG 1129. 

[38] Misevski v Q-COMP C/2009/29, [30].

[39] See e.g. Q-COMP v Parsons (2007) 185 QGIG 1, 3 (Hall P).

[40] He also highlighted the related concepts or values of honesty and all stakeholders having equal importance.  As the Respondent points out in its written submissions in reply, this concern of the Appellant is curious if it means that he now accept the benefits of the agreement reached with the Ladbrooks so long as comparable benefits go to other landholders in similar circumstances, while same time contending that Powerlink's conduct in entering into the agreement was unethical and bordering on fraudulent activity.

[41] In particular an extra $1.5 million in the single case of the Ladbrooks.

[42] E.g., outcomes being determined during the EIS access negotiations before EIS work had taken place to please noisy landholders and at the expense of less noisy landholders, and certain stakeholders being given the opportunity to access a draft EIS prior to its public release to ascertain whether they would object to any content and potentially change at content.

[43] As the Respondent points out in its written submissions in reply, this concern is at odds with the submission seeking comparable treatment of landholders, and ignores the evidence (particularly that given by Mr Briggs) that those payments were being met within the terms of the contract.

[44] In particular the "Am I going crazy?" email dated 22 November 2012.

[45] Q-COMP v Queensland Rail, Decision C/2011/26 at [11].

[46] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).

[47] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).

[48] Sheridan v Q-COMP (2009) 191 QGIG 13, 16 (Hall P).

[49] Lackey v WorkCover Queensland (2000) 165 QGIG 22.

[50] Avis v WorkCover Queensland (2000) 165 QGIG 788, citing State Government Insurance Commission v Stephens Brothers Pty Ltd (1984) 154 CLR 552, 555 and 559; Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505.

[51] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 6-7.

[52] Avis v WorkCover Queensland (2000) 165 QGIG 788.

[53] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6 , 7.

[54] See Q-COMP v Hohn (2008) 187 QGIG 139, 144; Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.

[55] Davis v Blackwood [2014] ICQ 009, [51].

[56] See WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94 (Hall P); Mayo v Q-COMP (2004) 177 QGIG 667; Delaney v Q-COMP Review Unit (2005) 178 QGIG 197.  See also Re Yu and Comcare [2010] AATA 960.

[57] Bowers v WorkCover Queensland (2002) 170 QGIG 1, 2 (Hall P).

[58] Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301, 307 (Blades C).

[59] Misevski v Q-COMP, C/2009/29, 6 November 2009, [27]; Christine McHours v Q-COMP, C/2012/12 [10].

[60] Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001) 16.

[61] Prizeman v Q-COMP (2005) 18 QGIG 481.

[62] Svenson v Q-COMP (2006) 181 QGIG 629, 630 (Hall P).

[63] Versace v Braun (2005) 178 QGIG 315, 316 (Hall P); see also Alex Sabo v Q-COMP (C/2010/46) - Decision , [21]

[64] See Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.

[65] Davis v Blackwood [2014] ICQ 009, [47].

[66] See Q-COMP v Foote (No 2) (2008) 189 QGIG 802, 810. 

[67] Parker v Q-COMP (2007) 185 QGIG 269, 272 (Hall P)

[68] See Delaney v Q-COMP (2005) 178 QGIG 197, 198.

[69] Delaney v Q-COMP (2005) 178 QGIG 197, 198; Q-COMP v Whyte C/2009/32, [21]-[24].

Close

Editorial Notes

  • Published Case Name:

    Roberts v Workers' Compensation Regulator

  • Shortened Case Name:

    Roberts v Workers' Compensation Regulator

  • MNC:

    [2016] QIRC 30

  • Court:

    QIRC

  • Judge(s):

    Neate IC

  • Date:

    07 Mar 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Avis v WorkCover Queensland (2000) 165 QGIG 788
4 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Cite 3 - (2000) 165 QGIG 788
Cite 4 - (2000) 165 QGIG 788
Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324
2 citations
Jump To
Cite 1 - [2009] NSWCA 324
Cite 2 - [2009] NSWCA 324
Bowers v WorkCover Queensland (2002) 170 QGIG 1
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Boyd v Q-COMP (2005) 180 QGIG 1129
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 1129
Cite 2 - (2005) 180 QGIG 1129
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
4 citations
Jump To
Cite 1 - (2005) 178 QGIG 197
Cite 2 - (2005) 178 QGIG 197
Cite 3 - (2005) 178 QGIG 197
Cite 4 - (2005) 178 QGIG 197
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Davis v Blackwood [2014] ICQ 9
3 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
2 citations
Jump To
Cite 1 - (1987) 163 CLR 500
Cite 2 - (1987) 163 CLR 500
Hardy v Workers' Compensation Regulator [2015] ICQ 27
5 citations
Jump To
Cite 1 - [2015] ICQ 27
Cite 2 - [2015] ICQ 27
Cite 3 - [2015] ICQ 27
Cite 4 - [2015] ICQ 27
Cite 5 - [2015] ICQ 27
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
2 citations
Jump To
Cite 1 - (1992) 173 CLR 473
Cite 2 - (1992) 173 CLR 473
Lackey v WorkCover Queensland (2000) 165 QGIG 22
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 22
Cite 2 - (2000) 165 QGIG 22
Leigh Sheridan v Q-COMP (2009) 191 QGIG 13
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 13
Cite 2 - (2009) 191 QGIG 13
Mayo v Q-COMP (2004) 177 QGIG 667
2 citations
Jump To
Cite 1 - (2004) 177 QGIG 667
Cite 2 - (2004) 177 QGIG 667
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
3 citations
Jump To
Cite 1 - [2006] 1 Qd R 519
Cite 2 - [2006] 1 Qd R 519
Cite 3 - [2006] 1 Qd R 519
Parker v Q-Comp (2007) 185 QGIG 269
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 269
Cite 2 - (2007) 185 QGIG 269
Prizeman v Q-COMP (2005) 18 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 18 QGIG 481
Cite 2 - (2005) 18 QGIG 481
Q-COMP v Foote (2008) 189 QGIG 802
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 802
Cite 2 - (2008) 189 QGIG 802
Q-Comp v Hohn (2008) 187 QGIG 139
2 citations
Jump To
Cite 1 - (2008) 187 QGIG 139
Cite 2 - (2008) 187 QGIG 139
Q-COMP v Parsons [2007] 185 QGIG 1
2 citations
Jump To
Cite 1 - [2007] 185 QGIG 1
Cite 2 - [2007] 185 QGIG 1
Q-COMP v Riggs (2005) 179 QGIG 251
2 citations
Jump To
Cite 1 - (2005) 179 QGIG 251
Cite 2 - (2005) 179 QGIG 251
Q-COMP v Rowe (2009) 191 QGIG 67
3 citations
Jump To
Cite 1 - (2009) 191 QGIG 67
Cite 2 - (2009) 191 QGIG 67
Cite 3 - (2009) 191 QGIG 67
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
Re Yu and Comcare [2010] AATA 960
2 citations
Jump To
Cite 1 - [2010] AATA 960
Cite 2 - [2010] AATA 960
Rossmuller v Q-COMP [2010] ICQ 4
1 citation
Jump To
Cite 1 - [2010] ICQ 4
State Government Insurance Commission v Stevens Bros Pty Ltd (1984) 154 CLR 552
2 citations
Jump To
Cite 1 - (1984) 154 CLR 552
Cite 2 - (1984) 154 CLR 552
Svenson v Q-COMP (2006) 181 QGIG 629
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 629
Cite 2 - (2006) 181 QGIG 629
Versace v Braun (2005) 178 QGIG 315
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 315
Cite 2 - (2005) 178 QGIG 315
WorkCover Queensland v Buchanan (2000) QGIG 124
2 citations
Jump To
Cite 1 - (2000) QGIG 124
Cite 2 - (2000) QGIG 124
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6
4 citations
Jump To
Cite 1 - (2003) 172 QGIG 6
Cite 2 - (2003) 172 QGIG 6
Cite 3 - (2003) 172 QGIG 6
Cite 4 - (2003) 172 QGIG 6
WorkCover Queensland v Kehl (2002) 170 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93
Workers' Compensation Regulator v Adams [2015] ICQ 1
3 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1
Cite 3 - [2015] ICQ 1

Cases Citing

Case NameFull CitationFrequency
Neale v Workers' Compensation Regulator [2023] QIRC 92 citations
Yates v Workers' Compensation Regulator [2016] QIRC 682 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.