Industrial Relations Commission of New South Wales CITATION : Stonham v Speaker of the Legislative Assembly of NSW and Anor (No 5) [2003] NSWIRComm 30 APPLICANT Anne Margaret Stonham PARTIES : FIRST RESPONDENT The Speaker of the Legislative Assembly of New South Wales SECOND RESPONDENT Gabrielle Harrison FILE NUMBER: IRC649 of 1999 CORAM: Peterson J CATCHWORDS : Unfair contract - s106 - employment in electorate office of Member of Legislative Assembly of NSW - allegations of oppressive conduct by Member, said to have caused unfitness for work - excessive hours of work and unfair work demands - claims for compensation in respect of hours of work, rate of salary and stress and suffering - claims rejected. LEGISLATION CITED : Industrial Relations Act 1996 s106 Industrial Arbitration Act 1940 Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325 Stonham v Speaker of the Legislative Assembly of New South Wales (No 2) (1999) 90 IR 334 CASES CITED : Stonham v Speaker of the Legislative Assembly of New South Wales (No 3) (2000) 97 IR 325 Stonham v Speaker of the Legislative Assembly of New South Wales (No 4) (2001) 110 IR 417 Speaker of the Legislative Assembly of the Parliament of NSW and the Public Service Association of NSW, unreported 12 March 1992 - IRC91/1393. HEARING DATES: 09/02/2002; 09/03/2002; 09/04/2002; 09/05/2002; 09/06/2002; 09/09/2002; 09/10/2002; 09/11/2002; 09/12/2002; 09/13/2002; 09/16/2002; 09/17/2002; 09/18/2002; 09/19/2002; 09/20/2002; 10/09/2002; 10/11/2002 DATE OF JUDGMENT: 02/20/2003 APPLICANT Mr P Matters (agent) FIRST RESPONDENT Mr P Menzies QC with Ms T J Anderson of counsel SOLICITOR Ms J Rogers and Ms M Kelly Crown Solicitor's Office. LEGAL REPRESENTATIVES: SYDNEY. SECOND RESPONDENT Mr R J Weber SC with Mr B J A Shields of counsel SOLICITOR Mr C W Love Colin W Love & Co SYDNEY. JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 20 FEBRUARY 2003 Matter No. IRC649 of 1999 ANNE MARGARET STONHAM v THE SPEAKER OF THE LEGISLATIVE ASSEMBLY OF NEW SOUTH WALES AND ANOR. Application under s106 of the Industrial Relations Act 1996. JUDGMENT 1 The applicant, Anne Margaret Stonham, was formerly employed as an Electorate Officer in the electorate office of the Member of the Legislative Assembly for Parramatta, Ms Gabrielle Harrison, from September 1994 until November 1997, when she was unable to continue due to ill health. Mrs Stonham has brought a claim against the Speaker of the Legislative Assembly ('the Speaker') and Ms Harrison under s106 of the Industrial Relations Act 1996 ('the Act'). 2 This case bears the hallmarks of a litigious tragedy. The evidence has employee against employer, former friends against former friends, sister against sister, husband in some respects contra wife, and, in the applicant's case, sought to show the political milieu in which the employment operated as one with a distasteful side that oppressed her to serious disadvantage. This case has, in the end, not been made out. Serious allegations made against Ms Harrison I have found to have no basis in fact. 3 The matter has occupied a substantial body of hearing time and for the respondents, the expense of defending the case utilising the services, in my judgment necessarily and wisely, of solicitors and junior and senior counsel. The matter in its various stages has come before the Commission on 69 occasions; it has involved one interlocutory appeal to the Full Bench and a separate application made by motion by the Australian Broadcasting Commission for access to the documents filed in the matter, which motion was rejected by judgment delivered on 15 July 1999 (1999) 90 IR 325. So far as the merits of the s106 summons are concerned, there were 22 hearing days, five before Hungerford J and 17 before myself. As will be seen from the conclusions to which I have come, this time has been spent in the pursuit of remedies which have not been achievable, the applicant having failed to establish, both in terms of credibility and on the balance of probabilities, the factual matters necessary to lend support to her claims. 4 In January 1999 the applicant commenced the proceedings against only the Speaker, by summons for relief which made serious allegations of a scandalous kind against Ms Harrison. The matter was allocated to me for the purposes of a motion brought by Ms Harrison for orders preventing the publication or dissemination of information about the proceedings. A suppression, or non-publication, order was granted, the three main clauses of which were consented to by the applicant through her counsel (despite her later protestations to the contrary), the fourth (concerned with the identification of any persons to whom the initiating documents had been provided) being imposed over the applicant's objection, in view of the potential for unjustified and irreparable damage to Ms Harrison's reputation in the weeks preceding the State election in March 1999. The proceedings were subsequently dealt with by Hungerford J who, while expressing some doubt about the appropriateness of the suppression orders, maintained them. A Full Bench of the Commission later overturned those orders as having not been made in accordance with the relevant principles (See Stonham v Speaker of the Legislative Assembly of New South Wales (No 2) (1999) 90 IR 334). 5 The applicant then filed an amended summons in less colourful form and then a further amended summons. 6 On 5 May 2000 Hungerford J (see (2000) 97 IR 325) determined a motion by the Speaker seeking the striking out of the further amended summons on jurisdictional grounds. His Honour left for determination in the substantive hearing the question whether the applicant's claim for compensation for stress and suffering in the course of her employment and for the impairment of employment prospects and reduction in quality of life was justified. As to the claim for increased remuneration and overtime payments which may be in excess of those provided by the industrial instrument (enterprise agreement or award, respectively) covering the work, Hungerford J made a positive finding of jurisdiction. 7 Subsequently, in proceedings before his Honour, the further amended summons for relief was substituted by a further summons in even more appropriate form. The affidavit material in support of the summons, however, was the subject of objection and a considerable degree of material, including scandalous material, was disallowed upon objection. 8 The matter was listed for substantive hearing over a period of three weeks commencing on 3 September 2001 and continued for four days until, on 10 September 2001, the applicant made an application for leave to move the court for an order that Ms Harrison be added as a respondent. Leave being granted by Hungerford J to that effect, the proceedings then were required to be adjourned. Subsequently, Hungerford J granted a motion by the applicant to join Ms Harrison as a second respondent. A judgment on that motion was given on 5 November 2001 (2001) 110 IR 417. 9 On 19 September 2001 an amended summons (effectively the fourth summons for relief) was filed and this became the summons upon which the substantive proceedings continued. Those proceedings commenced before me on 2 September 2002. In preparation for the hearing Mr Matters, appearing as agent for Mrs Stonham, had supplied a list of affidavits upon which he proposed to rely. The matter was dealt with as a new matter, bearing in mind the addition of Ms Harrison to the proceedings and the relatively unsatisfactory state of the evidence which had been admitted before her addition as a respondent. 10 The claims now pressed against the respondents are as follows: 1. An order declaring void in whole or in part either from its commencement [or] from some other time the contracts of employment between the applicant and the respondents whereby the applicant performed work in the industry. 2. Further, in the alternative, an order declaring void in whole or in part, or varying, either from their commencement or from some other time, those parts of the contracts of employment between the applicant and the respondents, or arrangements between the applicant and the respondents, whereby the respondents paid monies to the applicant upon the termination of the applicant's employment. 3. An order that the contracts between the applicant and the respondents were, or became in their performance, unfair, harsh, unconscionable and contrary to the public interest. 4. Further, an order that part, or those parts of the contracts of employment between the applicant and the respondents which relate to payment for overtime were unfair, harsh and unconscionable and contrary to the public interest. 5. Further, an order that the contracts of employment between the applicant and the respondent be varied, as and from 12 September 1994, by deleting so much of the contract that relates to payment for overtime and inserting the following: "The employee shall be paid overtime for any hours worked in any week in excess of those specified in the memorandum to the Speaker setting out her "Hours of duty", as those hours were specified to be from time to time. The employee shall be paid at 1.5 times the base hourly rate for the first ten (10) hours in excess of those hours and at twice the base hourly rate for any overtime worked thereafter." "The base hourly rate shall be calculated in accordance with the following formulae: A = The applicant's annual salary for a full-time employee (or, where the annual salary is varied by order of the Commission, the salary as varied) - A x 7 365x35 6. Further, an order that the contract of employment between the applicant and the respondents be varied, as and from 12 September 1994, by deleting so much of the contract that relates to the salary to be paid to the applicant by the respondent and inserting the following: "The employee shall be paid an annual salary equivalent to three-quarters of that earned by a Member of the Legislative Assembly of New South Wales." 7. An order that a clause be inserted in the contract as follows: "Upon termination of employment for a reason not involving misconduct or incompetence, the employer shall provide to the employee a reference stating the period for which the employee was employed by the employer, the nature of the duties performed by the employee, and that the employee was a competent and conscientious employee." 8. Further, an order that the contract of employment between the applicant and respondents, in respect of which the applicant was employed from 12 September 1994 to 12 April 1995, be varied so that the applicant be paid as a full-time employee. 9. An order that the respondents pay to the applicant such amount of money in connection with contracts of employment so voided or varied as may appear just in the circumstances. 10. An order that the respondents pay to the applicant interest upon such amount of money as is ordered to be paid to the applicant in connection with the contracts of employment or the arrangements or collateral arrangements at such rates and from such time as this Honourable Commission considers appropriate. 11. An order that the respondents pay the applicant's costs of these proceedings. 12. Such further or other orders as this Honourable Commission may consider appropriate. 11 Section 106 of the Act empowers the Commission in Court Session to make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in an industry if the Commission finds the contract is an unfair contract. Section 105 defines "contract" to mean "any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument". 12 The position of Electorate Officer formerly occupied by the applicant is covered by an Award, the Crown Employees (Parliamentary Electorate Officers) Award (301 IG 626) ('the 1997 Award'), which came into effect on 25 February 1997. It replaced the Parliamentary Electorate Officers Enterprise Agreement which had been made on 11 May 1994 ('the 1994 Enterprise Agreement') which had in turn replaced a 1992 Enterprise Agreement ('the 1992 Enterprise Agreement'). The parties to those agreements were the Speaker and the Public Service Association of New South Wales. 13 Mrs Stonham's employment was the subject of the 1994 Enterprise Agreement and the 1997 Award. The 1994 Enterprise Agreement provided and the 1997 Award provides the following effect (this clause being extracted from the enterprise agreement): The remuneration prescribed in this Agreement includes payment for all incidents of work including overtime. Work will not be conducted on weekends or public holidays without reasonable prior consultation with the employee or the Public Service Association of NSW. 14 That provision repeated clause 12, Overtime, of the 1992 Enterprise Agreement which had been the subject of approval by Bauer J in proceedings in which two major employer groups had intervened to express concern over the levels of increases involved in the salary rates (unreported, 12 March 1992 - IRC91/1393). In support of the Agreement, evidence was called by the Public Service Association from electorate staff in the offices of Mr Wal Murray, MLA; Mr Colin Markham, MLA; and also Mr Michael Photios, MLA. The affidavit of Ms Toni Hunt, the Electorate Secretary for Mr Murray, summarised her duties in the following way: · Process all mail directed to the Member for Barwon, preparing appropriate correspondence replies and submissions to the relevant Minister or authority. This preparation involves research into office files and reference to Departments and Ministries. · Organise and administer electorate office, including liaison with Government Cleaning Service personnel in relation to the duties of cleaners. Ensure operation and repair of all office equipment. Supervise office renovations. · Check and pay all accounts associated with the Member's office and electorate duties. Prepare and submit claims for reimbursement of expenses associated with Member's travel by air and air charter. · Make all necessary travel arrangements for Member to attend functions or meetings in the electorate, where necessary liaising with Departments, Councils, Ministries or local organisations. Obtain and provide to Member any background information necessary. Arrangements are frequently subject to alteration at short notice because of Parliamentary and Ministerial commitments. · Co-ordinate and assist in the organisation of Ministerial visits to the electorate, liaising with Ministries and media. · Prepare and distribute media statements either at the request of the Member or in relation to matters informed to him in which he has interest. This involves close liaison with the media in order to meet publication deadlines and gain maximum value. · Obtain information and prepare briefings in respect to Government appointments to statutory bodies references to the Member, and also in respect to references on Crown Land assessments and grants by government departments to organisations within the electorate. · In the absence of the Member, conduct interviews with constituents who either call in person or by telephone seeking assistance or lodging complaints. Obtain information from Ministries and Departments in connection with such enquiries. · Frequently as a result, prepare submissions on behalf of constituents in order to have their problems redressed. Matters cover a wide range, and include education, community support and service programs and organisations, health, and public housing, consumer complaints, rail and roads, transport, local government, police, the environment, land title, water rights, problems associated with regulation and assistance to agricultural operations, as well as areas such as Telecom, Australia Post, Social Security and Pensions which are in fact Commonwealth responsibilities. Follow up such matters by personal and telephoned enquiry and advise constituents. It should be noted that the general public is generally unaware of the distinction between State and Federal responsibilities and it is not sufficient just to refer people to a Federal Member's office which may be hundreds of miles distant when local enquiry may lead to resolution of the problem. · Monitor local and regional media for responses to initiatives, and details of matters of contention, in order to keep the Member informed. Assess local current affairs and advise the Member (in his absence) of any matter on which he needs to be informed. · Deputise for the Member in conducting scheduled constituent interviews in various parts of the electorate, in attending meetings and at all times being available to constituents. This involves being prepared to accept approaches by telephone at home, and in person wherever I happen to be outside office hours. Prepare relevant briefing notes. · (In the Member's absence) meet with and have discussions with Departmental officers visiting the area, and acquaint them with local problems. · Liaise with Member's Ministerial Office to ensure that all electorate matters received proper attention, and that Member's program and Ministerial program are compatible. Publicise Member's program within the electorate. · Use my own car when required about town to pick up Courier Mail and to pick up and deliver electorate mail to Member's home for attention over weekends. · Be available to the Member when required to fit in with his schedule, outside office hours. It should be noted that as the Member is Deputy Premier and has two Ministerial portfolios, and has his home a considerable distance from Sydney, that demands on his time for Ministerial duties and travelling severely erode his capacity to be physically within the electorate. As a general rule personal visits to the electorate office would not be more than about a half-day once every month or so. However, contact is maintained through other means. 15 The summary of work for the other two witnesses was consistent with that of Ms Hunt. 16 An affidavit of Wayne Alan Milford, the Clerk-Assistant (Administrative) for the Legislative Assembly of New South Wales was also tendered in the proceedings before Bauer J. Mr Milford's affidavit deposed to a review of salaries and conditions in which he participated which involved visiting 11 electorate offices nominated by Party Whips and also two Commonwealth electorate offices. His affidavit continued: The programme of inspections confirmed to me that Electorate Secretaries and, to a lesser extent, Assistant Electorate Secretaries now: · counsel constituents on a wide range of matters such as the provision of public housing, education, traffic matters, community support & service programmes; · compose correspondence to constituents, Ministers, departmental staff and local Councils relating to the above matters; · regularly work outside their normal working hours through early starts, working through lunch hours, finishing late and weekend work as the level of demand for their services fluctuates. This is particularly true of staff who work for Ministers, Shadow Ministers, Office Holders and country Members who are absent from their electorates for long periods of time. · cope with periodic excessive workloads particularly when the House is sitting, at times when there is a contentious issue on the agenda or in times of natural disaster such as the Nyngan floods and recent flooding in Sydney. · carry out screening interviews as the demands on Members' time prevent them from being able to meet the demands of all their constituents. Electorate staff are required to determine which constituents have priority access to the Member. · are surrogate Members in that they deputise for the Member, both in terms of interviewing constituents, preparing briefing notes and correspondence and attending functions on behalf of the Member. · do not generally become involved in party political work except of a very minor nature and have a high degree of loyalty to the Member. 17 Bauer J found that the proposed enterprise agreement did not comply with the Commission's Wage Fixing Principles in that the increases in salary levels exceeded those pursuant to the State Wage Case 1991. Section 13I of the then Industrial Arbitration Act 1940 provided that an agreement failing to comply with the Commission's Wage Fixing Principles may be approved as being not contrary to the public interest if the Commission is satisfied that it will improve the productivity and efficiency of the enterprise to an appropriate extent. In the course of giving approval to the agreement Bauer J said: One further consideration is that the group of officers to which this application applies and to which the agreement is related is a confined group carrying out specialised duties for members of Parliament and having a specific and particular relationship with those members . . . Indeed it might be said that these officers are a unique group having a special set of obligations and that their rights and privileges of employment would best be regulated by an agreement. 18 It will be seen from the claims made by the applicant that they embrace two aspects which conflict with the Enterprise Agreement and Award. They are the claim for a salary fixed at the level of 75 percent of remuneration for a Member of the Legislative Assembly (a claim which would afford a substantial increase to the applicant) and for additional compensation by way of payment for "overtime". The Applicant's Credibility 19 Before dealing with the detailed allegations in the applicant's evidence I make the general observation that during the course of her evidence I became satisfied, save in one respect in relation to some evidence she gave but later, after the short adjournment, she retracted, that Mrs Stonham was giving evidence she actually believed to be truthful. She proved to be an intelligent, articulate witness yet seemingly the allegations she made, as senior counsel for Ms Harrison opened in his address, ranged from the absurd to serious misconduct and fraud. It was submitted that the allegations were glaringly improbable and malicious. I accept readily the glaring improbability of many of the allegations raised by the applicant but I do not accept the applicant to have been motivated by malice. I concede that it is difficult in some respects not to view the allegations made as malicious. One example is the allegation made against an officer of the Department of Housing. However malicious such allegations might appear, I did not view the applicant as so motivated. Rather, I find the applicant's recollection of events to have been so flawed by a combination of depressive illness, drug abuse and excessive alcohol intake, as to be totally unreliable. For example, apart from her regular drinking and drug intake, during the course of her employment the applicant had periods where she would drink to excess, up to a bottle of whisky in a day. These binges were not confined to periods of leisure and included periods when she was working. At these times she would ingest also up to ten Valium tablets, plus other drugs, a day. 20 Four psychiatrists gave evidence in the proceedings. Three of them formed the opinion that the difficulties the applicant was experiencing were causally connected to the stress imposed upon her in the workplace and in her private life, essentially by excessive demands and requirements of Ms Harrison. Those difficulties included illness, whether described as depressive illness, anxiety disorder or personality disorder and alcohol and drug abuse. In the cross-examination of each of those witnesses it was demonstrated that the history provided to them by Mrs Stonham was inadequate, in that it did not refer fully to her family history and to her prior drinking habits. 21 A major difficulty arising from the evidence of the psychiatrists is their formation of an expert opinion based upon the history which is provided to them. That history is not subjected to any testing and is accepted without regard for any contrary view which may be expressed by a person involved in any allegations made by the patient. An illustration of the risk in this approach, from the point of view of later proceedings, arises in the evidence of Dr Edwards, who was called in the applicant's case. He accepted that the ability of a person to accurately recollect events would be severely affected by the condition of depression and also alcohol and drug abuse; there would be muddled thinking and memory loss and it would be inconceivable that a person ingesting alcohol and drugs at the maximum level of intake of the applicant would have a clear recollection of events. While one can readily understand the need for medical advisers to take that approach in the interest of the patient, this case is an illustration of the danger which can arise from too ready an acceptance of the view of only one person in a series of events involving many persons. The Psychiatric Evidence 22 Dr G A Edwards was a consulting psychiatrist to whom Mrs Stonham was referred. Dr Edwards first interviewed Mrs Stonham on 4 November 1997. In June 1998 Dr Edwards reported to solicitors for Mrs Stonham on his experience to that date with her. He recorded her history as including increasing stresses in the work environment and her having begun to take Valium excessively as well as Panadeine and Panalgesic to cope and Normison of a night for sleep. She was using Valium in the vicinity of ten tablets a day and using alcohol heavily, up to one bottle of whisky a day at times. She felt trapped in a very stressful work situation. 23 Dr Edwards described her condition as: I have regarded her as having an Adjustment Disorder with at least a moderately severe anxiety and depression, complicated by alcohol, Valium and analgesic dependence. I believe the cause of the symptoms are essentially related to a number of extreme difficulties in the work situation. Also with the passage of time Mrs Stonham mentioned issues concerning improper practises related to the office which have been forwarded to the ICAC and are the subject of separate investigation. I felt the clinical syndrome was complicated by this significant Valium, alcohol and analgesic dependence. This was related to her difficulty in coping with the complex and major pressures in the office work situation over the previous twelve month period. 24 As to her prognosis he said: I do not see her ever being able to return to work in a political environment because of the nature of the stresses and various abuses I suspect she has been subject to. She was medically retired (sic - on) psychiatric grounds on 16.11.98 by Dr. Thompson from HealthQuest with Adjustment Disorder with Depression and Anxiety and they thought it would be permanent. In the longer term future it may be possible for her to be able to work perhaps part-time in an unrelated area involving clerical, secretarial or administrative skills but this could only be determined in the longer passage of time. 25 On 9 February 1999 Dr Edwards again provided a report to the solicitors acting for Mrs Stonham which referred to a significant improvement in her substance dependence. After detailing the current circumstances Dr Edwards concluded: To emphasise as contained in the body of my report, the illness, essentially over approximately a 14 month period, is a reaction to the failure of the employer's proper obligation and the various instances in the work situation that have been by far the major contributing factor to her clinical presentation. 26 I mention that in setting out Mrs Stonham's history and referring to an earlier broken marriage in which there were related issues of domestic violence, Dr Edwards said: ". . . there is nothing else remarkable and this does not appear to have any significant relationship to the present situation. There was only some brief Valium use and no alcohol at one stage during that earlier marriage breakdown but nothing subsequently." This observation assumed some significance in the cross-examination of Dr Edwards. 27 Mr Menzies cross-examined Dr Edwards about his forming an opinion concerning the causes of Mrs Stonham's difficulty by reference to the history she herself supplied. He had concluded that the causation of the alcohol abuse, the drug abuse and the depression were all related to her work problems and to nothing else. 28 Dr Edwards formed the opinion in August 1999 that Mrs Stonham was enormously improved and that she had discontinued her heavy reliance on alcohol. He was still concerned that in his discussions with her she talked solely about the employment situation. However, on 22 June 1999, Mrs Stonham had sworn an affidavit which included the following: Since I left the employment of the respondent I have had regular counselling and I now hardly drink at all except for occasional binge drinking which occurs about once a fortnight for two to three days. I no longer take Diazepam, I do however take panalgesics when I binge drink. I only take pain killers occasionally when doing that to alleviate pain. 29 Other matters in her history including her consumption of alcohol and ingestion of drugs prior to commencing to work for Ms Harrison were not facts supplied by Mrs Stonham to Dr Edwards. Accordingly, his assessment of her, he accepted, would need to have taken into account those different features in respect of the question of causation. 30 Dr Edwards gave the following evidence concerning the effects of the ingestion of alcohol and drugs: Q. It is true, isn't it, not just in lay terms, but in medical terms that alcohol has a more profound effect on a smaller person than a larger frame of person; you agree with that? A. Yes. Q. And so, when one takes into account Ms Stonham's physical size, a bottle of whisky a day would be having a profound effect on her, wouldn't it? A. Yes, very much so. Q. What would you describe the effect of a bottle of scotch a day on a person such as Ms Stonham to be in the way that they would go about their daily affairs? A. A bottle of whisky a day, the observation that I have made on the day I first saw her, she would have been comatose or very sedate. Q. It probably would lead to the person, Ms Stonham, by ingesting a bottle of scotch a day, ending up comatose, wouldn't it? A. Mmm, yep. Q. And would inevitably lead to grave difficulties in decision making? A. Yes. Q. And grave difficulties in remembering what happened on that day or subsequent occasions? A. Yes, yes, yep. Q. That would be inevitable? A. Yes. Q. They would almost certainly be characterised by complete backouts (sic - blackouts); you agree with that? A. Yes. Q. The sort of 'How did I get home last night?' problem? A. Yes, yes, that's right. . . . . Q. And it would be simply inconceivable, wouldn't it, that a person with Ms Stonham's level of depression and that level of alcohol ingestion would have a clear recollection of what was happening around her subsequently; do you agree with that? A. Certainly during that time with a bottle of whisky a day, around that time. Q. And then we have to, in addition, to understand the situation that Ms Stonham found herself in when she first saw you, superadd the ingestion of up to 10 Valium tablets a day. Now could you just isolate what effect 10 Valium a day would have on Ms Stonham -- A. An additive, a sedative effect. Q. If you could just let me finish. Isolate out - leave to one side the effects of depression; leave to one side the effects of heavy alcohol ingestion. What on its own would the effect of the ingestion of 10 Valium a day have on Ms Stonham's thought processes? A. Very, very sedated. Q. Very sedated. And would that in turn make worse the mumbled thinking effects -- A. Oh, yes. Q. -- of depression? A. Yeah. Q. And would it in turn have a deleterious effect on her capacity to remember what might have occurred? A. Yes, yes. Q. And would it have a deleterious effect on her capacity to make decisions as to what's causing her problem at any given time? A. Yes, certainly during that period of time. 31 Dr Jean Lennane, a psychiatrist, also treated Mrs Stonham following the retirement from practice of Dr Edwards. Dr Lennane prepared two reports dated 29 May 2000 and 29 January 2002, which were placed in evidence and also gave oral evidence in the proceedings. She first saw Mrs Stonham on 8 February 2000 after an earlier telephone conversation in which Dr Lennane advised her to admit herself to St Edmunds Private Hospital for detoxification from the alcohol, codeine, and benzodiazepines on which she had become dependent. Mrs Stonham was admitted to that hospital on 21 January and was still an inpatient there on 8 February, although left prior to a subsequent visit with Dr Lennane on 17 February 2000. She was subsequently readmitted for a couple of days because of intense anxiety but had not had to return. She had remained abstinent from the alcohol and the identified drugs. 32 In the report of 29 May 2000 Dr Lennane referred to Mrs Stonham still having considerable difficulty in ordering her thoughts and giving her a concise and logical history of events, although those problems had improved over the time she had been seeing Mrs Stonham. The report dated 29 May 2000 sets out a convenient summary of much of the complaint which Mrs Stonham has made in the present proceedings. It is this history which has been relied upon by each of the psychiatrists consulted by Mrs Stonham for the purposes of their conclusions about her condition and its cause. It is convenient that I set out Dr Lennane's summary which in relatively brief form recites events which have not been established in the evidence and yet which Mrs Stonham was then and, presumably now, is convinced to be the facts. The excerpt is: Ms Stonham gave a history of increasing problems and pressures in the workplace over the time she was there, owing to acts of omission and commission by her employer, Ms Harrison. Ms Harrison exerted considerable influence over Ms Stonham, who continued to try to please her, and as time went on, to avoid the fate of what seems to have been a considerable number of staff she saw being serially victimised, humiliated and sacked or forced to resign. Ms Harrison allegedly wore a locket around her neck in which she said she kept the name of her next target. Ms Stonham never became a target herself, but was fearful of the consequences if she refused any of Ms Harrison's requests. The requests were constant, involving extra hours of unpaid work, usually of the order of 20 hours more a week at the office, including weekends; and from 1995, requests to keep Ms Harrison company at her home, or sometimes at Parliament House in the evenings, continuing into the early hours of the morning, finishing as late as 2am. Ms Stonham was expected to drink vodka with Ms Harrison on these occasions and Ms Harrison being a heavy drinker (sometimes drunk to the extent of having to be put to bed/taken home), Ms Stonham felt under pressure to drink heavily also. A particularly traumatic and distressing request was made in 1995 for Ms Stonham to run as a candidate (Labor) in the Local Government elections. Ms Stonham had never had any political ambitions and although a member of the Labor Party for two years, had little or no understanding of party politics. She was reluctant and anxious about acceding to Ms Harrison's request, but under intense pressure from her employer eventually did so. She discovered too late that her candidacy was part of a complex power-play to get rid of the current (also Labor) Mayor, a person she had no wish or intention to injure and that by standing she had lost the respect and friendship of many people in the municipality. This loss still causes her great anxiety and pain. Another major problem for Ms Stonham was Ms Harrison's refusal to fulfil some of the basic requirements of her position as MP, in particular her being almost never available to meet her constituents, including influential Party members and going to considerable lengths to avoid them. Ms Stonham was constantly left to face angry constituents, including on occasion, people with obvious psychiatric illness, who she feared might become violent. An added anxiety was the complete lack of security in the office or any means of containing such an incident. Ms Harrison also expected Ms Stonham to be involved in organising fund-raising events with various groups, usually at Parliament House. Ms Stonham was always very anxious in the lead up to these functions, as she feared Ms Harrison might not appear there either, or put in such a brief appearance, that it would offend the guests. She also had great anxiety about the considerable amount of money raised at such functions, much of it in cash, which seemed not to be properly or systemically accounted for. Because of her intense anxiety over these matters and lack of free time in which to unwind, Ms Stonham's alcohol consumption increased from 1995 onwards, with the addition of painkillers for frequent tension headaches and benzodiazepines, as alcohol alone was no longer providing relief. She asked Ms Harrison for time off, as she was increasingly concerned about her state of health (as was her husband), but this was not granted until late in 1997. She went to a health farm out of Sydney, but felt unable to relax there as Ms Harrison had sent another staff member there with her, who she felt was under Ms Harrison's influence. Ms Stonham soon afterwards had to leave work because of increasingly severe symptoms. After she stopped work, Ms Stonham had a number of visits and other contacts from various Party officials. She found these visits extremely intimidating, as there were inferences about information on Ms Harrison and other prominent people, which Ms Stonham had been privy to in the course of her employment and which could cause political and other problems if it became public. Her anxiety about these contacts was intensified by remarks by her then legal advisors, among others, to the effect that her life could be in danger as a result of her knowledge. These fears were further intensified by a suppression order being put on all the material in the Industrial case she had lodged in the Industrial Court, by a process she found difficult to understand. The order was lifted in July last year, 4 months after the State election. As a result of the contacts, concerns relayed to her and the (as far as I know, unprecedented) suppression order, Ms Stonham became extremely anxious about her personal safety and that of her family. She felt she was being watched, feared her phone was tapped, and became increasingly fearful of leaving the house. 33 It will be seen in the last paragraph of that summary that Mrs Stonham was expressing concerns to Dr Lennane about the suppression order which had been made by this court shortly after the proceedings were commenced. I interpolate that Mrs Stonham denied in cross-examination by Mr Weber (T.331) that she wanted the scandalous material in the affidavit in the public domain prior to the election. It is to be noted that Dr Lennane's summary links the lifting of the suppression order in July 1999 to the State election having occurred. Despite all this, it must be remembered that the relevantly operative parts of the suppression order initially made in the court were made with the consent of Mrs Stonham, as expressed by her counsel. 34 Dr Lennane referred to Mrs Stonham's condition as follows: Ms Stonham's condition when I first saw her was similar to that described by Drs Edwards and Phillips, although having at that stage withdrawn from the alcohol and other drugs, her concentration and attention were somewhat better. She was however still very scattered in her thinking. She was highly anxious, tense and hyper-vigilant, with a number of specific fears, including going out and using the telephone. She appeared depressed, wept easily and reported her appetite as poor. She had difficulty sleeping and was fearful at night of people coming to attack her. She had no libido and had lost interest and pleasure in life. She was fearful and avoidant of contact with people, in contrast to her pre-morbid sociable personality and felt intense guilt and shame at being in such a dependent and helpless state, and having as she saw it, let down and endangered her family. She was in my opinion, suffering from a Major Depression, with elements of Post-Traumatic Stress Disorder . . . Ms Stonham's illness - depression, phobic anxiety and Post Traumatic Stress Disorder - has been and is still severe. It was compounded by extensive alcohol and benzodiazapine abuse . . . . In my opinion, her employment was a substantial contributing factor both to her illness and to her substance abuse. Her employment had a number of very irregular features, as outlined above, causing Ms Stonham intense anxiety and distress over a period of 3 years, with no opportunity for periods of relief from the demands of the situation over that time. Major depression commonly develops in such circumstances. Her phobic anxiety and PTSD are also related to the peculiar features of her employment and her fears for her personal safety, which additionally were fuelled by others and also by the suppression order. Her substance abuse developed partly as self-medication for her increasing anxiety and partly as a result of pressure from Ms Harrison to drink with her in situations where it appeared such drinking formed part of her duties. 35 It can be seen from this report that the conclusions of Dr Lennane were, as were Dr Edwards, entirely dependent upon her acceptance of the history as provided by Mrs Stonham. 36 In her subsequent report of 29 January 2002 it refers to the reactivation of Mrs Stonham's "post-traumatic stress disorder" by the engagement in the legal process. It continued: During times of intense legal stress, Ms Stonham is still severely incapacitated by her depression, phobic anxiety and PTSD; at other times, when able to try to live a more normal life for a few weeks without such interruptions, she is able to function very much better than when I first saw her. In particular, she has no symptoms or signs suggestive of permanent brain damage: her ongoing and fluctuating problems with concentration and memory being more typical of anxiety and depression. When not stressed, she is now able to get involved in volunteer work for her local church and is no longer afraid to leave the house or answer the phone. Once the legal situation is resolved, I would expect her to make steady progress over the next 3-5 years and return to her pre-morbid level of functioning. 37 In cross-examination Dr Lennane explained that she had advised admission to St Edmunds Private Hospital because of the degree of problem with alcohol and other drugs. Detoxification in the case of benzodiazepine is much safer and faster as an inpatient because of the dangers in withdrawal, particularly major epileptic seizures and psychotic events. In the early stages, she was "still quite severely muddled and disordered in her thinking and with a lot of problems was (sic - with) memory which is quite usual during the first two to three months withdrawal from that type of drug". 38 Dr Lennane was questioned in evidence in chief about her recording of the history as including the exertion of considerable influence by Ms Harrison over Mrs Stonham. The question was put: Q. . . . Can you explain or describe first of all was there a psychological mechanism at play in this issue of the considerable influence being exerted over Mrs Stonham? A. No doubt there were a number, including the normal degree of influence that an important employer would have over most employees but Mrs Stonham does have, in my view, a degree of what is loosely called co-dependency in her relationships which arises largely from her relationship with her mother in childhood, her mother having had a lot of nervous illness and requiring care and attention to a degree that often produces in children a sort of over responsible attitude, over-caring that they feel they have a duty, it is their responsibility to make sure that things go right. Q. Can I stop you there a minute; you used the term co-dependency and I may not have got this right, I think you may have said co-dependency personality - I withdraw that. Co-dependency, can you explain in terms of psychiatric diagnosis or theory what is meant by it? A. It doesn't occur in DSM-IV. Q. You won't find it there? A. No but it is well recognised in the feminist literature, literature on battered wives and also very much the drug dependency literature because very often it appears in people with those particular problems and that's the attitude of extreme feelings of responsibility for solving not only their own problems but other people's problems and that appears to have been an issue with Miss Harrison from what Mrs Stonham had some problems. . . . Q. In terms of Mrs Stonham's co-dependent pattern, if I can put it that way, of behaviour, is it something like a permanent part of personality in terms of this? A. It is a personality trait that starts in childhood, as I said, from the kind of forced adoption of responsibilities that occurs in many families where there is a parent who's ill or drug dependent or alcoholic or whatever. So it then persists for life but it can be altered with therapy. 39 In cross-examination Dr Lennane was asked about her utilisation of the term "post traumatic stress disorder" ('PTSD') particularly after having introduced that term in the context of Mrs Stonham having some, but not all, elements of PTSD as described in the psychiatric manual, DSM-IV. In an exchange with Mr Menzies, Dr Lennane asserted that while the symptoms do not match all of those described in DSM-IV, nevertheless, in Dr Lennane's opinion she had a type of PTSD. 40 As to the ability to recall events occurring during periods of heavy consumption of alcohol she was asked: Q. Let's take an example; somebody is drunk and they are at a meeting with a number of other people, and their memory because of their drunken state or their recovering state is patchy; it would be foolhardy to accept an account give (sic - given) by such a person of the events at such a meeting wouldn't it because you would not know which bits have been forgotten, which bits have been left out? A. Yes but really people who are not intoxicated are also not one hundred percent reliable in such circumstances, as you are fully aware. Q. Memory is frail? A. Memory is frail. Q. And selective? A. Yes and selective and it is affected by attitude and interests and emotion. Q. All of those things and that perfectly normal ordinary human event or human approach to recollection is further compromised if the person's brain function is affected by the heavy ingestion of alcohol or drugs? A. Yes it would be. 41 On the concept of co-dependency raised in her evidence she was asked: Q. You were asked some questions by Mr Matters about the concept of co-dependency and you have told us it is a well known phenomenon and it is a personality trait, is that right? A. Yes or a pattern of behaviour. Q. You told Mr Matters that was something which could be affected by treatment? A. Yes. Q. It is fair to say though isn't it that a trait of that kind like most personality traits are particularly resistant to change? A. Well, that one in particular is actually reasonably responsive to change presumably because it is not actually innate; it is not something you are born with; it is more environment shaped so environment can unshape it. Q. In any event whatever the phenomenon was caused by, it was there when she commenced employment? A. It would have been, yes. 42 As to the possibility that Mrs Stonham might have been an active participant in the events which she has described, Dr Lennane was asked: Q. Let's assume the picture is not of someone unwillingly dragged into events about which she has no interest or knowledge but a picture of somebody who's actively taking part in all of these events because that is what she wants to do; first of all that is a picture that is inconsistent with the one given? A. It is inconsistent with the one I was, I have been given and it is very inconsistent with my own observations of her personality. . . . Q. What I am putting to you, I have given you that as an example but if instead of a picture of somebody being forced into something they did not want to be involved in one has had a general picture of somebody actively --? A. A politician. Q. A politician? A. Yes indeed; I would have to rethink. Q. And you would then be driven to this conclusion wouldn't you; that whatever was the cause of her subsequent problems it wasn't because she had been forced into something she didn't want to be involved in or that it was because she was being in some way abused by the person effectively supervising her? A. Hm. Q. Is that right? A. Yeah. 43 Dr Jonathon Phillips, a consultant psychiatrist, assessed Mrs Stonham on three occasions in 1999, 2000 and 2002. The first assessment, the subject of a report to solicitors for Mrs Stonham, related to an assessment on 18 June 1999. Her history, as described to Dr Phillips, was largely consistent with what she had provided to Dr Edwards and Dr Lennane. 44 Dr Phillips expressed this opinion in 1999: There seems little doubt that Ms Stonham developed a major depressive disorder DSMIV 296.22 (single episode, chronic type, moderate intensity, non-psychotic) at least by 1995, in the context of considerable work stress. She experienced symptoms of pervasive despondency and anxiety and increasing irritation, she felt considerable frustration, she developed headache, chest pain and generalized muscle pain and she experienced insomnia, particularly noting difficulties getting to sleep and nocturnal ruminations. She lost her libido additionally. Her various symptoms occurred in the context of an unsatisfactory work environment. Ms Stonham was expected by her employer to work excessive hours (some on an unpaid basis), to support her employer emotionally (this including repeated trips to the house of her employer often at night and to Parliament House) and to drink alcohol with her employer. Further, she was generally unsupported by her employer in the electoral office and she had problems dealing with constituents (particularly when her employer was unavailable for arranged consultations). She described the workplace as generally unsatisfactory and intimated that it was an unhappy environment. Ms Stonham also developed problems of alcohol, benzodiazepine and analgesic abuse. She has not used excessive quantities of alcohol before the time of her employment at the electoral office, but noted a steady increase in her consumption of the substance after her employment there. She tended to drink heavily on an episodic basis, the quantities having been mentioned above. Her intake of benzodiazepine and analgesic agents (some of the latter being opioid based) became problematic additionally. Whilst it should be recorded that Ms Stonham had used Valium after the break-up of her first marriage, she had taken smaller quantities of the substance and had stopped using the substance without difficulty. I doubt that Ms Stonham would have abused any of the three groups of potentially addictive drugs if she had not been subject to significant work stress and had not suffered from a major depressive disorder. . . . . There is one further dimension to Ms Stonham's presentation which I find to be worrying. She had problems organizing her thoughts and providing information in chronological sequence, this being out of keeping with her reasonable level of intelligence. She exhibited a general air of bewilderment and confusion. Two hypotheses might be raised. First, she has early cognitive dysfunction secondary to her use of alcohol. Second, she has been placed in a situation of considerable emotional turmoil as a consequence of work stress and possible harassment by party officials who visited at her home, this leading to feelings of bewilderment and confusion. 45 On 26 May 2000 Dr Phillips reassessed Mrs Stonham and supplied a further report to her solicitors. The opinion expressed included the following: Despite hospital and outpatient therapy and the use of anti-depressant medication, Ms Stonham has a number of ongoing symptoms which once again point to a major depressive disorder complicated by substantial anxiety. On the history, she is sad and embarrassed (regarding the changes which have occurred in her life), she has lowered esteem, feelings of helplessness and hopelessness, self pity and some guilt. She is irritable and has become verbally aggressive at home (generally without reason). She described herself as having become a recluse, she has lost trust in others and has subjective cognitive impairment (impaired concentration, inability to pursue more than one matter at a time, difficulties with short term memory). She had been drinking alcohol in an episodic uncontrolled manner, but she appears to have brought this matter under control in the months prior to my consultation. She has anxiety symptoms and tends to experience panic (particularly in public places). She has now become avoidant in her behaviour. She goes to bed at a late hour (in the hope that this will assist with sleep). She feels overall that a great injustice has been done to her. Ms Stonham's major depressive disorder has become increasingly chronic in nature. There is little evidence of substantive improvement. I am pessimistic regarding her future, despite the treatment offered by Dr Lennane. Ms Stonham's symptoms are sufficient to interfere with the smooth conduct of her life and her enjoyment in life. Given Ms Stonham's history of illness (detailed in my previous report) it is more likely than not that her psychiatric problems were triggered by the psychological trauma which she experienced at the time of her employment by Ms Harrison. 46 Dr Phillips reassessed Mrs Stonham on 5 June 2002. Dr. Phillips' opinion was, relevantly: At this juncture Ms Stonham's diagnosis is an adjustment disorder with mixed anxiety and depressed mood DSMIV 309.28. It is important to emphasise the chronicity of her disorder, its treatment resistant quality and the effect which the disorder is having on her life. As mentioned in an earlier report, Ms Stonham has symptoms of intensity sufficient to interfere with the smooth conduct of her life and the quality of her life. Nothing has altered. At this late time I do not foresee Ms Stonham making further improvement, irrespective of the process of litigation. She has moved from a situation prior to 1995 where she coped in all domains of her life to a state now dominated by disability. The change in her psychological status came about at a time of unusual workplace stress. There should be little doubt that Ms Stonham's coping mechanisms were overwhelmed during her previous employment and she has not been able to make a reasonable recovery. She is likely to remain as she is indefinitely, with a relatively poor long term psychological prognosis. 47 In his evidence Dr Phillips gave the following evidence in answer to questions from Mr Matters: A. Let me be completely specific. Depression is a complex spectrum of illness. The most spectacular example of phasic depression, depression which isn't of single episode is bipolar manic depressive illness and that has got no bearing on this case at all. Within major depression you could have a continuous disorder or near continuous disorder where there were symptoms at all times. On other occasions you will get a disorder which tends to be much more phasic in that a person will cope well for a period of time then cope badly and then well again and so on. Now, on my history from Ms Stonham I concluded that her symptoms were present from the beginning and all times there may have been some minor variation in the intensity but not sufficient to lead me to consider it a phasic disorder. A. . . . I have given a trajectory of symptoms earlier in the report as they evolved. I said at least from 1995 I was not entirely convinced that there was an exact starting date for them, that almost certainly there would have been some symptoms a little before that, probably quite minor in type. They had became (sic) more intense I think by 1995. The symptoms were of clinical note and on my history they continued thereafter. Q. . . . How important was that history of not using alcohol abusively before her employment to your diagnosis? What role did that play in the diagnosis? A. It is not central to the issue of depression. On my analysis there are two issues which sit side by side. One is the disorder at that stage in the realm of depression or the manic depression and the other is the disorder associated with the alcohol and drug abuse and they sit alongside each other. They probably - one obviously has bearing on the other. It is quite - I think that that is the history as I took it. I don't think I can really add more to that. I don't think it is of enormous importance that the alcohol and drug problem started then or if it started earlier or later. I think the importance from the point of view as I looked at it was that they were there and they were significant. 48 In relation to the doubt expressed in July 1999 that Mrs Stonham would have abused drugs if she had not been subject to significant work stress and not suffered from a major depressive disorder, Dr Phillips explained that he came to that conclusion this way: A. Well, on the history prior to the period of employment in the electoral office she had not been using drugs in any addictive manner and that she then began to abuse - my term - abuse drugs in the context of work stress and in a context of a developing major depressive disorder. 49 Dr Phillips spoke about the effect of alcohol consumption this way: A. Of course alcohol, we all know, is poisonous to brain cells. If you take it for long enough you start to lose brain cells by the millions. People who are abusing alcohol over a period of time, I am talking acute intoxication, but over a period of time will start to have difficulties of cognition, particularly three things, problems of concentration, problems of short-term memory and problems of organisation, organisation of thoughts and so on. Q. The other hypothesis that you raised was one which is not related to alcohol but can you explain the mechanism of that emotional turmoil? A. Yes, if a person is in a state of acute emotional turmoil, if a person is acutely anxious, if a person is depressed you can get transient problems of cognition. People have trouble focusing, have trouble concentrating and have problems with short-term memory. I raised those two things. I was obviously concerned at the interview because I was dealing with a person of at least average intelligence, probably above, and here was someone who was having trouble giving a history in its proper chronology and in its true coherence. 50 In cross-examination Dr Phillips agreed that the history he had taken from Mrs Stonham suggested that she was under some pressure to drink with Ms Harrison - "there was an expectation to drink". He went on to agree that if the fact was that Mrs Stonham had been drinking alcohol to excess previously, that the causal link between her heavy drinking in 1995 and subsequently, with some pressure from Ms Harrison, must be weakened. A set of suggested historical facts put to him by Mr Menzies, Dr Phillips said: A. Yes, causation as an issue - having listened carefully to what you have said, and assuming those to be the facts it would be more likely than not that this lady was predisposed to alcohol abuse, that there were problems emerging in 1994 and continuing in a more serious fashion thereafter. I do not rule out the importance of stress in the workplace but I could not stand here and say it was stress the workplace alone which caused her to drink in a fully controlled manner. Q. It follows doctor, that you would not be able to attribute any particular connection with stress in the workplace other than it is something one could not rule out? A. I would not go as far as that. I would say that given the many instances of stress in the workplace that she put to me that I would see that being a significant factor in the causal chain, but a factor which does not explain the process on its own. Q. And still of course you obviously and necessarily remain dependent upon the frankness of her history concerning those matters as well? A. Yes, always. 51 The matters which Mr Menzies had put to Dr Phillips as showing some predisposition I summarise as follows: · Drinking to the point of drunkenness at a post by-election party in August 1994 before employment commenced. · Drinking to the point of drunkenness at a party in December 1994 whilst working two days per week. · On each such occasion she revealed to a young woman attending that she had better form of alcohol hidden in the backyard. · She was observed by a work colleague at a social function (the opening of a hotel) and said words to the effect "You didn't see me, I am supposed to be on sick leave". 52 Dr Derek Lovell, a consultant forensic psychiatrist, interviewed Mrs Stonham on behalf of GIO Medical Services on 15 December 1997. The history supplied by Mrs Stonham to Dr Lovell in relation to alcohol abuse was that prior to working in the electorate office she drank alcohol only socially. Her problems with alcohol abuse began when she began to socialise with other ministerial staff and drink champagne. Mrs Stonham, over more than two years, increased her intake of alcohol to 750ml of scotch or vodka a night. In an effort to deal with alcohol withdrawal of a morning, she would take up to 15 x 5mg Valium tablets. She would use three to four Panalgesic to deal with her hangover and headache. Increasingly she became less able to function on this amount of alcohol and medication. She linked her substance abuse to the conditions of her employment. 53 Dr Lovell's report continued: It is noteworthy that Mrs Stonham was first prescribed Diazepam after the breakup of her first marriage in which she was a long-standing victim of domestic violence. This relationship had hostile-dependent qualities. She stated that she didn't tell anyone about it, as she didn't want her father in gaol when he found out that his daughter had been physically abused. She herself makes a dynamic link between the situation in her first marriage with the situation she has recreated at work. She stated that both her first husband Stephen and Ms Harrison had a fundamentalist protestant background and that they both exhibit a suppressed anger. She gave the impression that she enjoyed the political intrigue of the office and her role as a peacemaker. She felt that she was indispensable in her duties. 54 Dr Lovell's conclusions at this time were summarised in the following paragraph in the report: Dr Edward's treatment of Mrs Stonham has been directed toward her substance abuse. He is attempting to get her to cease her alcohol intake. He has not prescribed antidepressant medications. I would not view her alcoholism as being directly related to her work. There is a past history of substance abuse and a family history of alcoholism on her mother's side. She has used alcohol to titrate her anger. Essentially she has recreated a hostile dependant relationship, similar to her first marriage. I would see her difficulties as coming from her own personality structure and feel that work has had very little to do with the process. She needs to stop drinking. She does not appear to be able to do this despite her being off work since the 7th November 1997. I do not believe there is underlying psychological illness but she should perhaps be re-assessed if she is able to remain abstinent from alcohol. She sees her current period of time off work as being was (sic - what) is owed to her because of what she has given. I think it is important her for to realize that no one actually asked her to give what she did. She has confused her role as counsellor with her position as an electoral officer. She is currently unfit for work because of her substance abuse. 55 Dr Lovell interviewed Mrs Stonham again on 16 May 2000 and on the following day prepared a report for GIO Australia. His opinion included the following: I do not believe that it is reasonable to attribute her drug and alcohol use to her employment. There is a family history of alcoholism, and a previous history of treatment with benzodiazepines following the failure of an abusive relationship. The investigator's report does not support Ms Stonham's claim that she worked longer hours and that she had no supervision. There was a considerable amount of anger expressed toward Ms Harrison, and a belief that Ms Stonham's sister, Jill Raines, who worked as Ms Harrison's Electoral Officer in the city, was "leading the high life" with Ms Harrison while Ms Stonham remained in the Electoral Office at Parramatta. Currently, Ms Stonham describes panic attacks, which she states occur twice per day. These do not prevent her travelling on public transport or going out. She is treated with a subtherapeutic dose of the antidepressant Mianserin, 10mg daily. I would not regard her current psychological symptoms as being related to her employment with the Legislative Assembly. Her anxiety symptoms most likely predated this. She has an excellent prognosis for recovery. Her panic is being fuelled by unresolved anger toward her previous employer. 56 On 13 August 2002 Dr Lovell provided the Crown Solicitor's Office with a written review of the reports of Drs Edwards, Lennane and Phillips and concluded: The psychiatric reports which you forwarded pay little attention to the personality attributes of Ms Stonham and her underlying anger and its role in her drinking. There seems little doubt that Ms Stonham was unhappy in her employment and felt passed over, that she chose to drink, and that this caused considerable problems. This unhappiness has remained, and is fuelled by unresolved feelings of anger toward her employer, which Dr Phillips medicalises by stating she has a chronic Adjustment Disorder with depressed mood. Her career did not advance as she had hoped. She has a past history of idealisation and devaluation, and a tendency to split because of her earlier family background. This dynamic was replayed between she and her sister. Alcohol abuse is multifactorial, and often occurs in those with dependent personality traits who require a high level of recognition. It is my view that underlying personality issues have a far greater contribution to her substance use than the work environment, and that it is not necessary to invoke a psychiatric diagnosis other than Dysthymia or unhappiness associated with Ms Stonham's personality style. Her unhappiness may have led to excessive consumption of alcohol, but it is important to realise that such an increase in alcohol consumption is not involuntary. 57 In the light of the factual findings on the evidence I have come to, and taking into account the fact that their conclusion are based on different, assumed facts, I am unable to accept the views of Drs Edwards, Lennane and Phillips regarding the causal link between the applicant's medical and mental conditions and the applicant's workplace conditions. 58 The inherent improbability of the applicant's allegations against Ms Harrison, arising from their absurd nature, together with the unreliability of the applicant's recollection of detailed events over a period of years when I find that her memory is not to be relied upon, contribute to my finding that the applicant's recollection of the relevant history in this case cannot be accepted as the facts of the matter. I have to say that the picture of Ms Harrison painted in the evidence of the applicant was of a very different person to that described in the evidence of numerous other witnesses and observed by me in the witness box. Ms Harrison was a most impressive witness who was firm and forthright, yet prepared readily to recognise when necessary her inability to recall particular events. Overall, I found Ms Harrison and the witnesses called in her case generally to be convincing. The Employment 59 The applicant was a resident of the Parramatta area which in the early 1990s was represented in the Legislative Assembly of New South Wales by Andrew Ziolkowski, who was the husband of Ms Harrison. Mrs Stonham came from a staunch Australian Labor Party ('ALP') background, had a strong social conscience and joined the ALP in approximately 1992, then beginning to attend monthly branch meetings. She worked as a volunteer assisting Mr Ziolkowski in his campaigns, attending fundraising barbeques, letter dropping and the like. She admired and respected Mr Ziolkowski's abilities and performance as a Member of the Legislative Assembly. 60 The applicant's evidence sought to create the impression that she had no personal political ambition and that she had little political understanding and ability. This position was inconsistent with her prior history. For example, Mrs Stonham was elected a member of the State Electoral Council of the ALP for the Parramatta electorate. She deposed to having been asked to join that Council, after Mr Ziolkowski's death in March 1994, by his friend and Electorate Officer, David Howse. However, she had become a member of the Council prior to this, in fact in 1992. This she did whilst the mother of young children; it is indicative of an interest in politics greater than that for which she contended. 61 It seems to me this attempt to play down the applicant's political interest may have been thought necessary to support her contention that she was coerced by Ms Harrison into running for preselection for the Parramatta Council, an experience which she said she found traumatic and unwanted. It was also inconsistent with the evidence of other witnesses that she actively engaged in ALP activities independently of Ms Harrison. Mr Stonham, the applicant's husband, in his affidavit deposed that: I observed this group work and socialise very closely together and on occasions when I was present I observed them speak of nothing but politics. 62 A friend of Mrs Stonham's, Mr Wilson, gave evidence that politics was always the subject of conversation. In Ms Harrison's evidentiary case, Ms Sheil, Ms Quinn, Ms Raines (the applicant's sister) and Mr Howse all deposed to active and voluntary engagement in ALP activities by Mrs Stonham as an enthusiastic member of the ALP . 63 Upon the death of Mr Ziolkowski in March 1994 Ms Harrison was preselected to run for the ALP in the consequential by-election. Mrs Stonham continued her active support of the candidate during the course of the by-election. Mr Howse remained the senior Electorate Officer during and subsequent to the by-election. The applicant and her sister, Ms Raines, were offered by Ms Harrison the position of the second-ranking Electorate Officer Grade 1 position at Parramatta. It was intended that they would share the job on a 50/50 basis. However, it appears that the system for payment of wages did not allow for half-days and accordingly the sisters, by arrangement between themselves, alternated week about on a two/three day rotation. Wages were paid however on the basis that Mrs Stonham was working only two days per week, not three, and Ms Raines was working three days each week, not two, in alternate weeks. Ms Raines' evidence was that she paid her sister out of her own wages for the day on which Mrs Stonham worked the third day in the alternate weeks. Mrs Stonham deposed that she worked only two days a week for which she was paid. However, she contends that approximately two weeks after she commenced to work in the electorate office on 12 September 1994, Ms Harrison asked that she work full-time in the electorate office to keep up the electorate office work until after the election, saying: "I'm pretty sure I will get a Ministry and you will have a senior position if you do this work. This is a great career opportunity for you Anne". 64 Mrs Stonham said in evidence that she conformed with that request in the expectation that she would obtain a senior position in the ministerial office, but that Ms Harrison broke her promise of such a job. 65 Ms Harrison denied this conversation and suggested that in August 1994 she had no idea that she would become a Minister in March 1995. Indeed, her evidence was that she considered carefully whether or not to take the appointment as a Minister following the March 1995 election. 66 As to this alleged broken promise about a senior position in the ministerial office Mrs Stonham, in cross-examination, said that she was told by Ms Harrison there was only one position in the ministerial office which she had offered to Jill Raines but the latter had declined. She said Ms Harrison said to her "I can't be in the Ministry on my own; I want you or Jill to take the position." Mrs Stonham said that she rejected the position and that this became, in her mind, a broken promise of Ms Harrison "because Ms Harrison I saw as manipulating because she knew Jill would take it". 67 Mrs Stonham's evidence was in some respects equivocal on this matter. She also expressed the view that she was happy for her younger sister to obtain the position. That too militates against the view that Ms Harrison was breaking some promise. However, her husband in cross-examination said she was "absolutely furious" when she failed to obtain a ministerial staff position. 68 On any view of this evidence, it is quite unbelievable that, in the circumstances of a recent success in a by-election, a ministerial office appointment would be offered. If it were in fact offered, one would wonder why the matter would not be affected by a serious degree of doubt. If it were offered and rejected, it beggars belief that it could have been considered on any rational basis as a broken promise. 69 This alleged conversation between Ms Harrison and Mrs Stonham in September 1994 typifies what was submitted for the applicant represented a "power imbalance" in the relationship between the two. It was a power imbalance which led, it was suggested, to the continual abuse of the applicant by Ms Harrison. Yet, on every count the basis for this view is found wanting. 70 In June 1995 Mrs Stonham ran as a candidate in the Parramatta City Council elections. She claimed she was manipulated into doing this by Ms Harrison. This view seems to have been a later interpretation of events in the light of her evidence that she felt sorry for Ms Harrison given the loss of her husband and the political activities of others during the period before Mr Ziolkowski's death and subsequently. She felt the desire to help Ms Harrison in that context and claimed no interest for herself in politics at all. 71 Mr John David Cairn gave evidence in the applicant's case. He was employed between April 1995 and March 1996 in the electorate office under Mrs Stonham. Mr Cairn had been raised in a family and inculcated with ALP politics. He joined the ALP at 19 years of age. He stood for and was elected President of the Student Representative Council while he was at the University of Western Sydney. In March or April 1995 he became the branch secretary of the Parramatta branch of the ALP. 72 Mr Cairn deposed that Mrs Stonham was not keen to run in the Parramatta Council elections and his affidavit would encourage the view that she was running merely to assist Ms Harrison. Of course, whether that was solely her motivation, Mrs Stonham agreed in cross-examination that she had this desire to assist Ms Harrison. Mr Cairn deposed that she exhibited some distress after the elections. I am prepared to accept that may have been so but it does not lead necessarily to the view that Mrs Stonham was in some way treated badly by Ms Harrison or was required to do something she was not willing to do. 73 In this context, Ms Raines testified that Mrs Stonham had said to her: I'm happy to run for Council. It will keep (Mr -----) out and now that I have done the right thing, maybe the Party will give me a better spot on the ticket next time around. (I have omitted the name referred to in the second sentence, it being unnecessary in the present context). 74 It appears that Mrs Stonham applied herself assiduously to the candidacy role. A copy of correspondence from her to ALP preselectors for the ward in which she was running was tendered, as was her speech to the preselectors. Both documents indicate serious attention having been applied to the task. 75 Mr Howse also ran in a different ward in the same Council elections for Parramatta. He deposed: We discussed our respective campaigns frequently. At no time did she ever express any fear or anxiety to me. From my observations of Anne Stonham throughout her campaign, she campaigned enthusiastically and competently. During that period Anne Stonham said to me words to the effect of:- I have been a member for a long time. Even though I don't expect to win, it's a good opportunity for me to raise my profile amongst branch members. During the campaign for Parramatta Council, Anne Stonham also worked voluntarily on the campaigns of other people on the ticket. She was, from my observations, pro-active and enthusiastic in the campaign from my observations she was not a reluctant draftee to the ticket. I was present at the pre-selection meeting at the Parramatta Civic Centre. I deny that the meeting occurred in a hostile environment. All ALP candidates seeking pre-selection that night, including Anne Stonham and me, made a speech. Anne Stonham spoke well and showed no signs of fear or terror. All of the speeches, including that of Anne Stonham, received applause. 76 Mr Howse regarded Mrs Stonham as a good friend for several years. He said that he particularly respected her enthusiastic voluntary party political work. 77 I am not prepared to accept the position which Mrs Stonham has adopted in her evidence, namely that she was being "manipulated" by Ms Harrison to her detriment, as accurately representing the position she was taking in June 1995. 78 Mrs Stonham's evidence about the performance of five days' work each week, three days of which were unpaid, in the period September 1994 to March 1995, was also disputed by Ms Raines and Mr Howse, who both contended that she worked the days and only the days according to the rostered arrangement between Mrs Stonham and Ms Raines. Further, the evidence was the workload in the electorate office was not excessive at that or any other time such that would call for a requirement of the applicant of the type she alleges. I cannot be satisfied on the balance of probabilities that the alleged conversation set out in par. 62 hereof occurred or that she worked unpaid between September 1994 and March 1995 for three days per week. 79 I have now dealt with the first primary allegation made by Mrs Stonham, namely, that she was effectively required to work full-time for only two days' pay during the period between September 1994 and March 1995. I now propose to deal with each of the significant allegations raised by her in her case and to explain why I find each such allegation has not been established. Many other matters were raised in the case with which I do not intend to deal. Each depended upon the applicant being able to establish the veracity of her evidence in relation to them. In circumstances where I have found the applicant's memory and recollection unreliable, I find it unnecessary to identify each such matter and the evidence upon it. I therefore confine myself to those issues which I have regarded as the more significant. It will also be observed that I have not referred to the evidence of a number of witnesses called in Mrs Stonham's case. Those witnesses have either touched matters I have considered insignificant or, in my assessment, have not contributed any evidence of weight sufficient to cause me to come to any other view. 80 In dealing with these complaints and the responses in the respondents' case to them, it is important to remember that the evidence of the applicant is contravened by persons who were understood by her and by them to have formerly been friends or, in the case of Ms Raines, a younger sister with whom the applicant had had a very close sisterly relationship. 81 Mrs Stonham alleged that upon commencing to work in the electorate office in September 1994 she was not taught the work she was to do or informed about the scope of the job. This proposition is superficially incredible. Mr Howse, who was the senior officer in the office, gave evidence of his induction of both the applicant and Ms Raines and his illustration of the work to be performed, the tools available in the form of manuals etc and how to use them. He provided them with a copy of the enterprise agreement then applicable. Mr Howse was there to assist and advise as necessary. He deposed: . . . . I took care at that time to explain to each of them in detail the nature of their duties. . . . . I cannot imagine how my supervision training of Anne Stonham could have been any more detailed. 82 Mr Howse also referred to the Speaker's Office circulating to the electorate office, about every other week, newsletters and circulars relating to matters relevant to electorate office staff. The Public Service Association of New South Wales also had an electorate officers' sub-branch which had been involved in the negotiations of the enterprise agreement and which sent newsletters to electorate office staff on current issues and proposed variations to the agreement. He deposed that: Anne Stonham later joined the electorate office sub-branch of the PSA and actively participated in negotiations relating to the enterprise agreement. 83 The affidavit of Ms Rogers also annexed copies of an induction handbook and circulars of the type referred to by Mr Howse. 84 Ms Raines also deposed that she recalled being provided by the Speaker, at the time of their employment, with a copy of a handbook which included a job description. 85 It appears to me that Mrs Stonham, who professed to Mr Howse her enjoyment of the job, including especially the interaction with people and the opportunity to help them, either had no need for access to these documents or did not take the opportunity to access them. 86 The applicant contended that the electorate office was so busy that she was unable to take tea or lunch breaks; it necessitated her working long hours including the performance of work on the weekends. She deposed: I estimate on average I arrived at the office at about 8am and continued working until 10pm which is fourteen hours. However, on average, I deduct half an hour of travelling to and from work, one hour for my evening meal and one hour attending to my family, I therefore averaged eleven hours working a day. Every week on average I would do some work on weekends in the office. I would work on Saturday of (sic - or) Sunday, usually commencing early in the morning from 7am and spend up to five hours at work. . . . . . . Some weekends I would not work on any weekend days whilst on other weekends I would go into work on both Saturday and Sunday. 87 Mr Cairn testified that he worked from 8am or 8.30am until 6, 7 or 8pm (usually 6pm) and that Mrs Stonham usually left at the same time. His evidence in this regard I found to be loose and obviously evasive. The variation in his answers in cross-examination I consider show an antipathy to Ms Harrison's position. This was also illustrated by his answers to Mr Weber in regard to his attendance at ALP branch meetings: Q. So to the extent to which your affidavit suggests that your attendance at Branch meetings was at the direction of Ms Harrison, it is quite misleading, isn't it? A. No, I don't believe so. Q. You were going to the Branch meetings in any event weren't you? A. I put my name forward. Q. Sorry, could you answer that question, you were going to Branch meetings in any event, weren't you? A. As directed by Gabrielle Harrison, yes. Q. Sir, would you answer my question, as the Branch Secretary, you were going to Branch meetings in any event regardless of any conversation you had with Ms Harrison, that is so, is so, isn't it? A. No, I don't believe that is so. Q. What, you as Branch Secretary weren't going to turn up at Branch meetings, is that what you say? A. There were occasions I didn't go to Branch meetings. Q. I am talking about the occasions when you did? A. Yes. Q. You went there because it was your job as Branch Secretary to do so, agree? A. It was my job to present the minutes at those meetings, yes. Q. Yes, it was your job to go to the Branch meetings, wasn't it? A. Yes, it was my job to go to the Branch meetings. Q. So your attendance at such Branch meetings as you attended had nothing to do with any conversations you had with Ms Harrison, did it? A. No, I don't believe so, that is correct. 88 Mr Howse and Ms Raines denied that the work involved in the office required any undue time to perform. Mr Howse deposed: I deny that she frequently had to work in the office after hours. During the period September 1994 to April 1995 I generally arrived at the electoral office at approximately 8:30am. Anne Stonham would usually arrive at approximately 9:15am by arrangement with me because she had to prepare her two small children for school and day care. Anne Stonham regularly finished work before 5:00pm. I was nearly always at the office when Anne Stonham left for the day. Her husband, Greg Stonham, often collected Anne Stonham from the office. When I left the office later in the evening I would lock up and switch on the security alarm. Prior to April 1995 while I was senior electorate officer at the Parramatta Office I deny that the workload justified Anne Stonham performing weekend work. After April 1995, I still occasionally visited the electorate office on weekends. I never saw Anne Stonham there at those times. 89 Mr Howse' mother, Mrs Jill Howse, was engaged at one stage to act as the Electorate Officer Grade 1, working under the applicant. She had formerly been involved in a senior position for many years at Westmead Hospital. She described the job in the electorate office as 'a picnic' by contrast with her former position. She found that the office was being poorly administered with poor filing and prioritising of work. With respect to the hours of work she deposed that the applicant, in her experience, generally commenced work at 9.30am. 90 Again, the applicant's case in this respect consists of what is effectively unsupported assertions. There is no time record, a matter about which Mrs Stonham complained as being a failure of the responsibility of the Speaker to ensure that adequate time records were kept. However, where there is an absence of time record, as here, the applicant's position, which asserts that she worked particularly long hours, is not assisted by her inability to substantiate her claim with respect to the hours she worked. This is particularly so where others with experience of her at work express a contrary position. It is not enough in this context to find that the applicant worked outside "normal" office hours, because of the inbuilt overtime factor in the remuneration of electorate staff. I would consider regular work up to 6pm would be well within that contemplation. Even if it was more probable than not that the applicant worked outside normal hours, the absence of express indications of her work times, taken into account with the unreliability of her memory, do not permit me to conclude that she has established that she worked a necessary pattern of working hours which would permit the conclusion that the agreed remuneration for electorate staff is inadequate or that, in that respect, her contract was relevantly unfair. 91 I also give weight to the evidence, against the applicant's contention in this regard, which demonstrates that she was often able to leave the electorate office for the purposes of shopping; to have lunch with her sister, Ms Raines, when their relationship was being maintained; to drink with her associates when she was consuming alcohol to excess, and at other times. 92 The next claim to which I turn is that the work Mrs Stonham undertook when she became the senior Electorate Officer in the Parramatta Office was actually the work of Ms Harrison, viz a parliamentarian. It is clear from the evidence of the Speaker, Mr Murray, and Mr Howse that the work of the electorate office staff is mainly to deal with constituents who access the Member's electorate office whether in person or otherwise. This contact is usually undertaken for purposes such as obtaining the aid of the Member to achieve some desired result, such as public housing placement, or any other relevant matter. The function includes the interviewing of constituents, the writing of correspondence, contact with relevant departments, Commonwealth and State. These constituents can sometimes be very difficult to deal with, both in terms of their problems and their personal behaviour. Where a constituent's problem is beyond the capacity of the Electorate Officer and requires the attention of the Member the matter is referred to the Member for action. 93 On the evidence in these proceedings there is simply nothing which distinguishes the work performed by Mrs Stonham from that which was identified in the 1992 proceedings as the work of Electorate Officers. The only possible explanation I can find for Mrs Stonham's view that she was performing the work of the Member, at least in so far as the electorate office was concerned, is that she progressed from being the "junior" person in the electorate office to the senior person, a step which would necessarily have entailed an assumption of greater responsibility, but for which she was paid the higher rate provided. With Ms Harrison's elevation to the Ministry there followed a necessary reduction in her availability to attend the electorate office. As is evident from the evidence in the 1992 Enterprise Agreement proceedings, it is in precisely those circumstances that an electorate officer must work when the relevant Member is a Minister. However, it seems to me that the coincidence of the new responsibility and the reduction in availability of the Member has led Mrs Stonham, quite unjustifiably, to the view she was doing the work not of an Electorate Officer but a Member of Parliament. 94 I find that the applicant has failed to establish she has performed work, in the way alleged, which was really that of the Member, Ms Harrison, or that she has undertaken work for which she has not received appropriate compensation as a result of the application of the Enterprise Agreement or the Award. 95 Allied with the proposition that the applicant was required to work excessive hours is her allegation that during a period of holidays, granted to her after she complained of being near to breaking down, that she was required to attend upon Ms Harrison at her home following the latter's breaking her arm in an accident while playing netball. The applicant alleged that she was called upon by Ms Harrison to attend her home for the purpose of "dressing her injury", providing her with food and general care including dressing her. Ms Harrison's evidence was that, as she recalled it, Mrs Stonham made one visit to her home during this period purely as a social call. 96 Ms Mei Lian Ross, a close friend of Ms Harrison's since her school days, swore an affidavit in the proceedings upon which she was not cross-examined. Her affidavit included the following: In about May 1997 I received a telephone call from Gabrielle Harrison informing me that she had broken her elbow. My husband and I met her at the hospital and after her treatment, drove Gabrielle Harrison home. She was in a lot of pain. I helped her into bed on the Saturday night and went home. I visited her the following day (Sunday). I was there most of the afternoon. I carried out some domestic duties and arranged dinner for Gabrielle Harrison and her son. Gabrielle Harrison remained in bed all day Sunday. I recall that she was taking Panadeine Fort, which the doctors at the hospital had prescribed. Her elbow was broken in 3 places. The next day (Monday) I visited Gabrielle Harrison again after I had dropped my children off at school. I stayed with her from about 9.30am to about 2.30pm. I carried out some domestic duties while I was there. I rang her each day during the next 3 days and then visited her on the Friday evening. During the second week of Gabrielle Harrison's convalescence, I visited her on 2 days during that week and telephoned her everyday. During the whole of those 2 weeks I did not see Anne Stonham at Gabrielle Harrison's home. I also refer in particular to paragraph 95 of the Stonham affidavit where she says "my tasks were to dress her injury". Gabrielle Harrison had a broken elbow. Her arm was in a cast, which in turn was in a sling. It required no dressing. During my multiple visits to Gabrielle Harrison during that 2 week convalescence period I never saw her drink alcohol and never saw her visibly affected by alcohol. I recall that she was reluctant to even take the medication prescribed for her injury. She said to me words to the effect of:- "I don't like taking those pain killers. They make me drowsy." During the period 1994 to 1997 inclusive I estimate that I visited Gabrielle Harrison at the Parramatta electorate office about half a dozen times. From my observations the electorate office was moderately busy but I saw no evidence of a stressful office. The phones rang reasonably often and there was occasionally a person sitting in the waiting room. It did not strike me as any busier than the average small business. 9. During some school holidays in 1995 I worked as a temporary receptionist at Gabrielle Harrison's ministerial office, when Cecilia Powers was away for 2 weeks. The tasks I carried out included greeting people, answering phones, taking messages and making coffee. It was a constant workload and sometimes for short periods it was hectic but I would not describe it as a stressful job. 97 Mrs Margaret Ruth Wigmore also swore an affidavit in the proceedings upon which she was not cross-examined. She is the coach of the netball team of which Ms Harrison is a member. She accompanied Ms Harrison to hospital after her accident; visited her on the following evening, a Sunday, taking with her a number of meals she had prepared for Ms Harrison and her son. She visited again after completing work, on the following Tuesday and Thursday evenings, staying for one to one and a half hours. On the Thursday evening she took more prepared meals. She spoke with Ms Harrison daily on the telephone to check on her welfare and see if she required anything. During her visits, she did not see Mrs Stonham nor was she informed of her presence in her telephone calls with Ms Harrison. 98 She deposed that Ms Harrison had a broken arm which did not need dressing and that in the week following her injury she was not affected by alcohol or drugs. She said: I did observe a prescription for pain killers which Gabrielle said had been prescribed by the hospital but which she had not filled during the first few days after her accident. 99 She said Ms Harrison had been an enthusiastic team member who, from her observations, makes every effort to attend matches regularly ". . . she is a fit and healthy person and I have never seen her affected by alcohol or drugs". 100 Another affidavit tendered in Ms Harrison's case was not the subject of cross-examination. It was sworn by Helen Marion Quinn. She had first met Ms Harrison and her husband at ALP meetings. They in fact lived close to one another and became friends, often attending social and political gatherings together. Ms Quinn visited Ms Harrison the day after she broke her arm, staying during the morning until Ms Ross arrived. She then left and returned later that evening to check whether Ms Harrison needed anything. She deposed: During the following week I visited Gabrielle Harrison at random times each day, usually between 9.00am and 5.00pm. I only saw Anne Stonham there on one occasion. She was with her sister Jill Raines. They were sitting talking to Gabrielle Harrison. 4 days after Gabrielle broke her arm she said to me: 'I'm not taking any more of those Panadeine Forte's. They are just too strong." During the second week after Gabrielle Harrison broke her arm she became much more mobile. During those 2 weeks after Gabrielle Harrison broke her arm I never saw her drinking alcohol and I did not see her affected by alcohol. I refer to paragraph 3 of the Stonham affidavit. During the by-election campaign prior to August 1994 I attended the campaign office in Church Street every day (Monday to Friday). I answered phones and helped in preparing mailouts. I did see Anne Stonham at the campaign office during that election campaign but deny that she attended the campaign office as much as 35 to 40 hours per week. I refer to paragraphs 140 to 175 of the Stonham affidavit which are headed "Party Political Tasks Assigned to Me". During the period 1994 to 1997 inclusive I regularly attended meetings of the Parramatta branch of the ALP. The branch always met on the second Tuesday of each month. During that period the meetings were in 1994 at the Senior Citizens Centre and then at a later date branch meetings were held at the Parramatta Council Chambers. Attendees were required to sign the attendance book. They were formal meetings. There were usually 15 to 20 people in attendance. The President of the branch chaired those meetings. The meetings normally lasted from 8.00pm to about approximately 9.30pm. At those meetings current political issues were discussed and resolutions were voted upon. Resolutions were then forwarded to either the State Electoral Council of the ALP or the Federal Electoral Council of the ALP for further action. Anne Stonham began attending the meetings during the time Andrew Ziolkowski was member for Parramatta. She attended branch meetings regularly until she began working in 1995 and thereafter less regularly. From my observations Anne Stonham was an enthusiastic volunteer worker for the ALP both before and after the August 1994 Parramatta by-election. 101 The weight of evidence against Mrs Stonham's allegations in respect of this period during which Ms Harrison suffered a broken arm is overwhelming. It is impossible to accept as accurate her depiction of a period in which she was nearing, on her understanding, a nervous breakdown; desperately in need of relief from work and indeed Ms Harrison, and yet subjected to this allegedly overbearing, even cruel, requirement to minister to Ms Harrison's needs. I can only conclude that Mrs Stonham's recollections of this period, however vivid in her memory, are false. 102 The references in these affidavits to the consumption of alcohol refers to an allegation made by the applicant that Ms Harrison was drinking heavily in this period of recovery. Indeed, the applicant alleged that Ms Harrison always drank heavily in social situations and more particularly in company with only the applicant. This evidence, too, I am unable to accept. Inga Sheil, Mrs Sheil, Jill Raines, Leah Tucker, Trevor Johns, formerly employed for a number of years as Ms Harrison's departmental driver, and Ms Ross all attested that Ms Harrison was a moderate and controlled social drinker only. There is no evidence to support the applicant's assertions in this regard. I reject them. 103 Mrs Jill Cecilia Howse, the mother of David Howse, gave evidence in the proceedings. She had met Andrew Ziolkowski and Ms Harrison on a small number of occasions when he or they attended her home to visit her son. Mrs Howse generally did not take an active part in any discussions on these occasions, she not having then or since any particular interest in politics. In 1994 she helped out with letter box drops and fundraising functions for Ms Harrison's by-election although more, she deposed, in an effort to assist her son than out of any political connection with Ms Harrison or the ALP. 104 In about April 1997, after 19 years working at Westmead Hospital, most recently as the Supervisor of Statistics for the Western Sydney Area Health Service, she determined to leave that employment which was stressful with a heavy workload and tight deadline. At that time David Howse said to her: There might be a job as an Electorate Officer at the Parramatta office if you are interested. The previous lady, Anne Pitney, has had a falling out with Anne Stonham and has left. Mrs Howse: I am interested, but I don't know if I could work with Anne. I have met her at a couple of social things and she seems a bit odd. David Howse: Why don't I arrange for you to try it for a day and see how you go? Mrs Howse: Okay. I subsequently attended the office for a day. I said to Anne Stonham when I arrived at the office: What is the job? Anne Stonham replied: All you have to do today is answer the phones and take messages. I then spent the next few hours carrying out those tasks. Later in the day Gabrielle Harrison attended the office and said to me: Well what do you think Jill? Would you like to take the job? I replied: Yes, I think I would. From what I have seen, I am sure I could handle the job. I will have to give a few weeks notice at work (meaning Westmead Hospital). 105 Mrs Howse worked in the electorate office for a total of six weeks, the last two weeks of which Mrs Stonham was on leave. The applicant's evidence in this regard was very different. She deposed that in May 1997 Ms Harrison said to her: I plan to dismiss Jill Howse. I want you to take two days off and go home. I will dismiss her without you being present. I will tell her that you're her senior and that you are the one who has pushed me into dismissing her. I will have to eat a shit sandwich on this one because I don't want her to take me for unfair dismissal. I'll do it for you Anne, it will be good for you. It will toughen you up. I took the two days off. On my return Jill Howse was no longer working in the office. This brought an end to my friendship with David Howse. 106 She deposed that she later had this conversation with Ms Harrison: Ms Harrison: I told Jill Howse that you were the senior person in the electorate office and that you were dissatisfied with her. Mrs Stonham: How am I going to live this one down Gabrielle? I wanted Jill to be retained and trained. I didn't want a sixty year old woman to be sacked. I don't want to be responsible for that. 107 Ms Harrison denied absolutely the conversations alleged by Mrs Stonham. Ms Harrison deposed on this subject matter as follows: " . . . several weeks after Jill Howse commenced employment at the Parramatta electorate office Anne Stonham said to me on different occasions words to the effect:- Jill is not suited to the work Jill is just not working out Other people have been complaining about Jill About 6 weeks after Jill Howse commenced employment I said to David Howse: We have a bit of a problem. Anne Stonham keeps complaining about your mother. They apparently can't stand to be in the same room together. David Howse replied:- I will speak to my mother about it and come back to you. The following day Jill Howse resigned from her job without discussing the matter with me. After her resignation, Jill Howse and I did have a meeting at which I wished her well for the future. 108 When the applicant returned from her two days off a letter was awaiting her from Mrs Howse in the following terms: 13 June 1997 Dear Anne, I am extremely sad and upset that you have taken the liberty to speak to Gabrielle about my supposed victimisation of you, especially as I have not been given the opportunity of defending myself in any way. To say that I have said anything to Gabrielle that would have in any way sounded demeaning to you is an absolute lie and I do feel very sorry for you that your apparent insecurity makes my presence in the office a threat to you. During my six weeks here I have tried to get on with the clerical side of thing hoping by doing so it made a little time for you to do your interviewing. Sure I felt that I was thrown in the deep end so to speak and felt at times I would have liked a little more direction, but at no time have I ever said anything to Gabrielle, as I have only had the liberty of speaking to her here about three times over the past six weeks. Thanks to you I now find myself without a job, having given up a better paid, albeit more stressful one to work for Gabrielle. I had felt given time we could have made a good team, but that was not to be. Regards, 109 Mr Howse deposed: A few days after Jill Howse left the electorate office I received a telephone call late at night at my home while I was asleep. It was Anne Stonham. I would describe her as being in a hysterical state. She screamed at me words to the effect of:- I've got your mother's letter you fuckwit. You put her up to this. You are trying to undermine me. It's all your fault that it's happened this way you bastard. She then hung up on my before I could respond. During the next few weeks I received several more abusing phone calls from Anne Stonham, both at my home and my office, on different issues. As a result of these phone calls I lost respect for Anne Stonham and began to have less social contact with her. 110 I find myself quite unable to accept the applicant's evidence in respect of the matter of Mrs Howse' termination. The proposition that Ms Harrison would utilise the applicant in the way that she alleged in respect of an office worker about whom there was absolutely no suggestion of inadequacy or unsuitability is simply unbelievable. That conclusion is assisted by the fact that Mrs Howse was the son of Ms Harrison's Chief of Staff, David Howse. If there had been a problem in Ms Harrison's relationship with Mrs Howse, there may have been some inkling of it in the evidence but there was none. 111 The next issue is the applicant's allegation that Ms Harrison wore a gold locket around her neck in which she was alleged to place the picture of any person she was trying to get rid of. This matter is of such triviality that it would justify being ignored, save that its revelation in evidence attracted what I saw as unfavourable (and unjustified) media attention for Ms Harrison. If for no other reason, it is considered here. 112 The applicant deposed that: In about late 1995, Gabrielle Harrison was in her office in the electorate office. I walked into her room as she was laughing and she said: "Look at this" She was holding on to a gold locket that she was wearing around her neck. She opened the locket and it had a newspaper picture in it. She said: "I'm getting rid of (name deleted). When I want to get rid of someone I just put their picture in my locket or if I haven't a picture I put in their name." 113 In June of 1997 Ms Harrison came into the electorate office and said: I am sorry I missed your Birthday and this is something for you, I hope you like it. I said: Thank you. She left the office and I opened the box. In it was a locket. It was the same kind that she had been wearing on the day she showed me her locket. I felt intimidated and threatened by (sic-the) way that Gabrielle acted towards her staff as she seemed capable of getting rid of anyone she wanted to remove from her employment. After showing me her locket I was very wary of Gabrielle and even more careful not to upset her. 114 Ms Harrison's evidence in this regard was that she possessed only one locket on a necklace, which had been presented to her as a gift by Jill Raines. The locket was placed in evidence. To say that the locket was capable of "having a newspaper picture in it" is stretching a long bow indeed. The locket is in what I would describe as the shape of a pendulum, much like that forming the pendulum of a clock. It consists of what I might call a vertical spindle with a round, openable case forming the locket within the length of the spindle. The spindle is 40mm long; the locket is 5mm wide and approximately 2mm deep. I am inclined to accept the proposition urged by counsel for Ms Harrison that it would be a virtual impossibility to utilise the locket in the way alleged by the applicant. However, even if Ms Harrison (contrary to her express evidence, which I accept) was held to have said the words alleged against her, how could it amount to any more than either a joke or a silly suggestion? The applicant's interpretation of the later gift is incredible. I regard the allegation as simply unfounded and I accept Ms Harrison's evidence to that effect. 115 The next issue raises serious allegations by the applicant against an officer of the Department of Housing and Ms Harrison, which again involves a unilateral assertion by the applicant and a series of convincing denials by other witnesses, including those against whom the allegations were levelled. 116 It was suggested by the applicant that shortly after she became a permanent electorate office employee (that is, probably in the latter part of 1994 but certainly before the March 1995 general election) she met, with Ms Harrison in a local coffee shop, the Regional Director of the Department of Housing. I do not intend to refer to this person by name because of the nature of the allegations. The applicant alleged that Ms Harrison produced to the Regional Director a red file and said words to the effect "There is a need for the people in this red file to be housed, they are Mr and Mrs --X--". She then identified her connection with Mr X, referred to an illness from which he suffered and then said although he "is not an ALP branch member, other members of the family are". The applicant said Ms Harrison then said to her "Anne I'm sure you will have a lot to discuss" and then left, after giving the Regional Director the red folder. 117 The Regional Director swore an affidavit in the proceedings and was cross-examined. He denied that any such suggestions were made to him by Ms Harrison. He made the point that in 1994 he had been recently appointed Regional Director for the Western Sydney region of the Department of Housing, having been promoted to that position from one of Regional Manager in a country region. He deposed that during the first 12 months of his appointment: I was concerned to ensure that all members of Parliament in the western Sydney region were aware of the full range of client services and resources of the Department of Housing and the capacity of the Department to review its administrative decisions in the event of emergent circumstances which constituents would periodically raise with the Local Member or their electorate staff. 118 The affidavit continued: There are always more applicants for housing than there is available housing. Even though applications are normally considered in the order they are received (known in the Department as a "wait turn" basis), the Department has a social safety-net obligation to give priority to homeless people in crisis and those fleeing domestic violence and like crises. During 1994 and 1995 I accordingly contacted the following members of Parliament in the Western Sydney Region; Gabrielle Harrison at Parramatta, Richard Amery at Mount Druitt, Jim Anderson at St Marys, Paul Gibson at Londonderry, Kim Yeadon at Granville, Pam Allen at Seven Hills and Faye Lo Po at Penrith, Dianne Beamer at Mulgoa, Kevin Rozzoli at Windsor and others. My meetings with those members of Parliament were on an informal basis and my purpose was to establish an effective liaison between their electorate officers and the Department of Housing and also to outline the administrative review process if those members of Parliament, or their electorate officers, were ever of the view that Department of Housing had severely disadvantaged any of their constituents in its operational decisions. In late 1994 I did visit the Parramatta electorate office with the then Parramatta area manager of the Department, Garry Wilson. After individual introductions, Gabrielle Harrison said to me words to the effect of:- We are still getting the office organised. Why don't we go up the road and have a chat over coffee? Ms Harrison and her two new electorate staff came to the coffee shop. Her two staff were introduced to me as Jill Raines and Anne Stonham. I have no recollection of Gabrielle Harrison carrying a red folder to that meeting. 119 The Regional Director indicated that he was contacted by Mrs Stonham directly on about five or six occasions, on each of which he referred her inquiry to the Parramatta Area Manager with words to the effect: We have been asked by the Parramatta Electorate Office to review this matter. Could you please look into it. 120 He said the Parramatta Area Manager then checked the administrative decisions for any material errors and that he could not recall the outcome of those individual reviews. He deposed also to the following: The Department did its best to assist the Parramatta electorate office with "needy and worthy cases". I deny that I ever authorised any priority being given to any constituent in a housing application on the basis that that person was a "labor party member" and equally have no knowledge of anybody at the Western Sydney region of the Department acting in the unethical manner alleged by Ms Stonham. During the period 1994 to 1998 I met Gabrielle Harrison on approximately 3 to 5 occasions at functions in the Parramatta area. I spoke to Gabrielle Harrison on the phone no more than 3 to 4 times during that period. I had meetings and telephone conversations more often than that with several other members of Parliament in the Western Sydney region in resolving constituent or other Departmental matters that they raised including housing applications, tenancy matters and new development proposals. I have never promised Gabrielle Harrison, Anne Stonham or anybody else that the Department of Housing could ever deliver services in any way other than in good faith and entirely in accordance with Department of Housing policy and procedures. 121 Firstly, having closely observed the witness in the course of his evidence, I have to say that I regard his evidence as completely believable and I accept it. 122 There are a number of other matters which ought be said about this allegation. The first is that it would be astounding if a newly-elected Member of Parliament of relatively inexperience suggested at the first meeting with a senior public servant, and in company with others, that he engage in an act of corruption. Ms Harrison did not appear to me to be a person who would engage in such an obviously foolhardy act. Further, the allegation that the Regional Director was complicit in the proposal is entirely inconsistent with his later conduct in processing Ms Harrison's and Mrs Stonham's requests of the Department. 123 Mrs Stonham's reaction to the contradictory evidence lined up against her in this respect was that the other participants in the conversation were lying, a view which I reject readily. It must be recorded that the fact of the occurrence of the alleged critical conversation was not put to the Regional Director in cross-examination. This matter must fall to the ground, like virtually every other allegation, as one not only completely without corroborative support but one which cannot be accepted on the evidence as the truth of the matter. 124 The next issue I deal with is the visit by Mrs Stonham to a health farm in the latter half of 1997. According to the evidence of Inga Sheil, who accompanied Mrs Stonham at the latter's request, the purpose offered by Mrs Stonham was to assist her to reduce her dependence upon alcohol and drugs. Ms Sheil's position was that she, having recently returned from holidays, did not have any money or any real desire to attend the farm but did so to support Mrs Stonham, who lent her the money to cover its cost. 125 Mrs Stonham's reasons for attending the health farm were put by her this way: My problems with alcohol or not really at the time my alcohol but drug abuse at that time. I was self medicating and I was sick and I went there. 126 Ms Harrison said in cross-examination about her being informed by Mrs Stonham of the health farm visit: Q. What did she say to you? A. She said she needed to go to a health farm because she was having some problems and she just needed to go there. She wasn't at that stage as close to me as she had been, so she didn't elaborate, but I had noticed that she was having problems so I told her to take two weeks not one. Q. Two weeks? A. Yes. Q. Two weeks recreational leave? A. Two weeks of health farm that I said she should have. She said she was going to have a break. Q. Is that all you did, just said she could go? A. Yes, I tried to make sure that, I mean the problems that I saw her having weren't with the office, I thought they were with her home life, so I just tried to reduce the workload as much as I could. 127 It was suggested to Ms Sheil in cross-examination that she attended the health farm at Ms Harrison's direction for the purpose of keeping an eye on her and being able to tell Ms Harrison what Mrs Stonham was talking about at the health farm. Mr Matters firstly sought to establish that Ms Sheil was "paid by the State" for the purpose of attending the health farm - in fact it was paid time off in lieu of unpaid overtime, in accordance with the usual practice. Ms Sheil then said that, upon her informing Ms Harrison that she would not be in the office but would be going to the farm with Mrs Stonham, Ms Harrison said "Look after Anne". The evidence continued: Q. So, she said to you, "Look after Anne". You took that as a direction from the person you were working for? A. No, I didn't take it as a direction from the person I work for, I took it as advice from a friend regarding a mutual friend. Q. So, what did you take it to mean, "Look after Anne"? A. Support her. Q. You went there to keep an eye on her, didn't you? A. No. Q. So, you went there to listen to what she was saying and what she was talking about? A. Absolutely not. Q. You went there on the basis of reporting back to the Minister about what was said? A. No, and in fact I never spoke to the Minister about what was said. 128 Upon the assumption that Mr Matters' questions to Ms Sheil were put on instructions, this is just one more example of how a negative, if not malicious, interpretation was put by the applicant upon events having another perfectly rational explanation. 129 After being asked why she did not speak later to Ms Harrison about Mrs Stonham's conduct at the health farm she said: A. As I say, I was - in fact I did not even talk to my own family about what had been said. I discussed it with - I was so distressed, had I had had more time perhaps I would have formulated an appropriate response to what happened. I didn't, this was in - it was not very long before Anne had left the office. I had no chance to assess and respond, I was personally very distressed. Q. You have given that evidence about your own distress but why did you choose not to tell Ms Harrison? A. Because I wanted to defend Anne. Q. Why would you need to defend Anne if you told Ms Harrison that she was disillusioned? A. Because I was not going to be seen to undermine someone I regarded as a close personal friend. I was not going to - I had someone who I loved dearly and yes, this is the only way I can describe my relationship with Anne, I thought the absolute world of her and here she was attacking someone who I respected and admired. I did not know which way to turn, I did not know who to take it to, I did not know how to respond in an appropriate manner, I felt that the ground had been cut from underneath my feet. . . . . Q. You must have had some notion that Mrs Stonham was in some difficulties personally? A. All the entire time I had known her she had consumed large amounts of alcohol and she had taken, you know, she had popped pills. As far as I knew it did not - it was - she was rational up to that point, she was rational up to the point like suddenly it was like watching someone hurdle off the tracks, you know. How do you respond to that? Q. Why did you feel the need to protect her from Mrs Harrison? A. I never said I felt the need to protect her from Mrs Harrison, I felt the need to protect her in general. I felt the need to until she had sorted through whatever she was sorting through or until she was back on the tracks I was not going to discuss what she had told me with anyone. It was not a conscious decision to protect her from Gabrielle, it was as much as I took a decision, it was to protect her from herself virtually. 130 Later Ms Sheil described a telephone call she had with the applicant after having heard that the latter was ill. She said: A. I was physically shaken. I can only akin it to being gutted. It was amiable enough. We said: When all this is over we will get together. She made it clear to me it was not a personal issue between herself and myself it was a personal issue between herself and Gabrielle. I just put the phone down and had the shakes. That was almost a cathartic moment for me because it had gone beyond the pale. I was in a situation where I didn't understand. Where I felt out of my depth. The anger she had. The emotional personal hatred was something I absolutely shrunk from. 131 Subsequently, after referring to the matter as "this absolutely farcical case", Ms Sheil was asked: Q. You regard this as a farce? A. I regard these allegations against Gabrielle as a farce, absolutely. Q. Why? A. Because Gabrielle Harrison is the most - the suggestion that she conducted herself in the way that she has been charged with conducting herself is absolutely totally unadulterated rubbish. I was there for the whole term of her office. 132 In view of these conclusions on the facts, it is inevitable that the applicant must fail in respect of each head of her claim. It is, in my opinion, impossible to conclude that there were features of the applicant's contract of employment and the conditions under which it operated, including the conduct of the Speaker viz a viz electorate office staff in general and the applicant in particular, and the conduct of Ms Harrison, which could justify a finding of unfairness in the sense required by s106 of the Act. In these circumstances, I dismiss the application. In the ordinary case, costs should follow the event. I will hear the applicant on the issue of costs if any different course is to be urged upon the Commission. In the absence of any request within 21 days for a listing on that issue, I would order that the applicant pay the respondents' costs as agreed or assessed. 133 Subject to the matter of costs, I would order that the application be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.