Abrahams v Telstra Corporation Ltd
[1995] FCA 717
•4 SEPTEMBER 1995
CATCHWORDS
WORKER'S COMPENSATION - Commonwealth employees - effect of the transitional provisions of the Safety Rehabilitation and Compensation Act 1988 where liability to pay compensation arising under the former legislation is in issue - examination of Tribunal's reasons for decision - whether the Tribunal's use of the term "incapacity" in affirming the determination that the applicant's "injury" was not employment related led it into error - whether a former employee has a right to be assessed for capability to undertake a rehabilitation program.
Safety Rehabilitation and Compensation Act 1988 ss36(1), 62, 124(1A), 127(2) and 132(2A)
Compensation (Commonwealth Employees) Act 1971
Brennan v Comcare (1994) 50 FLR 555
Telstra Corporation Limited v Warner (1994) 20 AAR 259
Politis v Federal Commissioner of Taxation (1988) 16 ALD 707
CORAL DOREEN ABRAHAMS v TELSTRA CORPORATION LIMITED
No VG 349 of 1993
FINN J
MELBOURNE
4 SEPTEMBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 349 of 1993
)
GENERAL DIVISION )
BETWEEN: CORAL DOREEN ABRAHAMS
Applicant
AND: TELSTRA CORPORATION LIMITED
Respondent
COURT: FINN J
PLACE: MELBOURNE
DATE: 4 SEPTEMBER 1995
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The decision of the Tribunal be affirmed.
The appeal be dismissed with costs.
Note:Settlement and entry or orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 349 of 1993
)
GENERAL DIVISION )
BETWEEN: CORAL DOREEN ABRAHAMS
Applicant
AND: TELSTRA CORPORATION LIMITED
Respondent
COURT: FINN J
PLACE: MELBOURNE
DATE: 4 SEPTEMBER 1995
REASONS FOR JUDGMENT
The Amended Notice of Appeal in this matter would tend to suggest that the errors of the Administrative Appeals Tribunal (the "Tribunal") were many and varied. It lists 9 points of law and 13 grounds of appeal. Needless to say the appeal as argued in this Court betrayed a somewhat different appreciation of the Tribunal's decision. Only three matters were the subject of contention and each is of narrow compass.
The principal of these concerned the manner in which the transitional provisions (Part X) of the Safety Rehabilitation and Compensation Act 1988 (the "1988 Act") affect the making of a determination that liability no longer exists to make
compensation payments to a person claiming to be a "former employee" within the terms of Part X, that liability having previously been accepted under the Compensation (Commonwealth Employees) Act 1971 (the "1971 Act").
The other two matters related first to the sufficiency in law of the findings made by the Tribunal in respect of one of the two applications made to it; and secondly to whether, under the 1988 Act, a former employee has a right to be assessed for capability to undertake a rehabilitation program under s36(1) of that Act.
Factual Background
In 1976 the applicant, who was in the employment of the then Postmaster General's Department, sustained an injury to her left knee in circumstances unrelated to her employment. The pain and difficulties she experienced resulted a year later in her undergoing a patellectomy of the left knee. In 1981, while descending a flight of stairs in the course of her duties, the applicant suffered a fall which occasioned injury to her right knee. She then sought and obtained a determination under the 1971 Act that she was entitled to the payment of compensation for that injury which was diagnosed as traumatic synovitis of the right knee. Successive medical reports finding no significant improvement in the right knee condition, the applicant was retired on grounds of invalidity in 1982.
She was in receipt of compensation payments until 27 May 1992 when the delegate of the then Australian and Overseas Telecommunications Corporation (A.O.T.C.) determined that, in respect of her right knee, Telecom was not liable to award compensation payments to her on and from 1 November 1991. That determination was affirmed by a reconsideration delegate of A.O.T.C. on 24 July 1992. That affirmation constitutes the first reviewable decision in this matter. Review of it by the Tribunal was sought on 11 August 1992. The basis of that reviewable decision was that no incapacity for work resulted from the knee injury from that date. There was medical evidence, backed by surveillance evidence (videos), to support this conclusion.
In August 1992 the applicant served a new claim for compensation on A.O.T.C.. Its basis was that she had suffered an injury to her left knee caused by additional stress placed on that knee because of the injury to her right knee. On 12 October 1992 it was determined by a delegate of A.O.T.C., and on 6 November 1992 it was affirmed by a reconsideration delegate of A.O.T.C., that A.O.T.C. was not liable to pay compensation in respect of the left knee claim. The reasons given for the 12 October 1992 determination were that:
"(a)The injury to the left knee did not arise out of or in the course of your employment with Telecom, nor was it contributed to in a material degree by your employment with Telecom.
(b)Any injury you may have to your left knee does not incapacitate you for your former employment with Telecom."
The affirmation of 6 November 1992 provides the second reviewable decision in this matter. Review of it by the Tribunal was sought on 12 November 1992.
Distinct from the above two decisions was the issue between the parties as to whether the applicant should be assessed to undertake a rehabilitation program. The circumstances surrounding the claim made in this matter needs to be outlined in some detail. The 1988 Act s36(1) provides that:
"Where an employee suffers an injury resulting in an incapacity for work ..., the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program."
It is the "right" of the applicant created by this section which is in dispute between the parties.
Having been informed in March 1992 that her entitlement to compensation in respect of the right knee injury was under review, on 8 April 1992 the applicant requested A.O.T.C. to make arrangements for a s36(1) assessment. When the initial right knee determination was made on 27 May 1992, the applicant was informed by the letter accompanying that determination that Telecom had no s36(1) obligation in relation to her. The formal determination itself related only to the right knee claim. It did not advert to the matter of the assessment.
The applicant's request under the 1988 Act, s62 for a reconsideration of the formal determination under the 1988 Act, s62 indicated as well that she considered the letter refusing the request for an assessment for rehabilitation "as being a determination ... pursuant to s36". She sought a reconsideration of that determination. The formal determination was affirmed and communicated to the applicant by letter on 24 July 1992. A separate letter to her of the same date indicated that, in relation to her request for a reconsideration of the "decision" as to the assessment for rehabilitation, the "decision not to organise a rehabilitation assessment ... was not ... a determination made pursuant to s37(1) [sic] of the Act".
In her application to the Tribunal dated 11 August 1992, the applicant appears to have persisted in the view that the separate letter of 24 July 1992 relating to the assessment for rehabilitation constituted a "reviewable decision". Accordingly review of it seems to have been sought. In the reasons given by the applicant for the application it was said (inter alia) that:
"...
on the evidence before the Delegate he should have determined:
...
(b)(i) [The applicant] is entitled to the benefits of Part III [the rehabilitation provisions] of [the 1988 Act].
(ii)[The applicant] be assessed pursuant to section 36(1) of the said Act
..."
In this state of stand-off between the applicant and the respondent, the respondent on 28 August 1992 arranged an assessment for the applicant and notified her to this effect. It did, however, reiterate its view that it was under no legal duty so to do but had made the arrangement in the interests of trying to finalise her claim. That assessment was conducted on 3 September 1992.
The Tribunal Decisions
The Tribunal affirmed both reviewable decisions after a lengthy review of the claims. The determinations were founded, primarily, on the medical evidence (oral and written) and on a number of surveillance videos which disclosed a facility to move and to perform actions which were inconsistent with what the applicant asserted were her capabilities. Insofar as the determination relating to the right knee was concerned, the Tribunal found at paragraph 72 of its reasons for decision dated 27 July 1993 (the "Tribunal's Reasons") that:
"while the injury was work-related, no incapacity for work has resulted from the injury to that knee since 1 November 1991."
In the appeal before this Court it was not contended that the evidence before the Tribunal could not justify this conclusion. The objection taken on the appeal, as I will
indicate, was that the finding was inappropriate to the question before the Tribunal because of the effect of the transitional provisions of the 1988 Act on a liability to pay compensation which arose under the 1971 Act.
The second reviewable decision in respect of the left knee was dealt with in the Tribunal's Reasons at para 71 as follows.
"71.From the material before us and the oral medical evidence given at the hearing, we find that the applicant has a permanent disability in her left knee. The disability arises out of the patellectomy performed on that knee in 1977, an operation being necessary because of severe chondromalacia patellae. We are not satisfied, on a balance of probabilities, that any incapacity due to the left knee disability is in any way related to the applicant's employment with the respondent. We are further satisfied that any incapacity arising from the left knee disability does not incapacitate the applicant for her former employment with the respondent."
The objection taken to this is that in its focus on "incapacity" it does not provide an adequate or sufficient basis for affirming the reviewable decision's determination that the applicant's "injury" neither was employment related nor was it contributed to in a material degree by the employment.
Insofar as the third issue in this appeal is concerned - the right to an assessment for rehabilitation - the Tribunal made no finding or determination on the matter at all. But the Tribunal's Reasons, as will be seen, acknowledged that this matter was in issue between the parties.
The Issues on this Appeal
The first reviewable decision, the claim to compensation payments in relation to the right knee injury and the effect of the transitional provisions of the 1988 Act.
The contention of the applicant can be put briefly. Because the applicant's entitlement to compensation arose under the 1971 Act, it was submitted her claim for weekly compensation payments was to be determined under the Part X transitional provisions of the 1988 Act. Those provisions, it was submitted, had the following effect.
First, the applicant fell within the definition of a "former employee" in s123 of the 1988 Act. That definition provides:
" "former employee" means a person who, immediately before the commencing day, was receiving weekly payments of compensation under the 1971 Act in respect of an injury resulting in an incapacity and had ceased to be an employee within the meaning of that Act before that day."
Secondly, in terms of s132A(1) of the 1988 Act, the applicant was "a former employee who was under the age of 65 and who was capable of earning an amount per week in suitable employment." In consequence, her entitlement to compensation (if any) was to be determined in accordance with the other subsections of s132A. Reference in this regard was made to the decision of Heerey J. in Telstra Corporation Limited v Warner (1994) 20 AAR 259.
Thirdly, in failing to deal with the matter in accordance with the terms of s132A, the Tribunal addressed the wrong issue. Rather than (a) asking whether the applicant was "capable of earning an amount per week in suitable employment" and then (b) taking into account the amount she was so able to earn in computing such compensation as was properly payable to her (as s132A ordains), the Tribunal concerned itself, erroneously, with the question whether she suffered "incapacity for work resulting from her injury". That question was one which would have arisen under the 1988 Act had her initial claim been made under that Act. But the claim having been made under the 1971 Act, the transitional provisions of the 1988 Act were the applicable ones.
The respondent's counter-submission was that while the applicant's entitlement to compensation arose under the 1971 Act, the provisions of s132A were irrelevant to the issue determined in the first reviewable decision.
That issue was not the amount of compensation to which the applicant was entitled because of an accepted or determined liability to pay compensation. Rather it was whether there was any liability at all so to pay. Section 132A it was submitted, is concerned only with the former of these questions. It presupposes the liability to pay compensation and provides for the computation of the amount (if any) that is to be paid. Whether or not a liability to pay compensation existed in relation to the applicant was a question that fell to be determined under other provisions of the 1988 Act. To the extent that the transitional provisions had any relevance at all, this was for the purpose of indicating that the ordinary provisions of the 1988 Act were the applicable ones in the circumstances.
In Brennan v Comcare (1994) 50 FCR 555 at 562, Gummow J characterised the effect of Part X's transitional provisions in the following terms:
"The provisions are transitional in a particular way. They are not concerned with the preservation of the old legislation in respect of rights and liabilities accrued thereunder. Rather, they deal with the creation and substitution from their commencement of new rights in respect of past events."
In relation to the question of the respondent's continuing liability to the applicant, the operative transitional provision having the effect Gummow J described was submitted to be s127(2). This provides:
"(2)Any determination made or action taken by the Commissioner for Employees' Compensation under the 1930 Act or the 1971 Act and having effect immediately before the commencing day, being a determination or action in respect of the liability of the Commonwealth to pay compensation or make any other payment to a person under the 1930 Act or the 1971 Act, as the case may be, shall be taken to be a determination made by the relevant authority under this Act in respect of the corresponding liability of that relevant authority to pay compensation or make a similar payment under this Act to that person."
Taking this provision as its base, the respondent's argument proceeded as follows.
First, the original determination under the 1971 Act, s45 which gave rise to liability to pay compensation (made on 16 December 1981) was now to be taken as a determination under the 1988 Act, the equivalent of s45 in that Act for present purposes being s19. This section being reached via sections 4(8), 4(9) and 14(1) of the 1988 Act.
I would note of this in passing that no reference was made here in argument to s124(1A) of the 1988 Act. Paragraph s124(1A) provides, relevantly, that:
"Subject to this Part, a person is entitled to compensation under this Act in respect of an injury ... suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury ... under ... the 1971 Act."
I would assume the omission to refer to this stemmed from the view, correct in my opinion, that this sub-section does not of itself determine the issue of whether in the present claim the respondent in fact was liable to pay compensation to the applicant in respect of the right knee injury. The following proposition indicates why this is so.
Secondly, as there was available evidence that the applicant's injury no longer resulted in incapacity for work - and this was the relevant trigger to liability for the purposes of the award of compensation payments under both s19(1) of the 1988 Act and s45 and s46 of the 1971 Act - the liability to make such payments in respect of her injury terminated. The decision of Hill J in Casarotto v Australian Postal Commission (1989) 86 ALR 399 was relied upon to demonstrate that liability can terminate in this way. That was a decision under the 1971 Act.
Thirdly, it was in such circumstances open to the delegate of the respondent acting under the 1988 Act s61(1) to make a determination that the respondent was no longer liable to award compensation payments to the applicant. I add here by way of note that it was conceded by the respondent, in the course of the appeal, that this determination denying liability to award "compensation" did not include any determination as to liability for medical expenses under the 1988 Act, s16.
Fourthly, when its decision is considered in the above light the Tribunal committed no error in disregarding s132A. The decision it had to make related to the respondent's liability in any event to make weekly payments and this required it to determine whether the applicant's injury continued to result in incapacity for work. There being appropriate evidence before the Tribunal to sustain the Tribunal's finding on this point its decision in this regard betrays no error of law.
The decision of Heerey J. in Telstra Corporation Limited v Warner (1994) 20 AAR 259 constitutes an apparent barrier to acceptance of the respondent's submissions which, in my view, steer a correct course through the provisions of the 1988 Act. The barrier is, however, only an apparent one as Warner is readily distinguishable. There was no dispute in that case as to whether the applicant was entitled to compensation. The dispute was only "as to which provisions of the 1988 Act [applied] to the calculation of Mr Warner's compensation": Warner's case at 260-261. In this state of affairs, the transitional provisions of s132A were the proper ones then to apply to the calculation of compensation.
In contrast, this appeal is concerned not with calculation of compensation where entitlement is admitted, but with the prior question of the respondent's liability and the applicant's corresponding entitlement. Warner's case would only be of assistance to the applicant if that question was decided favourably to her. As I have indicated above the respondent's submissions correctly indicate the manner in which the provisions of the 1988 Act apply to the applicant given the issue raised against her. Section 132A cannot be brought into play in resolving her claim because the respondent was not, in the circumstances, liable to award compensation to her. In consequence I find no error on the Tribunal's decision on this matter.
The adequacy of the finding in relation to the left knee injury
The submission of the appellant here is that, while the Tribunal has affirmed the reviewable decision relating to the left knee, it did not in its reasons review that decision but rather made a finding which provided no sufficient or adequate basis for affirming the reviewable decision. Para 71 of the Tribunal's Reasons for Decision have been quoted in full earlier in these reasons. Suffice it to say here that, while the reviewable decision concluded (inter alia) that the left knee "injury" did not arise out of or in the course of applicant's employment, nor was it contributed to in a material degree by that employment, the paragraph which is said to encapsulate the Tribunal's findings on the matter (i.e. para 71) refers rather to there being no "incapacity due to the left knee disability [which] is in any way related to [her] employment with the respondent".
Much was made of the difference between the words "injury" and "incapacity" which I have emphasised. It was submitted, for example, that while the reviewable decision would preclude the applicant from obtaining medical expenses under the 1988 Act, the paragraph 71 finding standing alone would not. This was because entitlement to medical expenses, while requiring an employment related injury, does not require any finding of incapacity for work.
It has been said on some number of occasions in this Court that, when considering the adequacy of the Tribunal's reasons for decision, the proper stance to adopt is one of balance and restraint: see eg Politis v Federal Commissioner of Taxation (1988) 16 ALD 707. That stance is particularly appropriate in this instance.
The Tribunal's Reasons -
(a)set out in full the precise terms of the determination of 12 October which gave rise to the reviewable decision of 6 November 1992: Tribunal's Reasons, para 5;
(b)particularised the basis of the left knee claim for compensation, relating this specifically to her employment with the respondent: Tribunal's Reasons, para 44;
(c)noted that the issues of injury and incapacity were the two basic ones before the Tribunal: Tribunal's Reasons, para 49;
(d)noted the applicant's contention that the left knee injury was either aggravated or accelerated by, or was a sequelae to, the right knee injury: Tribunal's Reasons, para 51;
(e)set out in its own language again the substance of the determination in the reviewable decision and in so doing stated its findings (i) that the injury did not arise out of, nor was it materially contributed to by her employment; and (ii) that the injury did not incapacitate her for her former employment: Tribunal's Reasons, para 55; and
(f)in the paragraph immediately preceding paragraph 71, set out at length the report and supplementary report of a medical specialist which together contained the conclusions (i) that there was no connection between the two knee injuries; and (ii) that the left knee injury was not aggravated or accelerated by her employment; Tribunal's Reasons, para 71.
It was in the context of reasons so structured and with the substance of the reviewable decision so identified that the Tribunal made its findings set out in paragraph 71. Viewed in isolation from the rest of the body of the Tribunal's Reasons, those findings could be interpreted in the manner suggested by the applicant. Viewed against the background I have described, those findings can be said in my view to represent the response of the Tribunal to the issues to which the left knee claim and determination gave rise. As I have noted, on four separate occasions the nature and basis
of the claim and of the determination were referred to specifically in the Tribunal's Reasons.
Considered in this light the paragraph 71 findings can in my view properly be said both to address the correct issue of whether, and to embody a finding - (albeit infelicitously expressed) that, the left knee injury was not in any way related to the applicant's employment. The disability to the left knee itself was earlier found in the same paragraph to be attributable to the 1977 patellectomy. The infelicity in expression is due in part, it would seem, to the Tribunal's use of the word "disability" where the delegate making the reviewable decision used the term "injury".
I am in the event unprepared to find that the Tribunal's Reasons when considered in their totality reveal that the Tribunal did not adequately answer in its findings the issue raised by the reviewable decision, that issue having been clearly identified in the Tribunal's Reasons. Accordingly I reject this ground of appeal.
The rehabilitation assessment
The rehabilitation assessment, in a sense, is the most perplexing part of this appeal. The chronology of this matter given earlier in these reasons has been drawn, substantially, from the Tribunal's own reasons: see Tribunal's Reasons paras 40, 41, 43, 45 and 48 ( which sets out the terms of s36(1) of the 1988 Act). To the extent that the Tribunal in those reasons gives any recognition to the fact that the question of a rehabilitation assessment is an issue for it - and the issue, as I have noted, was raised explicitly in the application to it for review - it is in paragraph 54 of the Tribunal's Reasons. Before setting that paragraph out in full I would note that there is some apparent confusion both in the reasons and, possibly, in the delegate's correspondence with the applicant as to whether the section relevant to a rehabilitation assessment was s36(1) or s37(1), only the former of these provisions appearing in terms to confer a right to a rehabilitation assessment on persons falling within it. As I will indicate below, such confusion as there may be in this is of no particular moment.
Paragraph 54 of the Tribunal's Reasons is in the following terms:
54.As we have earlier indicated (paragraph 43 above), on 24 July 1992 the respondent advised the applicant that the decision not to organise a rehabilitation assessment of the applicant was not a determination made pursuant to section 37(1) of the 1988 Act. During his closing address, however, Mr Spittle went to considerable lengths in submitting that a formal rehabilitation assessment had been organised. This, we note, was not denied by the respondent. What was contended by Mr Wallace for the respondent, however, was that there is no evidence before the Tribunal providing a reviewable decision in respect of section 37 of the 1988 Act.
Such subsequent allusions as are made in the reasons to rehabilitation assessment refer either to the actual assessment that occurred on 3 September 1992 or to events associated with that assessment: Tribunal's Reasons paras 63 and 67.
What seems clear is that the Tribunal did not consider that it had before it a decision concerning the request for a rehabilitation assessment which it was required to review. Thus no finding was made in relation to this matter. Nonetheless the question of the applicant's right to an assessment was argued in this appeal.
It is the case that an assessment was in fact provided and the results of that assessment were available to, and utilised by, the Tribunal. Despite this, the applicant in effect seeks a declaration from this Court that, as a former employee, she is entitled to a rehabilitation assessment under s36(1) and, subject to s37(1), to a rehabilitation program. The terms of s36(1) have been set out earlier in these reasons. Though the subsection refers to an "employee" requesting an assessment, the applicant submitted that she was entitled to avail of the right the section confers (a) because of the 1988 Act, s5(9); and (b) because of the purpose of the rehabilitation provisions as evidenced in the long title to the Act, and as confirmed in the second reading speeches on the Bill for this Act in both the House of Representatives and the Senate. I should note that s5(9) provides that:
"A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee."
The respondent, in contrast, submitted first that the respondent had no entitlement to be assessed under s36(1). The reasons for this were (a) that she had never been an employee of Telstra (the "licensed authority") and for this purpose prior employment with A.O.T.C. was of no account; and (b) in any event, the provision only was available to employees and not former employees despite s5(9). Secondly, it was submitted that even if she was entitled to an assessment, as requested, she had been provided with one. It would in consequence be futile for this Court to make any order relating to that request irrespective of whether the respondent was or was not correct in the view it took of its alleged obligation to pay an assessment.
The first and most obvious point to be made is that the issue as to whether the applicant has an entitlement to a rehabilitation assessment is one that has not been considered at all either by the delegates or by the Tribunal in reaching what they seem to have considered were the respective decisions they were called upon to make. As I have noted already it is not, in consequence, the subject of findings or reasons by the Tribunal. In this state of affairs if I were to conclude that a reviewable decision in relation to this matter was nonetheless before the Tribunal, the question might well arise as to whether it should be remitted to the Tribunal for hearing and determination in this regard: cf Administrative Appeals Tribunal Act 1975, s44(5). At best, though, that hearing could only relate to the "decision" made in response to the request of 8 April 1992 for an assessment. That assessment, though not provided as of right as the applicant insisted it should be, occurred on 3 September 1992. In these circumstances it is in my view unnecessary to decide whether in fact there was a reviewable decision concerned with assessment before the Tribunal. This is because it would be futile for this Court to make any order remitting to the Tribunal the "decision" made in respect of the 8 April request for an assessment. It would have been similarly futile for the Tribunal itself to have decided, in reviewing the "decision" of the delegate, that an assessment should take place. An assessment had already been conducted, a matter which the Tribunal acknowledged in its reasons. Given the circumstances confronting it, and having regard to the fact that the assessment was arranged after the application for review had been made, the Tribunal's own decision could have had no influence on whether or not an assessment was held.
There does, of course, remain the more general question whether the applicant is entitled to claim the benefit of s36(1) in the future. I refrain from expressing any opinion on that matter. It is open to her to make a request under s36(1) at any time. If that request is refused then the 1988 Act itself provides a scheme for review of that particular determination, a scheme which can lead to the Tribunal and ultimately to this Court. But in such a case there will be a decision directed to the particular matter and reasons for that decision. Furthermore, there will be a decision in relation to which a determination having "real practical significance" for the parties can be made: cf La Roche v Cormack (1991) 33 FCR 414 at 416.
I affirm the Tribunal's decision. I dismiss the appeal with costs.
I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 4 September 1995
Counsel for the applicant : Mr T P Tobin
Solicitors for the applicant : McMullin Coate and Co
Counsel for the respondent : Mr J R Wallace
Solicitors for the respondent : Home Wilkinson and Lowry
Date of hearing : 31 July 1995
Date of judgment : 4 September 1995
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