Agnew v Secretary Department of Social Security

[1999] FCA 837

FEDERAL COURT OF AUSTRALIA

Agnew v Secretary Department of Social Security [1999] FCA 837

SOCIAL SECURITY – constructive trust – findings of facts – consequences of those findings – intention of the parties – value of disposition

PARTNERSHIP – terms of dissolution – existence and nature of partnership debt – amount of debt owing by claimants

Social Security Act1991 (Cth) s 11(1) s 1123, s 1124,

Kintominas v Secretary, Department of Social Security (1991) 23 ALD 572 referred to
Kidner v Secretary, Department of Social Security (1993) 31 ALD 63 referred to
Giumelli v Giumelli (1999) 161 ALR 473 followed
Muschinski v Dodds (1985) 160 CLR 583 applied
Baumgartner v Baumgartner (1987) 164 CLR 137 applied

DEAN HOWARD AGNEW AND ROSEMARY RUTH AGNEW v SECRETARY, DEPARTMENT OF SOCIAL SECURITY

NO SG 105 OF 1998

O’LOUGHLIN J
23 JUNE 1999
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 105 OF 1998

BETWEEN:

DEAN HOWARD AGNEW
First Applicant

ROSEMARY RUTH AGNEW
Second Applicant

AND:

SECRETARY, DEPARTMENT OF SOCIAL SECURITY
Respondent

JUDGE:

O’LOUGHLIN J

DATE OF ORDER:

23 JUNE 1999

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The decision of the Administrative Appeals Tribunal be set aside.

2.The matter be remitted to that Tribunal for further consideration in terms consistent with these reasons.

3.The respondent pay the costs of the applicants which costs are to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 105 OF 1998

BETWEEN:

DEAN HOWARD AGNEW
First Applicant

ROSEMARY RUTH AGNEW
Second Applicant

AND:

SECRETARY, DEPARTMENT OF SOCIAL SECURITY
Respondent

JUDGE:	O’LOUGHLIN J
DATE:	23 JUNE 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicants in these proceedings are Dean Howard Agnew and his wife, Rosemary Ruth Agnew.  The issue that has brought this matter before the Court is whether they, or either of them, are entitled to an age pension.  The relevant facts are not in dispute and what follows is a summary that has been extracted from a statement of agreed facts.

2. Each of them lodged a claim for an age pension with the Department of Social Security (“the respondent”) on 23 May 1996.  However, both claims were rejected by a delegate of the respondent on 6 September of that year.  The basis for the rejection was said to be that the assets of Mr and Mrs Agnew exceeded the allowable maximum.

3. On 17 September 1996, Mr and Mrs Agnew lodged an appeal against the rejection of their applications.  The initial decision was reviewed but it was confirmed on 11 October and again on 16 October 1996.

4. On 6 January 1997, Mr and Mrs Agnew appealed to the Social Security Appeals Tribunal.  Again they were unsuccessful.  On 13 March 1997, that Tribunal affirmed the earlier decision.  On 9 April they appealed to the Administrative Appeals Tribunal (“the Tribunal”) but their appeal was dismissed on 8 July 1998.  They have now appealed to this Court.

5. Prior to September 1995, Mr Agnew had been the registered proprietor of certain farming land known as “Rosedene”.  Since the late 1970’s, he, his wife and their three sons, Peter, Andrew and Stephen, had carried on business in partnership as farmers and graziers on that farming land, even though the land was not an asset of the partnership.

6. As at 30 June 1995, the partnership was indebted to Austrust Ltd in the sum of $371,105.60.  The repayment of that debt was secured, in part, by a registered mortgage over Rosedene and, in part, by Mr and Mrs Agnew’s personal guarantees.

7. The partnership was dissolved by mutual consent on 1 July 1995 upon terms that allowed for the retirement of Mr and Mrs Agnew and the continuation of the farming and grazing business by the three sons in partnership.  Under the terms of a Deed of dissolution the continuing partners assumed liability for all debts of the partnership; they also agreed to indemnify their parents in respect of all partnership debts.  In return, Mr and Mrs Agnew’s shares in the partnership assets were vested in the three sons.

8. The parties further agreed that there would not be any adjustment between them in respect of their capital accounts.  It was an agreed fact that the financial accounts for the partnership as at 30 June 1995 showed that Mr Agnew’s capital account in the partnership was in debit at that date in the sum of $51,768.95 whilst Mrs Agnew had a credit account of $8,314.21.

9. On 19 September 1995, Mr Agnew entered into an agreement to sell Rosedene to Rosedene Nominees Pty Ltd.  That company was the trustee of the Rosedene Family Trust, a trust that had been created pursuant to a Deed of Trust of the same date.  The specific beneficiaries of the trust were the three sons, their spouses, their children and their remoter issue.  The sale price was $450,000 (which sum was accepted by the respondent as the fair market value of the land at that date).  Paragraph 25 of the statement of agreed facts is in the following terms:

   “On 19 September 1995 Dean Howard Agnew (as donor) signed a Deed of Release in respect of the Land Agreement (T5).  The Deed of Release stated that the purchase price for Rosedene was $450,000.00, and that the donee (Rosedene Nominees Pty Ltd) was taking over all liability for the existing mortgage on Rosedene in the approximate amount of $345,000.  The Deed of Release (T5/35) stated:

   “NOW the Donor hereby by way of gift and for no monetary consideration whatsoever FREES RELEASES AND DISCHARGES the Donee from the payment the said balance of purchase monies”.”

10. It was not disputed that when Mr Agnew transferred “Rosedene” to Rosedene Nominees Pty Ltd, he disposed of an asset within the meaning of the phrase “disposes of assets” in the Social Security Act1991 (Cth) (“the Act”). Subsection 11(1) of the Act states that “disposes of assets” has the meaning given by s 1123 and that section provides, so far as is relevant, as follows:

    “1123(1)For the purposes of this Act, a person disposes of assets of the person if:

    (a)the person engages in a course of conduct that directly or indirectly:

    …

    (ii)       disposes of all or some of the person’s assets; or

    (iii)      …; and

    (b)one of the following subparagraphs is satisfied:

    (i)the person receives no consideration in money or money’s worth for the destruction, disposal or diminution;

    (ii)the person receives inadequate consideration in money or money’s worth for the destruction, disposal or diminution;”

11. Section 1124 of the Act then deals with the quantification of the amount of the disposition. If a person disposes of an asset and receives no consideration, then the amount of the disposition is the value of the asset. Where, as here, the party, Mr Agnew, disposing of the asset (i.e. “Rosedene”) receives some consideration for the disposition, the amount of the disposition is the value of the asset “less the amount of the consideration received by the person in respect of the … disposal …”. The respondent is required to bring into account only the value of the beneficial interest which a person has in the property of which he or she is the legal owner: Kintominas v Secretary, Department of Social Security (1991) 23 ALD 572; Kidner v Secretary, Department of Social Security (1993) 31 ALD 63.

12. The issue that is in dispute between the parties is the value at which Mr Agnew’s interest in Rosedene is to be brought to account.

13. The following further facts, although not part of the statement of agreed facts, do not appear to be contentious.  Sometime in 1980 Mr and Mrs Agnew moved to Western Australia where Mr Agnew took up employment.  The three sons continued to work in the farming and grazing business.  Mr Agnew decided to leave the farm and move to the west because Rosedene was not large enough to support him and his wife as well as the three sons.

14. He said in evidence before the Tribunal that it was his intention to give Rosedene to his sons in 1980 but that “the cost of stamp duty at the time thwarted this plan”.  The Tribunal did not state expressly that it accepted this evidence but it did say that it accepted Mr Agnew as a witness of truth.  Subject to considering one qualification of the utmost significance that the Tribunal raised (see par 23 below) this evidence and the Tribunal’s acceptance of Mr Agnew as a witness of truth might have allowed for an inference to be drawn that this passage in his evidence represented a truthful statement of his intentions at the time of his departure for Western Australia.

15. The Tribunal then summarised Mr Agnew’s evidence which I also assume to be in the nature of formal findings by the Tribunal:

    “As from the time he moved to Western Australia, Mr Agnew chose to have nothing more to do with the running of the farm.  He gave evidence that management decisions were made without his approval and that his sons purchased property at Foul Bay, upgraded their plant and equipment and made many improvements to the land and fixtures in his absence without consulting him.  Mr Agnew said that when their expansion necessitated the taking out of a mortgage over Rosedene, he merely signed the necessary papers.  During this period, between 1980 and 1995, the farm continued to operate as a partnership between parents and sons and Mr and Mrs Agnew derived some taxation benefits from the partnership structure.  Further, Mr Agnew gave evidence that when he left the farm in 1980, around 500 acres was being cropped and that in the fifteen years until his return, this had increased significantly by virtue of improvements made to Rosedene by his sons, the purchase of further land and the expansion of their share-farming activities.”

16. The reasons of the Tribunal do not disclose the nature of the “taxation benefits” that Mr and Mrs Agnew derived from “the partnership structure”, although the Tribunal recounted a section of Peter’s evidence to the effect that Mr Agnew had not “drawn any profit from the farm or partnership while he was in Perth.”

17. When the partnership was formed, the business had an overdraft with its banker of about $5,000.  This overdraft had risen to about $6,500 in 1980 when Mr and Mrs Agnew left for Western Australia but Rosedene remained unencumbered.  It was only mortgaged subsequent to them leaving the farm.  Furthermore, the mortgage debt grew thereafter as it was used to obtain accommodation to purchase additional land and new equipment and to improve Rosedene by clearing stony non-arable land.  Although it is not expressly stated in the Tribunal’s reasons, it seems safe to assume that the additional land was purchased in the names of (or at least for the benefit of) the three sons while the new equipment might have been brought to account as assets of the partnership.  References in the reasons to expenditure for fencing and the erection of sheep-yards could relate to Rosedene or to the additional land.  As is so common in family farming partnerships, the parties are happy to pool resources in a practical and harmonious manner.  It is only when family disputes occur or when situations such as the present arise, that the lawyers and accountants have to take over and attempt to arrive at a solution that is fair and equitable.

18. The Tribunal found that, as a result of their efforts, the sons had cleared “stony fields” that “had made driving tractors much easier and ultimately increased the cropping capacity and yield”.  In fact, Rosedene’s arable capacity was increased from around 500 acres to 1,100 acres or thereabouts.  Those activities were regarded by the Tribunal as being for “the day to day running and year to year benefit of the sons’ farming enterprise”.  In my opinion, that finding, limited as it was to the benefits that had accrued to the sons, failed to take into account the fact, which can readily be inferred, that that same work would have added substantially to the capital value of the Rosedene land.  Even though the work may have benefited the sons by way of increased revenue, it had the potential, as well, to give benefit in the form of capital appreciation to the beneficial owner(s) of the land.  If, therefore, as has been maintained by the applicants, a constructive trust in respect of Rosedene for the benefit of the sons was established in 1980, it can be seen that any attempt to deprive the sons of their beneficial entitlement to the land would have caused them detriment.  In addition to these works, the sons also incurred costs in improvements to fixtures such as fencing, the erection of sheep-yards and, as the Tribunal found, “significant renovations of the residential dwelling on the property”.

19. In the hearing before the Tribunal, Mr Beazley, counsel for Mr Agnew argued that, as consequence of the events of 1980, an express trust, or, alternatively, a constructive trust, in favour of the sons had been established in respect of Rosedene.  The Tribunal rejected both these propositions and in their grounds of appeal Mr and Mrs Agnew now only pursued the existence of a constructive trust.

20. Before this Court, the applicants advanced two arguments.  In the first place they submitted that at or about the time that they moved to Western Australia, Mr Agnew “gave” Rosedene to the three sons – or, in other words, as from that date, Mr Agnew held title to the land under a constructive trust for the benefit of his three sons.  If that argument is accepted, it would mean that there had been no disposal of an asset of material worth by Mr Agnew in September 1995.  (It was not suggested that anything turned on the fact that Mr Agnew transferred the land to Rosedene Nominees Pty Ltd – and not his three sons; if, in fact, they were the beneficial owners of the land, then it would readily be inferred that the transfer was made pursuant to their direction as such beneficial owners).  The second argument, which need only be addressed if the first argument fails is that at the time when Mr Agnew transferred Rosedene to his sons’ trustee company, it was subject to the mortgage in favour of Austrust;  what Mr Agnew had to give therefore was his interest in Rosedene subject to that mortgage.  Expressed through the eyes of the sons, it was submitted that their trust did not receive an unencumbered asset having a value of $450,000 – it received that asset but coupled with the liability to discharge the Austrust debt; in other words the net value of the disposal by Mr Agnew was only $78,894.

    Constructive Trust

21. The respondent argued that there was no evidence of detriment to the sons and that none can be inferred.  The evidence was, so it was claimed, to the contrary: it was the sons’ wish to go on the land and Mr and Mrs Agnew left the farm so that there would be better opportunities for the sons.  The Tribunal discussed the evidence of Peter on this subject.  It said:

    “Peter also gave evidence that he and his brothers all wanted to go onto the land and that they were doing no favours to their parents by remaining on the land.  On the contrary, he agreed that by moving off the land and allowing them to farm without paying rent or a percentage of profits, his parents had effectively done the three sons a favour.”

22. Unlike the facts in Giumelli v Giumelli (1999) 161 CLR 473, this was not a case where parents had induced a child to work for little or no wages in return for a promise that one day a part of the land would be his. On the other hand, it may be inferred that the work and money that the sons expended on Rosedene would have improved its capital worth and had the potential to benefit them if and when the terms of the alleged trust were finalised.

23. Although it is not necessary to prove the existence of a common intention to establish a constructive trust: Muschinski v Dodds (1985) 160 CLR 583 at 612-616 per Deane J; Baumgartner v Baumgartner (1987) 164 CLR 137: there was, as it seems to me, evidence before the Tribunal and accepted by the Tribunal that pointed to such a common intention. The Tribunal accepted the evidence of Mr Agnew and his son, Peter. It described them as:

    “genuine witnesses who were honest in their presentation of facts to the Tribunal … .  The Tribunal has no hesitation in accepting the factual content of their evidence, with one exception mentioned later in these reasons.”

24. The exception appears in par 41 of the Tribunal’s reasons; but before identifying it, it is important to note the summaries of evidence that the Tribunal recorded in its reasons:

    “40.The evidence of Mr Agnew was that prior to departing for Western Australia, he made a representation to his sons that the land was theirs.  In this regard, Peter Agnew gave the following evidence:

    “MR BEAZLEY:     Did you have a discussion, that is to say you and your brothers, with your father at or about the time he decided to go to Western Australia about the future of the farm?

    PETER AGNEW:   Well, Dad had always said that the farm was going to be ours eventually anyway and Dad just said:  well, it’s yours now, you farm it as you see best, I’m going off to Perth to have a regular income and see what sort of job you do.

    …

    MR BEAZLEY:     Did you understand that the land was yours then in 1980?

    PETER AGNEW:   Yes, we did.

    …

    TRIBUNAL:Earlier on you referred to a conversation – well, I assume it was a conversation in which your father had said words to the effect of, ‘It’s yours now’.  Can you remember the occasion where that took place and who was present?

    PETER AGNEW:   I would think it would’ve been around the tea table when the whole family would have been there, my brothers and sister.

    TRIBUNAL:And what did you understand your father to mean by use of the words, ‘It’s yours now’?

    PETER AGNEW:   I think it was the land but also the whole of the operation.  I think dad was just ready to release all the pressure of farming and as just said, ‘The whole caboodle, it’s yours’, sir.”

    In his evidence, Mr Agnew couldn’t remember any specific conversation as Peter could, but said that talks had occurred around the table where it was made clear that the land would be given to the sons.  He gave evidence that it wasn’t transferred into their names in 1980 because of stamp duty.  Further, Mr Agnew said that in transferring Rosedene to the trustee, he believed he was transferring the land to his sons as promised and admitted that he didn’t really understand how trusts operated.”

25. There then followed the critical finding of the Tribunal.  At par 41 of its reasons it said:

    “41.Accepting the above evidence, it might be said that prior to his departure, Mr Agnew expressed a clear intention that the whole of Rosedene was being given to his sons and that he would be merely holding legal title on trust for them.  That is to say, it might be said that Mr Agnew’s intention at that moment was to divest himself entirely of the beneficial ownership of the land, and to forfeit any right he might have had to assert legal title again at some later point in time, ie. create an express trust in favour of his sons.  The Tribunal is not however so satisfied.  The Tribunal is not prepared to accept that this was the reality of the situation and is of the view that the evidence forthcoming from the witnesses to this effect must be seen in light of their relationship to each other.”

26. These findings cannot be regarded as findings of fact for the Tribunal has made it clear that it accepted both witnesses as witnesses of truth; the Tribunal was not therefore rejecting their evidence.  Nor could it be fairly said that the Tribunal was drawing inferences from their accepted evidence.  It was, in my opinion, clear that the Tribunal was drawing a legal conclusion from its earlier findings of fact.

27. Mr Lunn, counsel for the respondents, argued that the benefits that the sons derived through their rent free use of their father’s land over a period of fifteen years was of such value that any detriment that they might have suffered had been adequately compensated.  I cannot accept this proposition because it overlooks the fact that, if a constructive trust came into existence in 1980, the sons were then and thereafter entitled, in their capacity as the beneficial owners of the land, to the use and enjoyment of the land, freed of any restriction or obligation to pay their father rent.  If therefore, there was such a trust, there was no benefit to the sons of the type described by Mr Lunn.  On the other hand, if there was such a trust and its existence were to be denied, the sons, although the beneficial owners, would be deprived of the benefits that flow from having the land registered in their names as the legal owners.

1. It should be acknowledged that there were benefits that were enjoyed by the sons and there were choices that were made by them that were not, in anyway, influenced by the conduct of their father.  Farming, for example, was their choice; they wanted to return to the farm from their city jobs.  Their parents move to the west gave them a measure of freedom that they had not earlier experienced.  Undoubtedly benefits flowed to them.  But that does not mean to say that detriments are therefore to be ignored; that was made plain by the High Court in Giumelli v Giumelli.

2. That case is a recent example of a constructive trust. A son had sued his parents claiming that he had continued to work on his parent’ property because of promises that they had made that a certain part of the land would be transferred to him. In the Western Australian Full Court: (1996) 17 WAR 159: Rowland J had discussed the issue of detriment saying:

   “On that basis, and assuming that the appellant suffered no loss of income, the detriment suffered by the appellant is still the loss of the property which he worked to improve, not to obtain immediate income from that exercise, but to gain the proprietary interest.  For this, he gave up the opportunity of a different career path.”

3. In their joint judgment Gleeson CJ, McHugh, Gummow and Callinan JJ expressly approved of those conclusions (479), adding:

   “Rowland J approached the matter on the footing that, even if it be conceded that Robert had not suffered an appreciable loss of income by remaining in the partnership, the detriment suffered by him was the loss of the property which he worked to improve, not to obtain immediate income from that exercise but to gain the proprietary interest.”

4. Mr Agnew honoured his promise to his sons; but if he had attempted to renege on his commitment, his sons would have rightly complained that a refusal to transfer legal title to them would have been a detriment because it would mean that they would not gain their rightful proprietary interest in the land.  The Tribunal, in the course of its reasons had said:

   “The primary case for the applicants is that in 1980, when they left for Western Australia, Mr Agnew had made a gift of Rosedene to his sons.  In evidence Mr Agnew said that had been his intention; his son Peter, who also gave evidence, said that was his belief.”

5. In my opinion, the Tribunal erred in law when it found:

   “Taking the whole of the circumstances experienced by the applicants’ sons, the Tribunal finds that no detriment was suffered by them and no unconscionable act would have been perpetrated by Mr Agnew should he have asserted an unfettered right over the land on his return from Western Australia.”

6. In light of the findings of fact that the Tribunal had made, that conclusion amounted to an error in law that justifies this Court’s intervention.  It was not consistent for the Tribunal to accept the evidence of Mr Agnew and Peter on the one hand and then to hold that:

   “The Tribunal is not prepared to accept that this was the reality of the situation …”.

7. If by saying that “the evidence forthcoming from the witnesses to this effect must be seen in light of their relationship to each other”, the Tribunal was rejecting what they had said because it was a case of ex post facto rationalisation, the Tribunal should have said so.  In my opinion, the findings of fact that were made by the Tribunal are such that they amount to a finding of the existence of a constructive trust.

   The second argument

8. Although my finding that a constructive trust came into existence in 1980 renders a consideration of this question unnecessary, I set out my views in case this matter should go further.  In the event of a finding that no constructive trust existed, the applicants argued that the true value of the disposition by Mr Agnew was the agreed value of the land - $450,000 – less the debt owing to Austrust - $371,105.60 – or $78,894.40.  In my opinion, that proposition must be rejected.  The Austrust debt was a debt owing by the partnership and it had been brought to account as such in the books of account of the partnership.  If Austrust had ever called on Mr Agnew to meet his formal commitments under the mortgage as an apparent primary debtor, he would have been entitled to look to his partners for contribution.  Counsel’s submission that the remaining partners would not have had the financial ability to pay their due shares cannot be accepted; there was no evidence before the Tribunal about their financial worth.

9. The Social Security Appeals Tribunal correctly assessed the situation, as is apparent from the following extract from that Tribunal’s decision:

   “In this case the full value of the asset was Mr Agnew’s, whereas the liability was in the form of a loan taken out by the partnership and secured on his property.  The liability of the partnership was taken into account in the partnership balance sheet and Mr and Mrs Agnew’s exposure to that liability had been reduced to $43,454 (combined).  When the partnership was dissolved that liability was taken on by the new partnership, effectively forgiving that debt.

   In the circumstances, it was considered reasonable to accept that this formed consideration for Mr Agnew transferring the property to the Rosedene Family Trust and therefore that the amount of the deprived asset should be reduced to $396,546.”

   (The figure of $396,546 is an arithmetical mistake:  it should be $406,546 – being $450,000 less $43,454.  However, in either case, the net result was that Mr and Mrs Agnew had combined assets in excess of $370,000).  As the Social Security Appeals Tribunal noted:

   “The cut-off point for the payment of age pension to a member of a couple under the assets test is currently $370,000 and as combined assets exceeded that amount the decision to reject the claim was correct.”

10. The argument that was advanced on behalf of the respondent before the Tribunal and this Court was simplistic but unrealistic.  In accepting it, I believe that the Tribunal fell into a reviewable error.  The argument was to this effect:

    ·as at 30 June 1995, Rosedene was subject to a mortgage as security for a partnership debt of $371,106;

    ·as at 30 June 1995, Mr Agnew owed the partnership $51,758, the partnership “owed” Mr Agnew $8,314 which “for pension purposes, could be combined to form a joint liability to the partnership of $43,454”;

    ·As at 1 July 1995, when the partnership was dissolved, the three sons gave their parents an indemnity in respect of all partnership liabilities and released them from the joint liability of $43,454;

    ·At the time when Mr Agnew transferred Rosedene, in late 1995, “it was unencumbered by virtue of the fact that his sons had given him a complete indemnity for the whole of the partnership debts as from 1 July 1995”.

11. The conclusion that the Tribunal reached was that:

    “… at 1 July 1995, Mr Agnew retained ownership of the whole of Rosedene but he and his wife had no liability to the partnership for the partnership debts as and from this date, i.e. Rosedene was effectively unencumbered from 1 July 1995 until 19 September 1995, the date of which the formal contract for transfer was executed.”

12. The fallacy in this argument is that it overlooks the fact that the Deed of Dissolution of the partnership was not executed until 7 March 1996.  On that day the parties acknowledged in writing that their agreement would take effect as from 1 July 1995 but, until 7 March, there was no such written acknowledgment.  As at 19 September Rosedene was still subject to the Austrust mortgage and Mr Agnew was still the primary debtor.  In a sense, this answer is as artificial as the respondent’s argument.  Both overlook the obvious explanation - which was that the family over some indeterminate period of time agreed upon an entire package.  That package, simply expressed was to this effect:

    ·the parents would leave the partnership, freed of all debts; and

    ·in return, Mr Agnew would transfer Rosedene to his sons or as they might direct.

13. The net result of that package was, in terms of s 1124 of the Act, a disposal by Mr and Mrs Agnew of an asset and the amount of the disposition was $406,546 (being the value of Rosedene - $450,000 – less the net amount owing by the parents to the partnership - $43,454.

14. For the reasons that I have set out, the decision of the Tribunal must be set aside.  There will be an order accordingly.  There will be a further order remitting the matter to the Tribunal for further consideration in terms consistent with these reasons.  The respondent is to pay the applicant’s costs of this application.  Those costs are to be taxed in default of agreement.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:
Dated:            23 June 1999

Counsel for the Applicant:	Mr B Beazley
Solicitor for the Applicant:	Messrs Beger & Co
Counsel for the Respondent:	Mr J Lunn
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 June 1999
Date of Judgment:	23 June 1999