Al-Ebadi v Guo

[2017] NSWDC 107

District Court

New South Wales

Medium Neutral Citation:	Al-Ebadi v Guo [2017] NSWDC 107
Hearing dates:	9, 10 and 13 March 2017
Date of orders:	14 March 2017
Decision date:	14 March 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Leave granted to the plaintiff to commence proceedings out of time under s 109(1) of the Motor Accidents Compensation Act 1999. (2)   Defendant’s notice of motion dismissed. (3)   Plaintiff’s solicitor to pay the costs of the preparation and first day of the hearing of the application, otherwise costs of the application to be costs in the proceedings. (4)   Stand over the matter for directions on Thursday, 16 March 2017 at 10am before the Judicial Registrar. (5)   Exhibits returned forthwith (and returned in court).
Catchwords:	MOTOR ACCIDENT – leave to commence proceedings outside limitation period – one month delay – diary error by solicitors – full and satisfactory explanation – earlier motor vehicle accident – “damages likely to be awarded” – “if the claim succeeds”
Legislation Cited:	Motor Accidents Compensation Act 1999, s 3, s 66, s 83, s 109
Cases Cited:	Dijakovic v Perez [2015] NSWCA 174 Eades v Gunestepe [2012] NSWCA 204 Holt v Wynter (2000) 49 NSWLR 128 Reeves v Reeves [2002] NSWCA 181 Sinclair v Darwich [2010] NSWCA 195
Category:	Procedural and other rulings
Parties:	Majid Al-Ebadi (plaintiff) Bin Guo (defendant)
Representation:	Counsel: Mr D Hanna (plaintiff) Mr W Fitzsimmons (defendant)   Solicitors: Danawe Lawyers (plaintiff) McInnes Wilson Lawyers (defendant)
File Number(s):	2016/183046
Publication restriction:	None

Judgment

A. GENERALLY

1. Majid Al-Ebadi was involved in a motor vehicle accident on 22 December 2012. Due to an oversight by his solicitor, proceedings were commenced 30 days after the limitation period had expired. Mr Al-Ebadi seeks a grant of leave under s 109 of the Motor Accidents Compensation Act 1999 (“MACA”) to enable him to commence proceedings out of time, whereas the insurer seeks dismissal of the proceedings. The insurer previously admitted a breach of duty.

2. Mr Al-Ebadi was also involved in an earlier motor vehicle accident on 15 June 2011, which also resulted in proceedings (“the first proceedings”) by Mr Al-Ebadi for damages. Mr Al-Ebadi received compensation in a settlement of those proceedings in April 2013.

B. THE ISSUES

3. Mr Al-Ebadi is not entitled to commence proceedings without leave of the Court. Section 109(3) provides:

“(3) The leave of the court must not be granted unless:

(a) the claimant provides a full and satisfactory explanation to the court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.”

4. The insurer disputes the fulfilment of the requirements of both these subsections. Thus, the issues can be summarised as:

1. Was there a full explanation of the delay?

2. Was there a satisfactory explanation of the delay?

3. What is the impact of the 2011 accident on the application of s 109?

4. Is the total damages likely to be awarded to Mr Al-Ebadi, "if the claim succeeds", not less than $115,500, being the amount of the 25% threshold; and

5. if (1), (2) and (4) are satisfied, should the Court, exercising its discretion, grant leave to Mr Al-Ebadi?

C. FULL EXPLANATION

5. Section 66(2) of the MACA defines a reference to a full explanation for the delay as: "a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation".

6. The insurer relies on only one matter to assert that a full explanation has not been provided. It submits that there is no evidence from Mr Al-Ebadi's solicitor in the first proceedings as to whether and when Mr Al-Ebadi first told him about the second motor vehicle accident on 22 December 2012.

7. The occasion when the injured person first tells a solicitor about a motor vehicle accident is a relevant matter to an application under s 109, falling within, "the conduct, including the actions…of the claimant, from the date of the accident…"

8. Accordingly, if there was no evidence of this matter, I would be inclined to hold that there had not been a "full explanation" of the delay as that term is defined in s 66.

9. However, there is evidence about this matter. Ms Amina Abawi, the solicitor who has carriage of these proceedings, said on oath in her affidavit:

"The Plaintiff initially consulted Mr Malek Danawe, partner of Danawe Lawyers on about 20 June 2013 in relation to his compulsory Third Party Claim for a motor vehicle accident on 22 December 2012."

10. It is not disputed that Danawe Lawyers acted for Mr Al-Ebadi in both proceedings. Ms Abawi is an employed solicitor in that firm. It is also not disputed that Mr Malek Danawe had carriage of the first proceedings. Thus, there is evidence from the solicitor having carriage of the matter, about the initial consultation with a solicitor.

11. Mr Al-Ebadi's evidence is to the same effect: "I recall I initially consulted Mr Malek Danawe of Danawe Lawyers on about 20 June 2013 in relation to my compulsory third party claim".

12. This evidence is supported by the initial retainer letter (Exhibit B), which was sent to Mr Al-Ebadi on the same day, 20 June 2013.

13. The insurer submitted that it would be "astonishing" if Mr Al-Ebadi did not tell his solicitor who was acting for him in the first proceedings of his second accident until almost six months after the accident. That may be so, but there is no evidence to the contrary. Further, Mr Al-Ebadi attended a medical appointment with an expert psychiatrist (retained by the defendant in the first proceedings) in March 2013, during that six-month period after the second accident, and no mention is made of the second accident in the psychiatrist’s report. This suggests, as the insurer suggested to Mr Al-Ebadi in cross-examination, that Mr Al-Ebadi did not mention the second accident to the psychiatrist. This is consistent with the non-disclosure of the second accident by Mr Al-Ebadi to his solicitor in early 2013.

14. Mr Al-Ebadi was asked in cross‑examination about whether he had told his solicitor in the first proceedings, Mr Danawe, about the second accident in early 2013 but he could not recall. I do not think this provides any evidence about a disclosure.

15. Further, the absence of any disclosure prior to 20 June 2013, evidenced by the affidavits of Mr Al-Ebadi and his solicitor, Ms Abawi, is not a matter that requires an affidavit of an earlier solicitor in order to be a full explanation. Mr Al-Ebadi has given the explanation which is confirmed by his current solicitor. Astonishing or not, it gives the account of his first consultation with a solicitor about the second accident. In the absence of any contrary evidence, I accept that this is an "account" of his "conduct" and "actions" in first informing a solicitor about the second accident. It follows that the absence of an affidavit from Mr Danawe on this subject is not a defect precluding Mr Al-Ebadi's explanation from being a full explanation.

16. No other submission was made as to why Mr Al-Ebadi's explanation was not a full explanation. I accept that his explanation is a full explanation in accordance with s 66(2).

D. SATISFACTORY EXPLANATION

17. Initially the insurer challenged the satisfactoriness of the explanation for the delay. At the hearing there was evidence by Ms Abawi of an oversight in the solicitors’ office by a named paralegal no longer at the firm. The paralegal diarised the wrong date for commencement.

18. Ms Abawi did not discover this "clerical error" until a month after commencing proceedings. Further, there was evidence, which I accept, that Mr Al-Ebadi was not sent and thus, did not receive, the firm's standard letter indicating the time restrictions on commencement of proceedings. It was also accepted that the time for commencement expired two months after the matter was exempted from the CARS process on an application by the insurer. The expiration date for commencement of proceedings was thus not calculable from the date of the accident.

19. No other issue was raised as to why the explanation was not satisfactory.

20. Informed by the uncontroverted evidence of the solicitor about the mistake, the insurer did not press any argument that the explanation for the delay was not satisfactory or (which is the same thing pursuant to s 66(2)) that a reasonable person in the position of Mr Al-Ebadi would not have been justified in experiencing this delay.

21. Accordingly, I find that the explanation for the delay was satisfactory.

E. SECTION 109(3)(B) AND THE IMPACT OF THE 2011 ACCIDENT

22. Section 109(3)(b) of the MACA requires the Court to determine whether the total amount of damages is likely to exceed the $115,500 threshold. This determination is expressly premised on the claim succeeding. A claim under s 3 of the MACA is defined to be a "claim for damages", indicating that success is not merely success on liability. Further, the Court of Appeal in Reeves v Reeves [2002] NSWCA 181 at [16] determined that the words:

“‘the total damages of all kinds likely to be awarded to the claimant if the claim succeeds’ reasonably, as a matter of construction, refers to damages likely to be recovered in the event of a totally successful claim”.

23. Mr Al-Ebadi was assessed under a MAS assessment as having less than 10% whole person impairment, so he has no claim for non-economic loss. His claim is for past and future earning capacity, medical expenses and domestic care. If Mr Al-Ebadi's claim is assumed for the purpose of s 109(3)(b) to be "totally successful", he must be assumed to have succeeded on each aspect of his claim for damages. But this cannot mean that the particular amount of damages asserted by the plaintiff must be accepted, for such a construction would deprive the Court of determining what total damages are likely to be awarded under s 109(3)(b).

24. The phrase “likely to be awarded” in s 109(3)(b) has been interpreted as meaning a "real chance" or a "real prospect" of being awarded an amount of damages in excess of the threshold (see Sinclair v Darwich [2010] NSWCA 195 at [36], Eades v Gunestepe [2012] NSWCA 204 at [10], [50]). It appears to require the Court to assume that the plaintiff will succeed on each head of damage claimed so long as there is evidence to support that component of the claim. As stated by the Court of Appeal in Dijakovic v Perez [2015] NSWCA 174 at [120], "the threshold issue" is approached by considering "the claimant's medical evidence, taken at its highest". It seems to me, consistent with this approach, that I am required to take the plaintiff's lay evidence, such as the need for domestic care, "at its highest", both because the section draws no distinction between medical and lay evidence, and because the claimant's claim for care, for example, cannot be assumed to be "totally successful" if the evidence of the need for care is rejected.

25. The insurer submitted that s 109 allowed the Court to take into account matters that might affect the level of damages to be awarded. This might be so, but it cannot disturb the assumption that the Court is required to make: that "the claim succeeds" or that the claim is "totally successful". Nor can it disturb the obligation on the Court to look at the evidence "taken at its highest". The Court must, nevertheless, exercise care in determining what is the real extent of the plaintiff's evidence on damages, rather than accept submissions on damages that may lack an evidentiary foundation.

26. The challenges of applying s 109(3)(b) is that on the one hand, success, even total success, is presumed. This might indicate that evidence is irrelevant. On the other hand, an assessment of likelihood, whether a real chance or otherwise, conventionally would be undertaken by a review of the evidence. The resolution of this dilemma is resolved by taking the evidence at its highest in relation to quantum.

27. Accordingly, there must be doubt as to whether cross-examination on this subject is of much utility since the evidence will remain: it matters little if its value is diminished since the evidence is to be taken at its highest. The cross-examination may even be counterproductive so far as the defendant is concerned as it may elicit other evidence in support of higher damages.

28. The plaintiff submitted, which I accept, that s 109(3)(b) is not intended to be a separate initial trial on quantum. Nevertheless, there is no bar on the plaintiff bringing whatever evidence he chooses to support his application and establish satisfaction of s 109(3)(b). Yet the presumption of success and the rule that evidence is to be taken at its highest, may mean that corroborative evidence is unnecessary to satisfy the requirements of the section.

29. The 2011 accident was heavily relied on by the insurer in these proceedings, principally to establish that Mr Al-Ebadi's condition was no different before or after the 2012 accident.

30. The particulars provided by Danawe Lawyers, in respect of the injuries and continuing disabilities of Mr Al-Ebadi in the second motor vehicle accident, are in large measure a verbatim reproduction of the particulars utilised by Mr Al-Ebadi in the proceedings in respect of the 2011 accident. There are some additional matters in the particulars of the 2011 accident, but when one compares the two sets of particulars (see the affidavit of John Renshaw dated 6 March 2017 at pp 115 to 117 and pp 50 to 52), it is apparent that all of the five injuries claimed in respect to the 2012 accident, save for the, "Left Shoulder", and all of the sixteen disabilities claimed in the 2012 accident, save for items 2 (stiffness and restriction in shoulders), 12 (difficulty sleeping) and 13 (reduction in earning capacity), were previously particularised in respect to the 2011 accident, word for word, except for a minor change to terminology in respect of item 14. The psychological disabilities were indistinguishable in the particulars of the two claims. Further, the stiffness in the shoulders and difficulties sleeping were not significant differences in Mr Al-Ebadi's condition between the two accidents, as both of those matters, although only particularised in respect of the 2012 accident, were referred to in medical reports dated prior to the 2012 accident and utilised in the proceedings in respect to the 2011 accident to support loss and damage arising from that accident.

31. Further, on 28 September 2012, shortly before the 2012 accident, Dr Tanveer Ahmed reported on Mr Al-Ebadi (see the affidavit of John Renshaw, pp 137 to 139), stating that Mr Al-Ebadi reported:

“marked depressive symptoms of low mood disrupted sleep and decline in appetite, that he had contemplated suicide, that he had difficulty reading newspapers or surfing the net, that he had withdrawn from all social activity and preferred not to leave the house and that his short term memory and concentration were clearly worse, that he felt that there was little hope and that he could no longer do any kind of housework”.

32. Dr Ahmed concluded that Mr Al-Ebadi, "clearly satisfied the criteria for a major depression", that he is not fit to work even in a part-time role, although, "he was on the verge of opening a small business prior to his injury", and that he would, "require medication for the foreseeable future at least for the next two to three years".

33. Dr Ahmed also reported on Mr Al-Ebadi after the second accident, the subject of these proceedings, on 10 March 2015. Again Dr Ahmed concluded that Mr Al-Ebadi satisfied the criteria for a major depression characterised by disrupted sleep and appetite, marked withdrawal from activities that he previously found enjoyable, significant deficit in both short term memory and concentration. That he felt that he was on the cusp of providing again for his family for he was on the verge of beginning a small business which he was now incapable of beginning since “the accident…has [broken] his sense of being a provider".

34. Dr Ahmed also noted that Mr Al-Ebadi had had a prior motor vehicle accident but concluded that, "in my opinion the key contributor is the most recent car accident". Plainly enough, that conclusion sits uncomfortably with the earlier report of Dr Ahmed. In view of the similarities between the symptoms described in Dr Ahmed's two reports, and the circumstance that the first report was dated shortly before the second accident, it might be thought that Mr Al-Ebadi's condition, on the evidence of his own expert, was substantially the same before and after the second accident. This view was not displaced by the other reports concerning the injuries and disabilities arising from the first accident, although later reports, like Dr Ahmed's second report, tended to minimise the impact of the first accident.

35. Mr Al-Ebadi’s evidence was not persuasive of a substantial deterioration after the second accident. He accepted that he continued to wear a neck brace after the first accident, as Dr Ahmed reported from the consultation shortly before the second accident. Nevertheless, Mr Al-Ebadi maintained that his condition was getting better.

36. Mr Al-Ebadi gave evidence that he had travelled to Iraq for some months on two visits after the second accident and that during that time he attended restaurants, shopping centres and public meetings including speaking at public meetings, that he took all of his family overseas, that he carried flags in protest marches, that he engaged in cooking large quantities of food including by stirring with a large ladle a very large pot of food. He accepted that each of these matters were evidenced by photographs from a Facebook page. He also gave evidence that he did tell Dr Selwyn Smith, the defendant's psychiatric expert in the first proceedings, as Dr Smith recorded, that he could not take work in a supermarket because of the 2011 accident which prevented any work.

37. In respect of domestic chores, Mr Al-Ebadi said that he could do some cooking such as of rice, soup and chicken and that he involved himself in operating the washing machine but that his children would gather the clothes. And that in respect of cleaning he would do as much as he could but, "I have daughters, they clean, they do it" he said. He was asked, "Were you cleaning and cooking immediately prior to the motor vehicle accident in 2012", to which he responded, "No". He thought he was getting better before the 2012 accident and he said, "I was starting to think I could start a new business”.

38. I turn to the three items of damages claimed by the plaintiff.

F. LOST EARNING CAPACITY

39. Mr Al-Ebadi's claim for lost earning capacity must be diminished by his employment history.

40. Mr Al-Ebadi left Iraq in 1991 and has not worked since that time except for four to six months as a fruit picker in Queensland in 1997. He offers no explanation as to why he did not work in the 15 years from 1997 until 2012.

41. The claim for past and future lost earnings is based upon a plan Mr Al-Ebadi had to become an owner with some friends of a supermarket. There is no evidence of the earnings that he might be expected to make or of his capacity, financial or otherwise, to become an owner of the "Berala Supermarket".

42. The significance of Mr Al-Ebadi's plan, or that he was "starting to think" that he could part-own a supermarket, is diminished because the evidence indicates that it was also his plan prior to the 2011 accident: I mentioned earlier that Dr Ahmed reported that Mr Al-Ebadi was, before each accident, on the verge of starting a business. Dr Ahmed reported before the 2012 accident (in his 28 September 2012 report) that "he was just about to open a small business with a friend", but the accident had rendered him, "not fit to undertake any kind of work…even in a part-time role".

39. Mr Al-Ebadi’s particulars in the 2012 proceedings record (affidavit of John Renshaw, p 53):

"on or about 10 June 2011 [five days before the 2011 accident] the claimant applied for a job advertised at a supermarket which sold Arabic groceries called Berala Supermarket. The job requirements and duties included customer service, unloading stock from vans, restocking shelves and the like",

and also state that (affidavit of John Renshaw, p 61):

“the claimant wanted to work with Mr Jasim Sokam at Berala Supermarket in Berala. In addition the claimant was undertaking training in order to fulfil his future tasks. The claimant undertook training at Berala Supermarket for a period of 2 months on an unpaid basis."

44. The 2011 motor vehicle accident claim form (affidavit of John Renshaw, p 110) denies any lost income because of the accident. Mr Al-Ebadi gave no evidence in these proceedings of the items particularised that I have quoted above - the application for a job, the job requirements or the unpaid training for two months.

45. On the other hand, Dr Ahmed notes that before the second accident "in his mind he felt he was on the cusp of providing once again for his family for he was on the verge of beginning a small business". It is unclear what Dr Ahmed had in mind in referring "once again" to Mr Al-Ebadi being a provider given that Mr Al-Ebadi had not worked for the 15 years previous. I can only construe his words as a reference, in the absence of some more evidence, to the same business that he was starting to think he could start and which was referred to prior to the 2011 accident. As I noted, the particulars in the 2012 proceedings indicate an interest in a job at the Berala Supermarket prior to the 2011 accident.

46. Mr Al-Ebadi mentions in the statement annexed to his affidavit that: "at the time of the subject accident I had plans to commence employment at a supermarket by not only a business partner but performing general managerial duties". Although Mr Al-Ebadi was cross-examined, no further details of this plan of management emerged. If this were the evidence at a trial, I would not be persuaded that Mr Al-Ebadi had this plan in 2012 as distinct from 2011. However, this is not a trial and I am obliged to take his evidence at its highest and also to assume that he is totally successful in his claim. Relevantly that means he is totally successful in his claim for lost earning capacity. This means both that he has lost at least some of his earning capacity and that it was productive of some financial loss.

47. However, assuming that Mr Al-Ebadi lost the opportunity to go into the supermarket business in 2012, does not persuade me that he has a real chance of being awarded $232,500 for past and future loss of earnings, as he asserts. In view of the lack of detail of the proposed plan, the lack of evidence of the likely success of the business, and Mr Al-Ebadi's long history of unemployment, I think there is no real prospect, even assuming success on this claim for lost earning capacity, of him obtaining anything more than a modest buffer.

48. For the purpose of s 109(3)(b), I would allow an amount of $20,000 in respect of past and future lost earning capacity as representing the upper limit which Mr Al-Ebadi has a real chance of obtaining on the assumption that his claim is successful.

G. PAST AND FUTURE CARE

49. There is evidence from Dr John Davis in a report dated 15 February 2017 that from his injuries in the second accident, Mr Al-Ebadi has a need for, "6 hours of paid commercial domestic assistance per week on a continuing basis". In view of Mr Al-Ebadi's previous accident and his condition as reported in the earlier medical reports, including Dr Ahmed's, it might be thought unlikely that Mr Al-Ebadi would be awarded a sum based on this evidence at trial. However, once I assume that Mr Al-Ebadi's claim for care is wholly successful and taking Dr Davis' evidence at its highest, I am compelled to conclude that there is a real chance, in that event, that Mr Al-Ebadi would receive an amount to cover continuing care of six hours per week. I do not think that Dr Davis can give evidence of whether the care would be paid commercial care or gratuitous, but even accepting the lower rate of gratuitous care for six hours per week continuing, the value of the level of care needed according to Dr Davis calculates as a damages award, including past care at the same rate, at about $190,634. That is sufficient to satisfy the s 109(3)(b) threshold.

50. Whilst I am not persuaded that that is a likely result at trial, as indicated by my earlier reasons, I do not understand that to be the question I am asked under s 109(3)(b). Rather, having assumed that Mr Al-Ebadi is totally successful in his claim including his claim for care and looking at the evidence at its highest, there must be a real chance that he would be awarded six hours per week continuing since he has evidence from Dr Davis to that effect.

51. I note that assessing whether there is a real chance of an award of a certain sum, in the hypothetical situation of total success on the claim, is an exercise somewhat foreign to the usual judicial process. Nevertheless, for the reasons I have given, that is what seems to be required by s 109(3)(b).

H. MEDICAL EXPENSES

52. The evidence of medical expenses is that the insurer has paid $4,930 of expenses for Mr Al-Ebadi. However, that amount cannot be part of the likely damages awarded under s 109 because s 83(5) of the MACA provides that payment of that amount is a defence to any claim to the extent of the amount.

53. There is also a claim by Mr Al-Ebadi for $1,240 from the insurer, but no evidence to justify that expense as caused by the injury. A Medicare statement of past benefits expressly claimed states that, "the claimant did not identify the medical services related to their claim".

54. In those circumstances, it is difficult to see how a substantial amount can be awarded in respect of medical expenses that are not tied by any evidence to the 2012 accident.

I. CONCLUSION ON S 109(3)(b)

55. As is apparent from these reasons, the basis of Mr Al-Ebadi’s success in satisfying the threshold in s 109(3)(b) is not because of any likelihood that he will receive these amounts at trial. It is rather that, assuming (whatever the evidence before me might otherwise suggest) that he is totally successful on his claim and taking his evidence at its highest, there is a real chance that his total damages will exceed the $115,500 threshold.

56. For that reason only and largely because of the care claim, I consider that s 109(3)(b) is satisfied and does not preclude a grant of leave.

J. DISCRETION

57. Mr Al-Ebadi submits that the exercise of a discretion to grant leave arose from a clerical mistake by his solicitor. That mistake delayed commencement by one month and caused no prejudice to the defendant. Mr Al-Ebadi also submits that it would be unjust for an insurer to avoid all liability for damages in circumstances where the insurer has admitted liability, at least in the case of a short delay.

58. I accept the force of these submissions. They were not opposed by the insurer. That is to say, if the Court was satisfied that the requirements of s 109(2) (a) and (b) were satisfied, the insurer expressly declined to speak against the grant of leave.

K. COSTS

59. The plaintiff’s solicitor offered to pay part of the costs, submitting that it should bear the costs of the preparation for the hearing and the costs of the first day of the hearing of the application because of its clerical error but that the costs of the two days thereafter should be borne by the insurer because of the time spent on eliciting evidence that was not relevant to s 109(3)(b).

60. The insurer sought an order for costs in its favour on the basis that the plaintiff was seeking an indulgence (cf Holt v Wynter (2000) 49 NSWLR 128). It would not be correct to describe the present circumstances as involving a plaintiff who allowed a time limit to lapse. I must also consider the reasonableness of the opposition to the grant of leave.

61. In my view, the offer of the plaintiff's solicitor to pay the costs of the preparation and the first day of the hearing informs an appropriate order. In my view, the costs thereafter should be costs in the proceedings. Although a breach of duty has been admitted, the ultimate order in relation to costs might nevertheless depend upon the level of damages awarded and other circumstances.

L. ORDERS

62. The orders of the Court are:

1. Leave granted to the plaintiff to commence proceedings out of time under s 109(1) of the Motor Accidents Compensation Act 1999.

2. Defendant’s notice of motion dismissed.

3. Plaintiff’s solicitor to pay the costs of the preparation and first day of the hearing of the application, otherwise costs of the application to be costs in the proceedings.

4. Stand over the matter for directions on Thursday, 16 March 2017 at 10am before the Judicial Registrar.

5. Exhibits returned forthwith (and returned in court).

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Decision last updated: 17 May 2017