Avery and Repatriation Commission - [2000] AATA 576

DECISION AND REASONS FOR DECISION [2000] AATA 576

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/59

VETERANS' APPEALS DIVISION       )
           Re      BRIAN DOUGLAS AVERY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date12 July 2000
PlaceSydney

Decision      The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 3 December 1996 which affirmed the decision of the Veterans' Review Board of 14 December 1998 to find that Mr Brian Douglas Avery's condition of osteoarthrosis thoraco-lumbar spine or thoraco-lumbar spondylosis was not war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986. The question of assessment is remitted to the Repatriation Commission for its consideration.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans - whether osteoarthrosis or lumbar spondylosis - whether war-caused – application of relevant SoP- Keeley issues – whether eligible for pension at Special Rate - affirmed

LEGISLATION
Veterans Entitlements Act 1986 ss 9, 120(1), 120(3) and 124

CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Owens v Repatriation Commission (1995) 59 FCR 559
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
STATEMENTS OF PRINCIPLES

Repatriation Commission, Statement of Principles No.105 of 1995 concerning Lumbar Spondylosis as amended by No.332 of 1995 and No.356 of 1995
Repatriation Commission, Statement of Principles No.105 of 1995 concerning Lumbar Spondylosis as amended by No.334 of 1995 and No.358 of 1995
Repatriation Commission, Statement of Principles No.71 of 1995 concerning Osteoarthritis

REASONS FOR DECISION

12 July 2000 Ms G Ettinger Senior Member

The decision before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission dated 3 December 1996 (T2) which refused the application of the Applicant, Mr Brian Douglas Avery, to have his claim for osteoarthritis of the thoracolumbar spine accepted as war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act"). The Veterans' Review Board adjourned its hearing on 6 March 1998 (T13) pursuant to section 152 of the Act to seek a report from the Department of Veterans' Affairs. On 14 December 1998, the Veterans' Review Board (T17) affirmed the decision of the Repatriation Commission which found that osteoarthrosis thoracolumbar spine was not war-caused.The additional material sought was the report of Dr L Laird, orthopaedic surgeon.
The Applicant, Mr Avery, was represented by Mr C Whitelaw of counsel instructed by Mr S Lurie of Dibbs Crowther & Osborne and the Respondent Repatriation Commission, by Mr J Marsh, its senior advocate.
ISSUES BEFORE THE TRIBUNAL
The issues to be decided were:
(a)Whether the Veteran's osteoarthrosis of his thoracolumbar spine or thoraco-lumbar spondylosis was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act"); and
(b)Whether the Veteran qualified for disability pension at Special Rate pursuant to section 24 of the Act.

LEGISLATION

The relevant legislation in this matter is the Veterans' Entitlements Act 1986, particularly sections 9, 24, 120(1) and 120(3). They follow, as appropriate:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
….
(b)     the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
….
24 Special rate of pension
(1)This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)    the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
……
(2)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings of his or her own account, by reason of that incapacity if:
(i)    the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking …"

As the Veteran had served on operational service, the standard of proof to be applied was pursuant to section 120 of the Act, which follows as relevant.
"120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…..
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…"
The earliest date of effect in this matter is 8 July 1996.
PRELIMINARY ARGUMENT
In the review of Mr Avery's application, I am bound to apply section 120A of the Act because the Veteran's application was lodged after 1 June 1994, and the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Act. There were several SoPs which may have applied given the various diagnoses of the Applicant's condition.
Therefore, the question of appropriate diagnosis of the Veteran's condition was raised at the hearing as a preliminary issue. Mr Avery's condition had been referred to variously as osteoarthritis of the thoraco-lumbar spine (Repatriation Commission - T9), osteoarthrosis thoraco-lumbar spine (Veterans' Review Board - T17 and Dr J Glass – T7/28), and spondylosis (Professor P Sambrook - Exhibits R2 and R3). The Veterans' Review Board had applied SoPs relating to osteoarthosis, in particular No.41 of 1998 (then current).
Mr Whitelaw submitted for the Applicant that he suffered from thoraco-lumbar spondylosis, a non-inflammatory degenerative disease of the spine. However, Mr Whitelaw conceded that it did not matter if the Tribunal termed the condition as osteoathrosis of the spine and thus used the relevant SoPs concerning osteoarthrosis, or termed the condition thoracolumbar spondylosis and thus used the relevant SoPs concerning lumbar spondylosis. Mr Marsh, who appeared for the Respondent, submitted that the decisions of the Repatriation Commission and Veterans' Review Board had both considered the condition as osteoarthrosis of the spine, and whilst he did not see any advantage in considering the case according to the diagnosis of spondylosis, as long the Veteran was reviewed with regard to both the lumbar and thoracic spine, it did not make a great deal of difference.
I noted that the relevant SoPs for osteoarthrosis of the thoraco-lumbar spine current at the time of the Repatriation Commission decision were Instrument No.71 of 1995 as amended by No.336 of 1995 and No.352 of 1995.
Both parties agreed for different reasons that the relevant SoPs to be used in determining Mr Avery's case were:

Thoracic Spondylosis: Instrument No.103 of 1995 as amended by No.332 of 1995 and No.356 of 1995
Lumbar Spondylosis: Instrument No.105 of 1995 as amended by No.334 of 1995 and No.358 of 1995

Mr Whitelaw submitted that the RMA's Diagnostic Criteria for Osteoarthrosis specifically indicated that osteoarthrosis of the spine was covered by the SoPs for spondylosis. Having regard to that submission, the agreement of the Respondent, the diagnosis of the Applicant's condition and the similarity in definitions in the relevant SoPs concerning osteoarthosis and lumbar spondylosis, I agreed to apply the SoPs concerning both thoracic and lumbar spondylosis in Mr Avery's case. For the sake of completeness, I have reproduced the definitions below as relevant. I considered the application of SoPs which were different from those used by the previous decision-makers, and accepting the submissions as outlined above, decided that no jurisdictional issue of concern arose .
I am bound by the decision in Repatriation Commission v Keeley [2000] FCA 532, and mindful of the argument regarding accrued rights, find that the applicable SoPs in this case were those applied at the time of the primary decision of the Repatriation Commission. As relevant they follow.
Osteoarthrosis was defined in No.71 of 1995 as:
"a non inflammatory degenerative joint disease characterised by degeneration of the articular cartilage, hypertrophy of bone at the margin and changes in the synovial membrane and attracting an ICD code of 715."
This was amended in Instrument No.336 of 1995 to be:
"osteoarthrosis" means a heterogenous group of clinical joint disorders, attracting ICD code 715, associated with defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following characteristics:
(a)       a history of pain;
(b)       impaired function;
(c)       joint swelling; and
(d)       stiffness;"
The definition in Instrument No.352 of 1995 was almost identical and will not be reproduced here.
Lumbar Spondylosis was defined in Instrument No.105 of 1995:
"lumbar spondylosis" means degenerative changes in the lumbar spine, (L1-L5, L5-S1) including changes in the vertebral body, the intervertebral disc, the ligamentum flavum, the zygapophyseal joints, the vertebral joints, and the other ligamentous structures of the lumbar spine, attracting ICD code …"
The definition was amended in a minor way in Instrument No.334 of 1995 and 358.of 1995 as follows:
"lumbar spondylosis" means a degenerative joint disease attracting ICD code 721.3 ….affecting the lumbar spine (L1-L5, L5), causing local pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by protruding discs or osteophytes, and having degenerative changes in the lumbar spine;"
Thoracic spondylosis was defined in Instrument No.103 of 1995 to be:
"…degenerative changes in the thoracic spine, including changes in the vertebral body, the intervertebral disc, the ligamentum flavum, the zygapophyseal joints, the vertebral joints, and the other ligamentous structures of the thoracic spine, attracting ICD code…"
This was amended in Instrument No.332 of 1995, and applies also to No.356 of 1995. It read as follows:
"thoracic spondylosis" means a degenerative joint disease affecting the thoracic spine, causing local pain and stiffness, associated with degenerative changes in the thoracic spine, attracting ICD code 721.2…."
I noted that the Veteran's accepted disabilities were torn lateral meniscus of right knee and osteoarthritis of both knees. I noted that Dr M Baz, Dr L Laird, Dr J Glass and Professor P Sambrook had variously diagnosed Mr Avery as suffering from osteoarthrosis thoraco-lumbar spine and thoraco-lumbar spondylosis, and I acknowledge he suffers certain pain from those conditions.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the T-documents, and the following exhibits:
ITEM DATE NAME
Medical report of Dr M Baz 24 September 1999 Exhibit A1
Medical report of Dr M Baz 22 February 2000    Exhibit A2
Letters from HealthQuest to the Department of Education, and letter from HealthQuest regarding Mr B Avery.        9 April 1997   Exhibit A3
Letter from J G Abercrombie regarding the application for medical retirement of Mr B Avery.           Undated        Exhibit A4
Letter from Ms S Bailey to the Department of Health dated 15 November 1996     15 November 1996   Exhibit A5
Medical certificate for Mr B Avery 23 May 1996 Exhibit A6
Statement of Mr Brian Douglas Avery     29 February 2000    Exhibit A7
Medical report of Professor P Sambrook 21 June 1999           Exhibit R2
Medical report of Professor P Sambrook 29 February 2000    Exhibit R3
Medical report of Dr M Burns       22 October 1999     Exhibit R4

Oral evidence was given by the Applicant, Mr Avery, and Dr Baz, occupational physician.
EVIDENCE OF MR B AVERY THE APPLICANT
Mr Avery, whose statement dated 29 February 2000 was before the Tribunal as Exhibit A7, gave oral evidence. His date of birth was 5 February 1948. I noted that the Veteran had served on operational service in Vietnam from 1 October 1969 to 12 May 1970.
I noted from the Veteran's statement dated 29 February 2000 at page 1 that he described the incident which led to his accepted disabilities as follows:
"I had to jump from a helicopter with a 18 or 22 kg pack on my back, and carrying a machine gun and 400 rounds of ammunition (an additional 23 kg or so). As I jumped from the helicopter, I caught a toe on the stripping at the bottom of the helicopter's door, and landed on both my knees. My knees were severely jarred as a result of this fall, but I had to keep on going because we were under possible enemy fire. … From the time of the incident described above, I experienced intermittent pain in my right knee throughout my tour of Vietnam. …. At the time, my right knee did not give much pain, but would lock periodically and always had a click in it. I was referred to a specialist in or around 1971, and was advised that I had definitely damaged my right knee".
The Veteran stated that after he had returned from service he was employed as an industrial arts teacher at Muswellbrook South Infants and Primary School until he had ceased full-time work in approximately week 2 of term 4 in 1996. He took a medical retirement on the advice of Dr Laird he said, because at the time both his knees were badly swollen and he was in intense pain. He also stated that he was not able to adopt the recommendations made by HealthQuest to avoid standing whenever possible. He said that:
"in my subject field it's just an impossibility … An industrial arts teacher has to be mobile, he has to stand and he has to supervise and he supervises students with equipment which is dangerous and a person sitting in a chair is next to useless."
Mr Avery said that after approximately one year after his retirement on 1 July 1997, he returned to the school to do voluntary work that did not commit him to attending when he was "having a bad day". He described his work as a "top up" and said that he mostly worked with his wife who was also a teacher. He would help students who were having difficulties and assist with remedial reading. He said he attended school 5 days per week but said that although he remained at the school for some hours on each occasion, he was taking it easy and only working with students approximately 2 hours per day.
Mr Avery said he was able to perform some tasks around the house such as "a little bit" of cleaning, ironing and putting clothes away, but preferred not to clean the pool. He described how on "a good day" he was able to do the vacuuming because he had an upright vacuum cleaner and mow the lawn because he had a lightweight lawn mower. He said that even though he could ask his wife to perform these tasks he wanted to remain as active as possible and "live with" the risk of pain that might result from these activities. He said that like other Vietnam Veterans he had "a good pain threshold." He also said that even though swimming assisted his condition he was only able to swim about two to three months of the year because of the cold weather in Scone. He stated that he avoided walking as an exercise but used an exercise machine to strengthen the muscles in his thighs.
Mr Avery said that whilst he was a member of the local RSL club, he did not attend the club to drink with his friends, and had a limited social life. He said that he found social functions problematic because he could not stand for any period of time, especially if it involved standing still. He said that after 10 minutes or so his "knees start to lock up" and he began to experience pain.
In cross-examination, Mr Avery said that he sometimes took Panadeine to relieve the pain and also herbs to help with his liver function. His intake of Panadeine varied to the extent that he might not take any for a week but at other times, he "just about consumed the packet". He confirmed that the "mild analgesics" which Dr Burns referred to in his report at page one, was a reference to Panadeine. He also confirmed that he used a TENS machine when his knees were swollen but stopped using it because he stopped having swollen knees. He said he preferred to take measures "to prevent the problems flaring rather than to have to treat the problems once they flare".

Mr Marsh referred the Veteran to the medical report of Dr M Burns dated 22 October 1999 (Exhibit R4) which stated at page 1 that the Veteran had taken non-steroidal anti-inflammatory medications. Mr Avery said that he had not taken non-steroidal anti-inflammatory medications even though he had been given a prescription. His view was that this sort of medication was a "short term remedy" and he said that a friend had taken similar medication for a long period of time and had developed severe stomach problems.
In cross-examination, Mr Avery was asked how he had travelled to attend the medical examinations with Doctors Burns and Baz. He said that he had driven to Sydney and back to Scone which was a total of 560 kilometres. He drove his early model Skyline vehicle which, he said, was one of the few cars in which he could sit comfortably for any length of time. It had a hydraulic assisted clutch which made driving easier. He said that the day on which he attended the appointment with Dr Burns was a day of particularly bad pain. He had driven to Sydney the night before, and taken a taxi to the appointment. He said that he took a taxi because he was not able to use public transport.
Mr Avery described himself as an 80/20 person in outlining how his condition varied. He said that the day of the hearing was:
"A 20% day when both the knees are in pain and my back's in pain and that's the sort of day, … where I even have memory slips, in other words, I forget what I'm talking about because you get a pain shaft and it stops you."
He described the effect of the cold on his pain, and said he was in "desperate – incredible pain" last year when there had been a cold snap.
Mr Avery said that on the day of the Tribunal hearing, he had parked about two kilometres away, and that his son had given him a lift some of the way and that he had walked the remaining two or three blocks. He said that following the hearing he would go back to his son's house to rest and recover, and then he would drive back in stages. Mr Avery also stated that when his wife was not available to drive him into the centre of Scone (which was three kilometres from home), he drove himself even though it could be extremely painful.
In his statement dated 29 February 2000 on pages 3 and 4 (Exhibit A7), Mr Avery stated:
"On a bad day, I am unable to walk more than 20 metres or so, and have difficulty even getting out of a chair. On an average day, I estimate that I can walk up to 500 metres but will be in pain if I walk this far."
In cross-examination he conceded that he could walk more than 500 metres but that later he "would be paying for it".
MEDICAL EVIDENCE
Dr L Laird, orthopaedic surgeon, in his medical report dated 17 October 1996 which appeared at T5/19, stated: "both clinically and psychologically (the veteran) would be a lot better without his teaching positions". In his medical report of 17 April 1998 (T15/51) Dr Laird, opined that the: "(the Veteran's) right knee condition and altered gait may certainly contribute to some increasing pain in the thoraco lumbar region of his spine".
However, in his medical report dated 25 June 1998 (T16/62) he opined:
"(the veteran) did not appear to have any evidence of mal-alignment. He did not appear to have any evidence both clinically and radiologically of mal-alignment. There were no x-rays of the thoracic spine. However, because of his previous gait disturbance with his walking, one would state that this may have certainly contributed to some back discomfort generally".
An x-ray report of the Veteran's lumbosacral spine dated 30 October 1996 (T15/54) discussed moderate L3-4 disc degenerative change and minor spondylosis in the mid and upper lumbar spine. Further, an x-ray report dated 12 August 1998 at T16/64 regarding the Veterans' thoracolumbar spine found: "Bone morphology and alignment are normal. There are wide spread degenerative changes. No evidence of bone destruction or vertebral collapse."
Dr J Glass, consultant physician, in his medical report dated 12 November 1996 (T7/22) reported the Veteran as suffering from osteoarthritis of the thoracolumbar spine and stated he had been "complaining of pain in the upper lumbar lower thoracic spinal region for the last three to four months".
Dr Glass, in making a diagnosis of Mr Avery's spinal pain as being related to "mild osteoarthritis involving the thoracolumbar region" also noted that Mr Avery had:
"… mild thoracic kyphosis and thoracolumbar scoliosis. There was tenderness localised mainly to the lower thoracic and upper lumbar spine. There was no tenderness in the lower lumbar spine".

ORAL AND WRITTEN EVIDENCE OF DR M BAZ

Dr M Baz, occupational physician, examined the Veteran on 20 September 1999 and her reports dated 24 September 1999 (Exhibit A1) and 22 February 2000 (Exhibit A2) were before the Tribunal. Dr Baz was asked to provide an assessment of the Veteran's degree of incapacity, with and without the non-accepted disability, and of his capacity to work. Dr Baz also gave oral evidence before the Tribunal.
Dr Baz wrote in her report (Exhibit A1) that Mr Avery had bilateral knee osteoarthritis and thoracolumbar spondylosis. She opined that he had a history of left knee injury during service with a significant exacerbation in 1993 leading to arthroscopic surgery in 1993. She reported Mr Avery as telling her he had good function until 1996 when marked deterioration in right knee symptoms occurred followed by problems with the left knee, and a development within a few months of low back pain. Dr Baz opined: "His low back pain is considered partially due to altered gait as a consequence of the bilateral knee problems."
When questioned about the lifestyle ratings, Dr Baz had written in her report (Exhibit A1), Dr Baz gave oral evidence that she would adhere to the ratings given with the exception of personal relationships which she now felt should be rated at three rather than two. Dr Baz also gave further evidence regarding her rating of Mr Avery for assessment purposes.
Dr Baz opined that having considered the x-ray evidence at Exhibit R1, she thought that age-related generative changes were common when people reached their fifties, but that in Mr Avery's case they were more activity related, that is, to his activities as an industrial arts teacher.
Dr Baz opined that the Veteran's osteoarthritis of the thoracolumbar spine affected his ability to work but said that she did not consider that it was the substantial cause of his inability to work. She opined at page 7 of her report of 24 September 1999 as follows:
"If the osteoarthritis of the thoracolumbar spine is accepted then I consider Mr Avery's accepted disabilities prevent him from undertaking remunerative employment, in areas in which he is skilled and experienced, for 8 or more hours weekly.
If the osteoarthrosis of the thoracolumbar spine is not accepted as a war caused disability then I consider the accepted disabilities alone prevent him from undertaking a remunerative appointment, in areas which he is skilled and experienced, for 8 or more hours weekly. I also consider the accepted disabilities would be the substantial cause of his inability to work.
Thus I consider the osteoarthrosis of the thoracolumbar spine does affect Mr Avery's ability to work, but I do not consider it to be a substantial cause. Rather the currently accepted osteoarthrosis of both knees are the substantial cause of his inability to work and would on their own prevent him from undertaking remunerative employment, in areas which he is skilled and experienced, for more than 8 hours weekly."
Dr Baz commented on the fact that Mr Avery could not straighten his right leg, adding that this would cause abnormal stresses on his spine.
In cross-examination, Dr Baz was asked to explain what she meant by the statement: "The spine is in normal alignment" which appeared at page 4 of her report dated 24 September 1999. She replied that she was referring to the spine when it was in a standing position. Mr Marsh asked further: "So there was no malalignment while he was standing when you examined him." Dr Baz replied: "No".
MEDICAL REPORTS OF PROFESSOR P SAMBROOK
Professor P Sambrook, rheumatologist, examined the Veteran on 15 June 1999. His medical reports dated 21 June 1999 (Exhibit R2) and 29 February 2000 (Exhibit R3) were before the Tribunal.
I noted that Professor Sambrook opined that it was most reasonable for the Veteran's case to be considered as a "functional malalignment". In his report of 21 June 1999, he stated that the definition of malalignment "requires significant displacement out of line resulting from factors that include deformity of other joints". In his report of 29 February 2000, he stated that regardless of whether the earlier SoPs contained the term "significant", his view was that for malalignment to be a relevant factor, "displacement would have to have clinical significance".
Professor Sambrook noted that in making its decision the Veteran's Review Board placed emphasis on Dr Laird's comments in his report of 25 June 1998 that the Veteran had no evidence of malalignment. The Veteran's Review Board also noted that the x-ray reports indicated normal alignment. In response Professor Sambrook made the following comments at page 5 of his report of 21 June 1999:
"….any such malalignment would be intermittent and occur only on walking, when Mr Avery placed most of his weight on his left knee to favour his right and similarly would not necessarily be apparent on x-ray when he would be resting or on standing for examination on a couch. Thus the available medical evidence should not be taken as discounting this possibility.
Having said that, there is little deformity in the knee joint, rather there is more pain on weight bearing and the overall picture on x-ray is one that is not necessarily more advanced then (sic) one might expect for Mr Avery's age. Accordingly, on a balance of probabilities test, it is less probable than not that his back is related to his altered gait but if a more liberal test is used, given his operational service, then I think his case is in the realm of what was previously call (sic) a reasonable hypothesis."

MEDICAL REPORT OF DR M BURNS

Dr M Burns, occupational physician, examined the Veteran on 21 October 1999 and his medical report dated 22 October 1999 was before the Tribunal as Exhibit R4. Dr Burns assessment of Mr Avery was as follows: "For his accepted disabilities alone an impairment rating of 20 points and a lifestyle rating of 3 would give him an incapacity of 50%. If his back problems were included then a combined impairment rating of 35 points and a lifestyle rating of 3 would give him an incapacity of 60%."
Dr Burns also provided an opinion about Mr Avery's capacity to work. He opined that it would be possible for the Veteran to be retrained but that it would be impossible for him to return to his previous profession as a classroom teacher and unlikely that he would be able to be employed in the workforce. At page 5 of his report he stated that:
"Mr Avery is in a difficult situation due to his age. If he were 25 years old I would say that he should certainly be retrained as he would have reasonable work potential. If he were 65 years old I would say that retraining was not warranted. As he is 51 years of age he is somewhere in the middle.
I believe that it is possible that he could be retrained but it is unlikely that he would obtain a job due to his age and where he lives. I note that he is currently doing remedial teaching at school for between 8 and 10 hours per week. I thus believe that he obviously has some work potential for at least that many hours per week. I do not believe, though, that it is likely he could work beyond 20 hours per week. Unless he was in a situation where he could stand and walk around as required."

SUBMISSIONS AND CONCLUSIONS

In coming to a decision I have to take into account all the evidence both written and oral, the legislation and case law to make the correct and preferable decision, and decide whether Mr Avery's osteoarthrosis of the thoracolumbar spine or thoraco-lumbar spondylosis was war-caused within the terms of section 9 of the Act. A further claim before the Tribunal was whether Mr Avery qualified for disability pension at the Special Rate (section 24 of the Act).
It was uncontroverted and I accepted the data that Mr Avery served on operational service from 1 October 1969 to 12 May 1970. The earliest date of effect was this matter is 8 July 1996.
THE CORRECT STATEMENT OF PRINCIPLES TO APPLY
There is no doubt that pursuant to section 120A of the Act, I am bound to apply the appropriate RMA Statements of Principles because the Veteran's application was lodged after 1 June 1994.
This hearing was adjourned at the end of the oral evidence and submissions to await the decision in Keeley (supra) to be handed down by the Full Court of the Federal Court. The representatives took the opportunity of making final written submissions with regard to the application of the appropriate SoPs based on the judgement of the Full Court of the Federal Court in Keeley (supra).
Mr Whitelaw argued on behalf of the Applicant that the issue to be taken into consideration was the accrued rights of the Applicant. He submitted that neither the Act nor the current SoP expressed any intention to oust the application of section 50 of the Acts Interpretation Act 1901. The Applicant's argument was essentially that the only issue for the Tribunal to decide in selecting the appropriate SoP to apply, was to determine which was in fact more beneficial to the Applicant.
The Respondent, on the other hand, submitted that the role of the Tribunal, being "to replace the decision of the Commission with the 'decision that should have been made by the Commission had it properly applied the law as it stood'", meant pursuant to Keeley (supra), the SoP to be applied was that in force at the time of the decision of the Repatriation Commission.
I noted the arguments of Mr Whitelaw in regards to accrued rights, and noted further that there was no question in Mr Avery's case that applying the SoPs which were in force at the time of the Repatriation Commission decision did not disturb them. Therefore, the SoPs I have consulted were those in force at the time of the primary decision made by the Repatriation Commission.
The correct diagnosis of the Veteran's condition was raised as a preliminary issue. Mr Avery's condition had been referred to variously as osteoarthritis of the thoraco-lumbar spine (Repatriation Commission - T9), osteoarthrosis thoraco-lumbar spine (Veterans' Review Board - T17 and Dr Glass – T7/28), and spondylosis (Professor Sambrook - Exhibits R2 and R3). The Veterans' Review Board had applied SoPs relating to osteoarthrosis.
I noted that Mr Whitelaw submitted for the Applicant that he suffered from thoraco-lumbar spondylosis, a non-inflammatory degenerative disease of the spine. However, Mr Whitelaw conceded that it did not matter if the Tribunal termed the condition as osteoathrosis of the spine and therefore used the relevant SoPs concerning osteoarthrosis, or termed the condition thoraco-lumbar spondylosis and therefore applied the relevant SoPs concerning thoracic and lumbar spondylosis.
The parties did not disagree, and I accepted that although the Repatriation Commission had applied SoPs concerning osteoarthrosis at the time of making its decision on 3 December 1996, the correct SoPs to be considered in this case were:

Thoracic Spondylosis: Instrument No.103 of 1995 as amended by No.332 of 1995 and No.356 of 1995
Lumbar Spondylosis: Instrument No.105 of 1995 as amended by No.334 of 1995 and No.358 of 1995

APPLICATION OF PRINCIPLES IN REPATRIATION COMMISSION v DELEDIO (1998) 83 FCR 82

I am mindful that the approach in decision-making involving operational service such as Mr Avery served, was set out by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and was approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
"…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war–caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war–caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

With respect to determining when a hypothesis is reasonable, I noted Heerey J's approach which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Repatriation Commission v Deledio (supra):
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

I turned then to decide whether applying the principles set out in Repatriation Commission vDeledio (supra), the material before me raised an hypothesis connecting Mr Avery's condition of thoraco-lumbar spondylosis with his war service. I was mindful that no fact finding arose at this stage, nor was the reasonableness of the hypothesis at issue.
Firstly, there is no doubt that Mr Avery suffered injury to his right knee during his operational service. I noted that the Veteran's accepted disabilities were torn lateral meniscus of the right knee and osteoarthritis of both knees. The medical evidence before me of Dr Baz, Professor Sambrook and Dr Laird indicated to me that Mr Avery suffered thoraco-lumbar spondylosis. Mr Avery's evidence and that in documents at Exhibits A3, A4 and A5 left this in no doubt, nor that he had left his work as an industrial arts teacher because he could not stand for the long periods required in that job.

From all the material before me, the evidence of Mr Avery and the medical evidence, the submissions of Mr Whitelaw, and on one view, the concession of the Respondent, I found that there was an hypothesis connecting the condition of the Applicant with his service.
I was required then to consider whether there was an appropriate SoP which could be applied to the situation. As discussed earlier in these reasons, the following SoPs applied at the time of the primary decision, and therefore in applying Keeley (supra) in my decision-making, I found they were the appropriate Instrument for these purposes. I had also to decide whether the hypothesis was reasonable by considering whether the development of the Applicant's thoraco-lumbar spondylosis was consistent with the template in the SoP.
The factors raised in the SoPs are of course those that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the condition of the Veteran, in this case, Mr Avery's condition of thoraco-lumbar spondylosis with the circumstances of his service.
The SoPs to be applied were as follows:
· Thoracic Spondylosis: Instrument No.103 of 1995 as amended by No.332 of 1995 and No.356 of 1995
· Lumbar Spondylosis: Instrument No.105 of 1995 as amended by No.334 of 1995 and No.358 of 1995
Mr Whitelaw submitted that the Applicant relied on satisfying Factor 1(d) of the SoP No.103 of 1995 which stated: "having a malalignment of the relevant joint before the clinical onset of thoracic spondylosis."
I noted further that in Instrument No.356 of 1995, Factor 1.(d) had been amended to read: "having a malalignment of the thoracic spine before the clinical onset of thoracic spondylosis."
In each case, what was required to meet the test was that any malalignment Mr Avery claimed he suffered must have occurred before the clinical onset of spondylosis.
Thoracic spondylosis was defined in Instrument No.103 of 1995 to be:
"…degenerative changes in the thoracic spine, including changes in the vertebral body, the intervertebral disc, the ligamentum flavum, the zygapophyseal joints, the vertebral joints, and the other ligamentous structures of the thoracic spine, attracting ICD code…"
This was amended in Instrument No.332 of 1995, and applies also to No.356 of 1995. It read as follows:
"thoracic spondylosis" means a degenerative joint disease affecting the thoracic spine, causing local pain and stiffness, associated with degenerative changes in the thoracic spine, attracting ICD code 721.2…."
Malalignment was defined in Instrument No.103 of 1995 as "the displacement out of line resulting as the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length."
As to the SoP for lumbar spondylosis; the Applicant relied in Instrument No.105 of 1995 on Factor 1.(d):
"having a malalignment of the relevant joint before the clinical onset of lumbar spondylosis"
Lumbar Spondylosis was defined in Instrument No.105 of 1995:
"lumbar spondylosis" means degenerative changes in the lumbar spine, (L1-L5, L5-S1) including changes in the vertebral body, the intervertebral disc, the ligamentum flavum, the zygapophyseal joints, the vertebral joints, and the other ligamentous structures of the lumbar spine, attracting ICD code …"
The definition was amended in a minor way in Instrument No.334 of 1995 and 358.of 1995 as follows:
"lumbar spondylosis" means a degenerative joint disease attracting ICD code 721.3 ….affecting the lumbar spine, (L1-L5, L5-S1), causing local pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by protruding discs or osteophytes, and having degenerative changes in the lumbar spine;"
For the sake of completeness, although I applied the SoPs concerning spondylosis, I have also included the definition of malalignment from Instrument No.71 of 1995 concerning osteoarthosis which is defined as follows, and clearly very similar:
"malalignment" means the displacement out of line resulting as the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length;…"
I was mindful that the Veterans' Review Board stated that there was no dispute concerning the diagnosis of Dr J Glass who in his report of 12 November 1996 diagnosed the Veteran as having osteoarthrosis of the thoraco-lumbar spine. Both that diagnosis and the diagnosis of thoraco-lumbar spondylosis were undisputed before me, and I accepted that Mr Avery suffered that condition.
Mr Whitelaw submitted that the Veteran's osteoarthosis of the lumbar spine was caused by malalignment of his thoraco-lumbar spine that was directly linked to the accepted disability of osteoarthritis of his knees. It was the disabilities in Mr Avery's knees, he argued, which created the circumstances of malalignment while the Veteran was mobile or standing, due to his altered gait or shift in stance or posture.
Mr Marsh, on the other hand, emphasised that at T8/24, a written note by a departmental medical officer, Dr Klaus stated:
"no malalignment is noted by the rheumatologist Dr Glass and Dr Laird … makes no mention of spinal problems secondary to A/D."
Mr Marsh also submitted that an x-ray report of the Veteran dated 12 August 1998 at T16/64 stated: "Bone morphology and alignment are normal", and that Dr Laird in his report of 25 June 1998 at T16/62 stated:
"This gentleman did not appear to have any evidence of mal-alignment. He did not appear to have any evidence both clinically and radiologically of mal-alignment."
I was mindful that Professor Sambrook's opinion was sought regarding the application of the term "significant malalignment" in relation to Mr Avery, as previously it had been thought that an application of the most recent (1999) SoP with that more onerous definition was necessary. I was also mindful that Professor Sambrook had opined his report:
Accordingly, on a balance of probabilities test, it is less probable than not that his back is related to his altered gait but if a more liberal test is used, given his operational service, then I think his case is in the realm of what was previously call (sic) a reasonable hypothesis."
Professor Sambrook also opined:
"….any such malalignment would be intermittent and occur only on walking, when Mr Avery placed most of his weight on his left knee to favour his right and similarly would not necessarily be apparent on x-ray when he would be resting or on standing for examination on a couch. Thus the available medical evidence should not be taken as discounting this possibility."
Mr Marsh made the following comments regarding Professor Sambrook's opinion of whether the Veteran had malalignment:
"Now, as a matter of language, Senior Member, it is submitted that "permanent" has a fairly clear and unambiguous meaning, and if Dr Sambrook is saying that first of all it needs to be permanent, and then goes on to say 'it's only permanent when he is walking', the logical conclusion is that it is not permanent, its temporary or intermittent. It's not present when he's not walking. 'Not walking' means other possibilities, like sitting, standing or lying. He acknowledges the need for it to be permanent and goes on to say that in this case it's not permanent, it's only present on an intermittent basis when in fact the patient is weight-bearing or walking. By doing so, it's the respondent's submission that Dr Sambrook has put his own gloss on the meaning of the phrase as defined."
I considered the medical evidence before me and noted that Professor Sambrook in considering whether Mr Avery's back problems were related to his altered gait, opined that given his operational service, Mr Avery's case was "in the realm" of meeting the test for the reasonable hypothesis. Mr Marsh, as quoted above, was concerned that Mr Avery's malalignment was not "permanent" because it only occurred when he was walking or standing, i.e. weight bearing, described as a "functional malalignment" by Professor Sambrook.
I noted Mr Marsh's argument with regard to the malalignment being "permanent" rather than intermittent or on standing, and was mindful that the word "permanent" did not feature in Factor 1.(d). Clearly, where a condition was intended to be "permanent", the definition included the word "permanent" such as in relation to Factor 1.(f) and 1.(g) of SoP No.105 of 1995 and No.103 of 1995. I therefore rejected that submission.
I was, however, persuaded by Mr Marsh's argument regarding the absence of any concept of "functional malalignment" in the SoP. My understanding of a malalignment was that it could be said to be present either permanently or intermittently, and could meet the definition in the relevant SoP, or as here, when one took into account the rest of the medical evidence, it did not.
I noted that Dr Baz commented on the fact that Mr Avery could not straighten his right leg, adding that this would cause abnormal stresses on his spine. Mr Marsh submitted that Dr Baz opined that the spine was of normal alignment, which he submitted meant there was no malalignment. I noted Dr Baz's reply to Mr Marsh in cross-examination where she agreed that Mr Avery did not have a malalignment when he was standing.
Mr Whitelaw submitting that Professor Sambrook found that Mr Avery satisfied the factor in the later SoP for "significant displacement" indicated that he satisfied the easier test for displacement malalignment.He submitted this evidence had not been rebutted and relying on Owens v Repatriation Commission (1995) 59 FCR 559 submitted that simply because there were conflicting medical reports (for example from Dr Laird), did not indicate that a reasonable hypothesis had not been raised. In Owens (supra) Davies, Einfield and Drummond JJ cited the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 as authority for the proposition that conflicting medical reports did not preclude a reasonable hypothesis being satisfied. The High Court held at 414-5 that:
"The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists ...
However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature". Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge …
But it is vital that the Commission keep in mind that that hypothesis (that there is a connection between the incapacity or death and the service of a veteran) may still be reasonable although it is unproved and opposed to the weight of informed opinion."
Mr Marsh submitted that on weighing up all the material the hypothesis was not a reasonable one. I considered his submission and accepted that the only real finding of malalignment was by Professor Sambrook who, in fact, qualified it to find functional malalignment occurring only when the Veteran was standing or walking. Therefore, I cannot find that that meets the necessary test to satisfy the relevant factor in the SoPs for either thoracic or lumbar spondylosis.
I was mindful in coming to a decision regarding whether a reasonable hypothesis had been raised to find the connection between Mr Avery's condition of thoraco-lumbar spondylosis with his war service of the Act, that it was not a matter of proving anything or weighing up the numbers of medical reports against each other. Having considered all the medical evidence as well as the evidence of the Applicant, I was satisfied from the material before me, including the radiological evidence that no reasonable hypothesis had been raised to find the connection between Mr Avery's condition of thoraco-lumbar spondylosis with his war service. He did not satisfy Factors 1.(d) in either the SoP concerning lumbar or thoracic spondylosis, in that on the radiological and medical evidence, he did not have a malalignment of the lumbar or thoracic spine before the onset of spondylosis.
I took into account the indicia in section 120(3) of the Act and found that on the basis of consideration of the whole of the material before me, I was of the opinion the material did not raise a reasonable hypothesis connecting Mr Avery's condition with his operational service.
I found applying section 120(1) of the Act that I was convinced beyond reasonable doubt that Mr Avery's condition cannot be said to have been war-caused. Therefore, the application must fail and the reviewable decision be affirmed.
ASSESSMENT – WHETHER MR AVERY SATISFIES THE REQUIREMENTS TO RECEIVE PENSION AT THE SPECIAL RATE PURSUANT TO SECTION 24 OF THE ACT
Mr Whitelaw submitted that the Applicant's accepted disabilities together with his spondylosis would lead to assessment at 70% of the General Rate pension, the threshold for Special Rate pursuant to section 24 of the Act. Mr Whitelaw added that the evidence before the Tribunal of Dr Baz, the documents relating to Mr Avery's employment, and Dr Burns' opinion relating to Mr Avery's inability to resume remunerative employment would indicate that he was eligible for pension at the Special Rate. Mr Whitelaw acknowledged that there was an issue regarding the possibility of retraining and that if that was so, it would take Mr Avery out of the scope of the Special Rate pension. However, he submitted and I accepted that the provisions of section 28 of the Act were such that retraining was not the issue. I was mindful that the considerations in section 28 of the Act, which (in summary) were the "vocational, trade and professional skills, qualifications and experience of the veteran" and the reduced capacity to work due to Mr Avery's condition.
Mr Whitelaw also submitted that the fact Mr Avery did voluntary work at his wife's school should not be seen as his ability to contribute in the workforce. He emphasised the school did not rely on him and he contributed as he was able, which assisted him with maintaining his psychological welfare. I noted in that regard that Mr Avery was in fact able to contribute 10 hours a week in his work at the school. I preferred the submissions of Mr Marsh, who submitted that Mr Avery had a residual capacity to undertake sedentary work, and submitted further that voluntary work could not be ignored as to the test of capacity to work.
Mr Whitelaw submitted that the differences in assessment between Dr Baz and Dr Burns were not great and that the Tribunal could in any case make its own findings based on a combination of the two doctors' assessments. In that regard he referred to evidence given regarding the time each doctor spent in examining Mr Avery, emphasising that Dr Baz spent an hour examining and speaking with Mr Avery, while Dr Burns spent only 20 to 25 minutes. I must say that as I did not find the report of Dr Burns less than thorough, I did not consider this to be of relevance in deciding the matter before me. Mr Whitelaw submitted I should be persuaded on all the evidence to accept the lifestyle rating of 3 which Dr Baz gave the Applicant.
Mr Marsh conceded that the Respondent accepted 10 points as appropriate for joint pain pursuant to Table 3.4.1. He then submitted that on functional effect of the lower limbs, Mr Avery should be rated at 10 points, pursuant to Table 3.2.2 whereas Mr Whitelaw submitted 15 was more appropriate. Mr Marsh also submitted as to Table 3.1.1. that 10 points was appropriate. In summary, Mr Marsh submitted that the maximum impairment score Mr Avery could reach would be 35, with the maximum lifestyle rating being 3 and leading to a pension at 60% of the General Rate. He would therefore not be able to meet the requirement of at least 70% incapacity envisaged in section 24(1)(a) of the Act.
I accepted that as Mr Avery's osteoarthrosis or thoraco-lumbar spondylosis was found not to be war-caused, it was unlikely he could reach the 70% threshold for consideration of special rate pension. In any case, I considered he had some residual capacity to do sedentary work. The test at section 24(1)(b) of the Act was not satisfied.
Mr Marsh submitted that the assessment issue be remitted to the Respondent for consideration and I am in agreement and accordingly so remit.
DECISION
The Tribunal affirms the decision of the Repatriation Commission dated 3 December 1996 which affirmed the decision of the Veterans' Review Board of 14 December 1998 to find that Mr Brian Douglas Avery's condition of osteoarthrosis thoraco-lumbar spine or thoraco-lumbar spondylosis was not war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986.
The question of assessment is remitted to the Repatriation Commission for its consideration.

I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ettinger
Signed:         .....................................................................................
     Associate
Date/s of Hearing  1 March 2000
  Closing Submissions 14 June 2000
Date of Decision  12 July 2000
Counsel for the Applicant        Mr C Whitelaw
Solicitor for the Applicant         Mr S Lurie
Counsel for the Respondent    N/A
Advocate for the Respondent Mr J Marsh