Brackenreg and Comcare
[2002] AATA 1325
•18 December 2002
CATCHWORDS – COMPENSATION
– home help assistance – what is reasonably required as a result of her injury – identification of injury – decision affirmed.
Administrative Appeals Tribunal Act 1975 ss. 25, 37, 42A(1A) and (1B), 42C and 43
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 8, 14 to 31, 34 to 39, 54, 55, 56, 60, 62, 64, 114B and 137; Part V and Part X
Trade Practices Act 1974 s. 50
Lower v Comcare [2002] FCA 1394
Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority and Others (No. 3) (1992) 28 ALD 368
Bogaards v The Commonwealth of Australia (1988) 15 ALD 313
Re Quinn and Australian Postal Commission (1992) 15 AAR 519
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
Comcare Australia v Hill (1999) 56 ALD 487
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Comcare v Pamela Burton, in her capacity as a Senior Member of the Administrative Appeals Tribunal and Wendy Lees [1998] FCA 1144
Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 92 ALR 395
DECISION AND REASONS FOR DECISION [2002] AATA 1325
ADMINISTRATIVE APPEALS TRIBUNAL )
) D2000/4
GENERAL ADMINISTRATIVE DIVISION )
Re DEBORAH BRACKENREG
Applicant
And COMCARE
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 18 December, 2002
Place: Melbourne
Decision:The Tribunal affirms the reviewable decision of the respondent dated 30 November, 1999 in relation to home help assistance.
S A FORGIE
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) D2000/4
GENERAL ADMINISTRATIVE DIVISION )
Re:DEBORAH BRACKENREG
Applicant
And:COMCARE
Respondent
Tribunal: Miss S A Forgie (Deputy President)
Place: Melbourne
Date: 23 May, 2003
DIRECTION REGARDING DECISION NO. 1325/2002
Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975 and upon being satisfied that there is an obvious error in the text of the decision and reasons for decision published on 18 December, 2002, the Registrar is directed to alter the text of the decision and reasons as follows:
Decision
delete the decision; and
insert: “The Tribunal sets aside the reviewable decision of the respondent dated 30 November, 1999 and substitutes a decision that the respondent is not liable to pay compensation to the applicant for household services.”
Reasons for decision
page 26, paragraph 54
delete paragraph 54; and
insert: “For reasons I have given, I set aside the decision of the respondent dated 30 November, 1999 and substitute a decision that the respondent is not liable to pay compensation to the applicant for household services.”
S A FORGIE
Deputy President
REASONS FOR DECISION
On 28 January, 2000, the applicant, Ms Deborah Odile Brackenreg, applied for review of two reviewable decisions of a delegate of the respondent, Comcare, dated 30 November, 1999. One of the reviewable decisions affirmed an earlier determination of another delegate dated 20 September, 1999 that Ms Brackenreg was entitled to two hours of home help assistance each fortnight rather than four hours of home help assistance each week. The other reviewable decision affirmed an earlier determination dated 24 September, 1999 that Ms Brackenreg was not entitled to a metal hip flask.
Initially, Ms Brackenreg represented herself but she was then represented variously by her solicitors, Mr Morris and Mr McIntyre. Miss Ford of counsel represented Comcare. The documents lodged by Comcare pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) (“T documents”) were admitted in evidence together with a document setting out the date on which home help services and gardening services had been rendered to Ms Brackenreg between 13 January, 1999 and 8 May, 2000 and the amount paid by Comcare for those services and a copy of a Home Assessment report by Ms Miriam Blakemore on 9 May, 2000. On 26 June, 2001, Comcare submitted a bundle of documents relating to the history of the determinations that it had made in relation to Ms Brackenreg. On 15 October, 2002, Ms Brackenreg submitted various documents and determinations relating to her injury. Regard has also been had to those documents. Oral evidence was given by Ms Brackenreg and her general practitioner, Dr George Chong Wah.
THE ISSUE
During the course of the hearing, Ms Brackenreg withdrew her application to review Comcare’s reviewable decision relating to the hip flask. As her withdrawal was not in writing, it is not deemed to have been dismissed by virtue of the operation of ss. 42A(1A) and (1B) of the AAT Act. Despite the absence of a written document, I am satisfied that Ms Brackenreg withdrew her application. Therefore, her application ceased to exist with regard to the reviewable decision relating to her hip flask (see Lower v Comcare [2002] FCA 1394 and Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority and Others (No. 3) (1992) 28 ALD 368. Therefore, I have taken no further action with regard to that application or to the reviewable decision to which it refers.
The issue for consideration was whether Ms Brackenreg is entitled to be paid compensation for household services and, if so, the amount of household services to which she is entitled under the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”). Resolution of that issue requires consideration of the household services that Ms Brackenreg reasonably requires as a result of an injury to her.
During the course of the hearing, it became apparent that a further issue required resolution. That is whether regard may be had to any household services that Ms Brackenreg may reasonably require as a result of a syrinx from which she suffers. At a hearing held on 25 July, 2001 to consider the issue after the parties had been given an opportunity to prepare submissions on the point, I made a decision that the only injury which could be taken into account was that for which liability to pay compensation had been accepted i.e. musculo ligamentous neck injury and not syringomyelia or any other condition. These reasons also incorporate reasons I have already given orally for that decision.
LEGISLATIVE FRAMEWORK
Sub-section 14(1) of the SRC Act provides that:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
Exceptions are specified in ss. 14(2) and (3):
“(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
The word “injury” is defined in s. 4(1) to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
9. The types of compensation that Comcare is liable to pay are set out in Part II of the SRC Act. Section 29 of that Part provides that, subject to s. 29 (5), which is not relevant in this case:
“… where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.”
Sub-section 29(2) provides that:
“Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a)the extent to which the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b)the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c)the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d)the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e)the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).”
PAST DETERMINATIONS
On 17 March, 1984, Ms Brackenreg sustained an injury in a motor vehicle accident while she was travelling to work. At the time, she was employed by the Northern Territory’s Treasury Department as a Computer Operator Grade 2. On the basis of the written material submitted in this case, I find that the following determinations have been made by Comcare or its predecessor, the Commissioner for Employees’ Compensation (“the Commissioner”), in relation to Ms Brackenreg since 17 March, 1984 and that the following related events have occurred:
1.12 March, 1984: Ms Brackenreg lodged a claim for compensation whiplash, sprained shoulder and broken teeth arising out of motor vehicle accident on 7 March, 1984.
2.30 April, 1984: Determination that Commissioner liable under the Compensation (Commonwealth Government Employees) Act 1971 (“1971 Act”) (the predecessor of the SRC Act) in respect of the “Musculo-Ligamentous neck injury” sustained in the motor vehicle accident.
3.3 April, 1985: “In the matter of the claim …in respect of musculo ligamentous neck injury”, a delegate of the Commissioner determined that Ms Brackenreg was entitled to payment of compensation from 26 November, 1984 to 18 January, 1985.
4.undated 1987: “In the matter of the claim …in respect of musculo ligamentous neck injury”, a delegate of the Commissioner determined the amount of weekly compensation payments to which Ms Brackenreg was entitled from 24 October, 1986 to 7 January, 1987.
5.7 June, 1990: In “… respect of musculo-ligamentous neck: injury …” a delegate of Comcare determined that there was insufficient medical evidence to establish that Ms Brackenreg continued to be totally incapacitated for work. Therefore, he decided that the Treasury Department was not liable, from 7 June, 1990, to pay compensation in respect of the injury she had sustained.
6.18 April, 1991: In “… respect of musculo-ligamentous neck injury …” a delegate of Comcare determined that, on the basis of the evidence before him, including specialist medical opinion, Ms Brackenreg was no longer incapacitated for work and weekly payments of compensation would cease from 18 April, 1991.
7.25 April, 1991: Ms Brackenreg applied for review of the determination dated 18 April, 1991.
8.15 July, 1991: After considering all of the medical evidence, a delegate of Comcare concluded, among other matters, that “Ms Brackenreg has a small syrinx, or fissure, in her cervical spine and a small amount of protrustion of a cervical intervertebral disc.”. He also concluded that “Medical opinion is divided on the severity of these conditions and their effect on Ms Brackenreg, but on the balance of probability …[he] believe[d] that this is causing pain and a degree of incapacity for work”. After expressing several other conclusions, the delegate “… decided to revoke the determination of 18 April 1991, and in its place make a decision that compensation is payable under section 132A of the Act, having regard to an ability to earn based on 15 hours per week employment at the appropriate NT Public Service rate for a base grade graduate entry clerical officer”.
9.7 August, 1991: Ms Brackenreg applied to the Tribunal for review of the reviewable decision dated 15 July, 1991.
10.4 October, 1991: Compensation payments were reinstated from 4 October, 1991 on the basis that Ms Brackenreg was totally incapacitated for work.
11.5 November, 1992: “In the matter of the claim …in respect of musculo ligamentous neck injury”, a delegate of Comcare determined that Ms Brackenreg was not incapacitated for work as a result of the injury sustained on 7 March, 1984 and that any symptoms from which she then suffered were not the result of the incident on 7 March, 1984. Furthermore, the delegate decided that Ms Brackenreg was not entitled to weekly compensation from 5 November, 1992, for certain travel expenses or household cleaning services.
12.14 December, 1992: Ms Brackenreg applied for review of the determination of 5 November, 1992.
13.17 February, 1993: A delegate of Comcare affirmed the decision dated 5 November, 1992.
14.23 March, 1993: Ms Brackenreg applied to the Tribunal for review of the reviewable decision dated 17 February, 1993.
15.23 November, 1993: The Tribunal affirmed the decision not to pay compensation from 5 November, 1992. As recorded in the judgement of the Federal Court on appeal from the decision, the Tribunal recorded the following in its reasons:
“ The Tribunal said that medical evidence was to the effect that the syrinx could be a naturally occurring phenomenon or it could be caused by trauma. The Tribunal also said that the medical evidence suggested that, if it were caused by trauma, it could have been caused by the motor vehicle accident on 7 March 1984. The Tribunal continued:
"There is some doubt as to whether that would be so in light of the fact that for a trauma to be severe enough to cause a syrinx there should also be some degree of damage to the spinal cord. Any such damage would, from the medical evidence, be likely to show up immediately after the damage. In Ms. Brackenreg's case it seems from the medical evidence that there is no evidence of any spinal cord damage and there was no evidence at the time of the accident that she suffered any spinal cord damage."
The Tribunal added:
"5. Those medical witnesses who suggested that the motor vehicle incident created the syrinx and that the syrinx caused the applicant's disabilities do so largely on the basis that the applicant has claimed that she had no problems before 7 March 1984 and that she has been severely disabled ever since. Medical evidence of this nature relies very heavily for its acceptance on the credibility of the applicant. She is the only one who knows the full extent of her pain and disability."
6. The Tribunal said that the applicant had been observed, both in the Tribunal hearing room and in giving her evidence over two days. The Tribunal was "most unimpressed with her". It continued:
"I do not believe that she has been candid with her medical witnesses. Her sick leave records and other evidence elicited in cross-examination show that she had many medical problems including migraines, headaches and physical traumas well before 7 March 1984. She had about seven separate days off work between early October 1981 and late January 1984 with problems described as migraine or headache. She was off work from 29 June 1981 to 3 July 1981 due it seems to a fall off a horse. In 1982 she went over the top of a horse and hurt her back and fractured her foot. Also, at some time prior to the motor vehicle incident of 7 March 1984 she was thrown by a post-hole digger, seriously enough to be hospitalised. She also received a broken collarbone in a domestic argument. During her childhood she had many falls from horses. Some were quite serious falls including one at the age of 10 in which she broke her arm and her collarbone.
7. It is clear to me that the applicant was certainly not symptom-free before 7 March 1984. She had also suffered many serious physical traumas before that date."
There followed para 8 of the Tribunal's reasons in which it said:
"8. Since mid 1984 the applicant has done the following:
(a)She has completed a Bachelor of Arts Degree.
(b)She has done regular horseriding. In fact she bought a young horse in 1986.
(c)She has trained two large dogs.
(d)She has been president of the student's union at the university for 18 months.
(e)She has done aerobics and circuit work at a gym.
(f)She has tutored matriculation students part-time for twelve months.
(g)She has gone scuba diving.
(h)She has started a law degree.
She has done all of those things during a time in which she has claimed, and still claims, that she could not do a simple clerical job because of her pain.”
16.15 March, 1995: An appeal to the Federal Court was allowed and the matter remitted to the Tribunal to be heard and determined again. The appeal was allowed on the basis that the Tribunal had failed to give adequate reasons and had failed to comply with its obligations under s. 43 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”).
17.27 November, 1995: After Ms Brackenreg and Comcare reached an agreement, the Tribunal made a decision pursuant to s. 42C(1) of the AAT Act that:
“(a) the decision under review be set aside;
(b)there be substituted therefore [sic] a decision that:
(i)the respondent is liable to pay the applicant weekly compensation in respect of the applicant’s partial incapacity on and from 27 November 1995;
(ii)the calculation of the correct amount of weekly compensation is remitted to the respondent;
(c)the respondent pay the applicant’s costs incidental to these proceedings fixed in the sum of $30,000;
(d)…”.
At the hearing prior to the Tribunal’s making the consent decision, Mr Eriksen noted that it had been agreed between the parties that Ms Brackenreg had suffered injury as a result of the incident on 7 March, 1984. The injury was not specified.
18.In December, 1995, pursuant to s. 137 of the SRC Act Ms Brackenreg received a lump sum by way of redemption. She has not been paid incapacity payments since then.
19.3 February, 1998: In a letter written by Comcare to Dr Boyce seeking a report, it told him:
“As you are aware, liability was admitted for ‘whiplash’ although later investigation revealed that the employee suffered from a cervical syrinx. While medical opinion at the time was somewhat divided on the likely cause of the condition, at a subsequent legal proceeding it appears to have been accepted that the syrinx had developed as a result of the MVA.”
20.8 September, 1999: Ms Brackenreg claimed household services of four hours each week and included details of her condition of syringomyelia.
CONSIDERATION
The scope of the review
Mr Morris submitted that I am bound by the Tribunal’s decision made by consent pursuant to s. 42C(1) of the AAT Act. The effect of that order is that Ms Brackenreg has partial incapacity from 27 November, 1995, he continued. In submitting that the decision cannot be re-litigated without reason, Mr Morris relied on the judgement of Pincus J in Bogaards v The Commonwealth of Australia, (1988) 15 ALD 313 and of O’Connor J (President) and Mr Barbour (Member) in Re Quinn and Australian Postal Commission (1992) 15 AAR 519. In Bogaards, Pincus J had said that a consent order can support a plea of res judicata and in Re Quinn, the Tribunal said:
“It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds of the determination.” (page 526)
The Tribunal had also said:
“The Tribunal does not need to decide in this case whether as a matter of law the doctrine of estoppel examination of the extent of the original injury nearly 8 years ago would defy these principles.” (page 526)
In Mr Morris’s submission, there has been no allegation of a change of circumstance that justified my not being bound by the consent decision of the Tribunal in 1995.
In addition to the authorities to which Mr Morris has referred, I have had regard also to the judgement of the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 (Neaves, Ryan and Gummow JJ). In that case, it was alleged that the statutory duty of the Department had not been followed. Gummow J in Kurtovic concluded that in such a case:
“Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public …” (page 109)
In Kurtovic, the respondent attempted to base the estoppel on a letter from the Department of Immigration which carried an implication that if Mr Kurtovic gave no further cause to be deported, that he would not be deported. The Minister later decided to deport Mr Kurtovic. In that case, the Full Court was asked to prevent the Minister from making a decision within his powers in the exercise of his statutory discretion. The Full Court decided against Mr Kurtovic. One of the major themes in the judgement is that executive action is subordinate to legislation, and estoppel cannot be used to reverse that relationship.
In a more recent Federal Court decision of Comcare Australia v Hill (1999) 56 ALD 487, his Honour Justice Spender was asked to consider whether a decision of Comcare that it was liable for compensation to Mr Hill bound it to that conclusion upon a reconsideration. His Honour stated:
“It is clear that issue estoppel does not apply in respect of decisions of Comcare and of decisions of the AAT in relation to disparate claims, and the position is that the question of “work connection” under a claim pursuant s 24 of the Safety, Rehabilitation and Compensation Act is not precluded by an earlier determination.” (page 489)
It is clear from the principles in these cases that the first matter to which I must have regard is the nature of the decision under review. The decision under review in this case is the decision that Ms Brackenreg is entitled to only two hours of home assistance and not to four hours as she sought. In reviewing that decision, Mr Morris submitted that I am not entitled to consider whether Ms Brackenreg is entitled to home assistance at all, whether she suffered an injury in the course of her employment or whether she suffers from a partial incapacity.
I agree with Mr Morris that I am not entitled to consider whether Ms Brackenreg suffered an injury in the course of her employment. That was the subject of a determination first made on or about 30 April, 1984. It has not been set aside or varied by any subsequent determination. I also agree with him that I am not entitled to consider whether Ms Brackenreg suffered from a partial incapacity. That was the subject of the consent decision made on 27 November, 1995. Her request that Comcare make a determination that its liability to make further payments be redeemed by the payment to her of a lump sum was necessarily predicated on Comcare’s being “… satisfied that the degree of … [her] incapacity is unlikely to change”. That necessarily follows from the operation of s. 137(1)(c) of the SRC Act.
Whether I agree with Mr Morris that the effect of the consent decision is that I cannot consider whether or not Ms Brackenreg continues to suffer incapacity as a result of an injury is not a matter that I need consider for it is not relevant. An incapacity for work suffered by an employee as a result of an injury is an incapacity to engage in any work or an incapacity to engage in work at the same level at which he or she was engaged immediately before the injury (s. 4(9)). Section 29 is not predicated upon the employee’s incapacity for work but upon his or her requirement for household services resulting from the injury. Incapacity for work in the sense in which it is used in s. 4(9) and the requirement for household services are two different things. The computer programmer who is rendered a paraplegic by virtue of an injury arising out of his or her employment may not suffer an incapacity for work but may reasonably require household services as a result of his or her injury. The computer programmer who suffers a head injury may suffer an incapacity for work but may not reasonably require household services as a result of his or her injury.
I do not agree that I am not entitled to consider whether Ms Brackenreg is entitled to home assistance at all. My role is to undertake a de novo review of the reviewable decision, and so the determination dated 20 September, 1999, on its merits. I am not limited to the facts that were before the decision maker. The role that I must undertake was succinctly stated by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 when their Honours said:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. (page 589)
Having under taken that review, I may either affirm the decision, vary it or set it aside and either substitute another decision or remit the matter to Comcare for reconsideration in accordance with my directions or recommendations. That is the effect of s. 43(1) of the AAT Act.
It follows that the decision under review does not form some sort of base line or minimum to which Ms Brackenreg is entitled and I may only build upon it or add to it. Once review is sought of a decision, there is no base line or minimum. The whole subject matter of the decision may be reviewed.
It is important, therefore, to have careful regard to the decision of 20 September, 1999. The decision is that two hours of home assistance per fortnight was approved and that four hours per week would not be. That decision must be read in its legislative context and that is s. 29 that I have set out above (see paragraphs 9 and 10). When I do that, I must take the decision under review as deciding the amount that Comcare is liable to pay to Ms Brackenreg for household services. It is only liable to pay for those household services that she “reasonably requires” “as a result of an injury”. The injury to which s. 29 refers must be an injury in respect of which compensation is payable to Ms Brackenreg. That is the effect of s. 4(8) of the SRC Act for there is nothing in s. 29 to suggest that a different interpretation should be adopted. An injury in respect of which compensation is payable cannot simply be an injury asserted by Ms Brackenreg to have arisen out of, or in the course of her employment. It must be an injury for which compensation has been claimed in accordance with s. 54. This Tribunal can only consider an injury if Comcare has first made a decision accepting or rejecting liability for the Tribunal does not have jurisdiction to consider the matter unless such a decision has been made and has been reviewed.
This line of reasoning follows from Finn J’s judgement in Comcare v Pamela Burton, in her capacity as a Senior Member of the Administrative Appeals Tribunal and Wendy Lees ([1998] FCA 1144, 9 September, 1998) (“Lees’ case”). Ms Lees first claimed compensation for a work-related injury in May, 1995 and, on 16 October, 1995, Comcare accepted liability to pay compensation in respect of that injury. It also approved payment in respect of her absences of work due to her injury and the payment of her medical expenses in relation to that injury. Later, Ms Lees sought payment of taxi fares to enable her to travel to the rooms of those providing her medical treatment. Comcare decided on 9 April, 1997 that it would not pay those fares and made its decision under s. 16 of the SRC Act. It affirmed that decision on 9 April, 1997. Ms Lee sought review of that decision which was described as:
“A decision affirming a decision to deny payment of taxi fares to and from treatment for compensable illness.”
On 11 February, 1998, Ms Lees’ solicitors wrote to the tribunal giving notice that she would be “expanding the issues and claims in relation to these proceedings” and specified the expansion. In her Statement of Issues served on Comcare’s solicitors on 16 February, 1998, she stated that there would also be in issue:
“What other, if any, entitlements the Applicant has arising from the compensable conditions, the subject of these proceedings.”
On 25 March, 1998, Ms Lees specified that she was seeking compensation for permanent impairment under s. 24 of the SRC Act.
Finn J referred to s. 25 of the AAT Act which provides, in so far as it is relevant, that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment and in respect of which an application has been made to it.
Section 64 of the SRC Act provides that an application may be made to the tribunal by certain people for review of a reviewable decision. A “reviewable decision” is a decision made under either s. 38(2), which relates to rehabilitation decisions, or under s. 62 (s. 60(1)). Section 62 requires Comcare to re-consider particular determinations if a request to do so is made by a person specified in s. 62(2). Those determinations are:
“... a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 30, 31, 34, 36, 37 or 39, or under paragraph 114B(5)(a) or under Division 3 of Part X” (s. 60(1))
A decision under s. 8 relates to the calculation of a person’s normal weekly earnings. Decisions under ss. 14 to 31 relate to compensation. Those under ss. 34 to 39 relate to rehabilitation, those under paragraph 114B(5)(a) to the overpayment of compensation payments and those under Division 3 of Part X to special transitional provisions relating to certain former employees.
Of particular concern in Lees’ case were ss. 14 to 31. In essence, those sections provide for the payment of compensation of the type described in the headings to each of the sections:
section 14: Compensation for injuries
section 15:Compensation for loss of or damage to property used by employee
section 16: Compensation in respect of medical expenses etc.
section 17:Compensation for injuries resulting in death
section 18: Compensation in respect of funeral expenses
section 19: Compensation for injuries resulting in incapacity
section 20: Compensation for injuries resulting in incapacity where employee is in receipt of a superannuation pension
section 21: Compensation for injuries resulting in incapacity where employee is in receipt of a lump sum benefit
section 21A: Compensation for injuries resulting in incapacity if employee is in receipt of a superannuation pension and a lump sum benefit
section 22: Compensation where employee is maintained in a hospital
section 24: Compensation for injuries resulting in permanent impairment
section 25: Interim payment of compensation
section 27: Compensation for non-economic loss
section 29: Compensation for household services and attendant care services
section 30: Redemption of compensation
section 31: Recurrent payments after payment of lump sum
Part V of the SRC Act regulates the manner in which a claim may be made. Compensation is not payable unless a claim for compensation has first been made (s. 54(1)). A claim is made by giving, in both the Lees’ case and this, to Comcare:
“(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and
(b)except where the claim is for compensation under section 16 or 17 - a certificate by a legally qualified medical practitioner in accordance with the from approved by Comcare for the purposes of this paragraph.” (s. 54(2))
The person seeking compensation need not complete the form with precision for s. 54(5) provides that:
“Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.”
There must, however, be strict compliance in relation to the medical certificate referred to in paragraph 54(2)(b) for s. 54(3) provides:
“Where a written claim, other than a claim for compensation under section 16 or 17, is given to a relevant authority under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim shall be taken not to have been made until such a certificate is given to that authority.”
Sections 55 and 56 relate to the survival of claims where the person who was entitled to claim compensation has died.
Finn J in Lees’ case summarised the effect of Part V of the SRC Act in the following way:
“Part V of the SRC Act regulates the making of ‘claims for compensation’. While that Part clearly contemplates that a claim may be made under a particular section (see eg s 54(2)(b); s 54(3); s 55(4); s 56) for a particular type of compensation, it does not in terms require that a separate application be made in respect of each different type of compensation payment to which a particular claimant may be entitled.”
His Honour had also been referred to s. 43(1) of the AAT to which I have referred above (see paragraph 19 above). He went on to reject s. 43(1) as a source of jurisdiction for the tribunal and noted that the powers which it confers upon the tribunal are expressly for the purpose of “reviewing a decision” and cannot be used to extend its jurisdiction. Finn J then went on to note that the tribunal’s jurisdiction is limited to “reviewing what under the SRC Act is a “reviewable decision’” and what can amount to a reviewable decision is limited by what can be a determination capable of re-consideration by Comcare. He continued:
“Both forms of limitation, but particularly the latter, necessitate that it be ascertained what is the particular ‘reviewable decision’ that the Tribunal is to review: Secretary, Department of Social Security v Riley, above, at 105. The process of reviewing that decision is to occur in the setting of the question(s) that gave rise to the decision. And while in that process the Tribunal can exercise its s 43(1) powers, it nonetheless is obliged to answer the same question(s) as was (were) before the reconsideration decision-maker, Hospital Benefit Fund of Western Australia v Minister for Health, Housing and Community Services, above, at 234.”
In relation to the reviewable decision in Lees’ case, he said:
“... in the present case the identification of that question presents no particular difficulty. It may well be the case that Ms Lees is able to claim some number of the types of compensation specified in the SRC Act given the nature and consequences of her injury and her actual circumstances. But whatever the claims she may be able to make, what she has done was to seek the determination of a quite particular question - that of payment of taxi fares under s 16 of the Act. The determination and reconsideration of that question has created the conditions which gave the Tribunal jurisdiction to address that particular question. At the time of the primary decision no express request of hers had raised, as a practical matter, the consideration as well of her actual entitlement (if any) to compensation for permanent impairment.
Even if it is the case that Comcare of its own motion was obliged to determine on the facts from time to time her entitlements to particular benefits from time to time (irrespective of whether Ms Lees has actually adverted to them): cf Commonwealth of Australia v Ford, above, at 327; Comcare has not as yet done so in relation to compensation for permanent impairment. At best - and I make no finding on this - that failure might be shown to be such in the circumstances as to amount to a refusal to make a determination under s 24 of the SRC Act and hence constitute a ‘decision’ for the purposes of the AAT Act and thus the SRC Act: see AAT Act s 3(3)(a); SRC Act, s 60 ‘decision’. But all that could possibly flow for present purposes from a decision being so found would be that a s 62 SRC Act reconsideration could be had. Only if that had occurred - which it has not - would there be a reviewable decision such as would give the Tribunal jurisdiction to entertain consideration of compensation for permanent impairment. I would note in passing that it is the need for this additional step in the SRC Act review process - a step not contained in the Compensation (Commonwealth Government Employees) Act 1971 (Cth) - that precludes the Tribunal from acting as Commonwealth of Australia v Ford, above, would otherwise allow.
Given the twin limitations imposed on the Tribunal’s jurisdiction to which I referred above, it simply lacked jurisdiction to make a determination under s 24 of the SRC Act. It is important to emphasise that in SRC Act cases where Comcare’s liability to pay compensation has been accepted, it is not the Tribunal’s function to determine entitlements to compensation as such (ie as a primary decision-maker). Rather its function is to review decisions that have been made concerning entitlements and for that purpose to exercise as appropriate its s43(1) powers.”
Finally, Finn J considered that the scheme of the SRC Act itself supported his conclusion as to the tribunal’s lack of jurisdiction:
“... While Comcare’s acceptance of liability resulted in its being obliged to pay compensation to Ms Lees, that liability was to pay ‘in accordance with this Act’: SRC Act s14. While Part V of the Act allows Ms Lees to make a claim or claims for compensation, both Part II (types of compensation) requires and Part VI (reconsideration and review of determinations) presupposes, that before a particular type of compensation is paid, or for that matter denied to, Ms Lees, Comcare will have made a decision in relation to her entitlement to that type of compensation. As and when entitlement to such a type of compensation becomes an actual question for Comcare (either because of the claim made by Ms Lees or because of its own appreciation of the facts), it is then that the making of a decision is called for. And when so made, the reconsideration and review process can begin. That process is an integral part of SRC Act’s pathway to the Tribunal. It cannot be avoided by means of the jurisdiction asserted by the Tribunal in this matter.
Finally it has been asserted by the second respondent that a consequence of taking the applicant’s view of the legislation would be fragmentation and delay in the provision of compensation where the liability to compensate is not in dispute, and that this tells against the construction I have found. For my own part I am of the view that there is an order implicit in the statutory scheme - an order not inconsistent with the efficient management by Comcare of the provision of compensation to claimants.”
The only injury for which Comcare has accepted liability is musculo ligamentous neck injury. Reference was made in Comcare’s letters of 15 July, 1991 and 3 February, 1998, the Tribunal’s decision of 23 November, 1993 and the Federal Court’s judgement of 15 March, 1995 to Ms Brackenreg’s syrinx or to her suffering from syringomyelia but I have not been given a copy of any determination that Comcare has made expressly accepting liability for Ms Brackenreg’s syrinx or syringomyelia. The same can be said of Ms Brackenreg’s C5/6 disc lesion. There is no determination or decision by the Tribunal accepting liability for that condition.
Mr Morris submitted in his written submissions:
“As to household services the Applicant claimed for household services prior to the termination of benefits in November 1992. It is useful to consider the comments of the supplementary section 37 statement at point 4 on page 2 where it states:-
‘the determination of 5 November 1992 was based on the opinion of the neuro surgeons; the offer of suitable employment; the need for travel arising from the Applicant’s decision to move to a remote locality and the Applicant’s domestic circumstances allowing a reasonable expectation of assistance with household cleaning and gardening from her spouse … .
That statement encompasses the reasoning of the Delegate when ceasing payments. Although the Applicant does not seek to rely on conclusions of the Delegate, it is clear that both syringomyelia and household services were linked in 1992. The Respondent has paid household services for the disability suffered by the Applicant, and that disability clearly includes symptoms of syringomyelia.
…
… The plain fact of the matter is that there has been a determination by Comcare to the effect that the Applicant’s condition is caused by syringomyelia or a cervical syrinx. It is also quite clear that whether or not the Applicant’s condition in 1992 was caused by a cervical syrinx and/or cervical disc protrusion arising out of the accident on 8 March 1984 was the subject of dispute between the neurosurgeons, notably Drs Boyce and Reilly and that was clearly the issue being agitated before the Administrative Appeals Tribunals. It is the issue upon which the payments for compensation were ceased, it is the issue upon which the matter was taken to Administrative Appeals Tribunal, and it is the issue which was accepted by Comcare in finalising the claim by consenting to a judgment against it.” (submissions dated 4 May, 2001, paragraphs 10 and 11)
I do not read the history of the determinations in the same way. That of 5 November, 1992 was made in respect of Ms Brackenreg’s musculo ligamentous neck injury. It did not determine that Ms Brackenreg had suffered any injury other than musculo ligamentous neck injury. Whether or not Comcare paid for household services as a result of symptoms from syringomyelia, does not shape the injury for which it has accepted liability. I do not accept that the issue of whether Ms Brackenreg’s condition was caused by a cervical syrinx and/or cervical disc protrusion arising out of the accident was the issue being agitated before the previous Tribunal. The previous Tribunal reviewed the decision made by Comcare in the matter of the claim in respect of musculo ligamentous neck injury and the decision was that she was not incapacitated as a result of that injury, that she was not entitled to weekly compensation and that she was not entitled to certain travel expenses or household cleaning services. It was not a decision relating to a cervical syrinx. There is nothing on the face of the consent decision made by a later Tribunal that suggests that it was a decision relating to cervical syrinx or syringomyelia.
As I have said, adopting this process of reasoning, I cannot consider Ms Brackenreg’s syrinx on the basis that it is an injury for it is not the subject of a decision by Comcare and so not a matter in relation to which I have jurisdiction. Before leaving this issue, I should mention that I have considered whether Ms Brackenreg’s syrinx may be regarded as coming within the description of a musculo ligamentous neck injury for which liability has been accepted. I do not have the advantage of all the medical evidence before the previous Tribunal or the Federal Court but will set out the description of a syrinx given by Sheppard J on appeal:
“… As the result of a scan carried out in mid-1990, it was discovered that the applicant had a small syrinx in the cervical region at level C5/6. A syrinx may be described as a fistula which is an abnormal congenital or acquired communication between two surfaces or between a viscus or other hollow structure and the exterior. In some of the material before the Tribunal, the syrinx is described as a fissure in the applicant's cervical spine.” (pages 4-5)
What household services does Ms Brackenreg require as a result of her injury?
I will now consider what household services Ms Brackenreg requires “as a result of” her injury i.e. musculo ligamentous neck injury. The phrase “as a result of” has been considered in various contexts. Some of those previous authorities were summarised by Lockhart J in Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 92 ALR 395 in the context of s. 50 of the Trade Practices Act 1974. That section required him to consider whether, as a result of a corporation’s acquisition of shares in the capital or assets of a body corporate, it was in a position to dominate a market for goods or services. It was not an issue that was fully argued before Lockhart J so he expressed tentative views only:
“…It is not useful to attempt to put a gloss upon the words of the Act by substituting other words or by saying that the relationship must be ‘direct’ or ‘immediate’ or that it connotes a ‘sole’ or ‘dominant’ cause. In my view s 50(1) involves a concept of causal sequence of some kind; but ‘Attempted explanations of causation and consequence can, I feel, be as unhelpful and unhappy as definitions of reasonable doubt’: per Windeyer J in Commonwealth v Butler (1958) 102 CLR 465 at 479.
Section 50 creates an offence attracting the serious consequences of pecuniary penalties, divestiture and other remedies. There is I think much force in the view that the section should be construed in a similar way to provisions which impose criminal liability: Trade Practices Commission v Legion Cabs (Trading) Co-operative Society Ltd, supra; and Trade Practices Commission v Nicholas Enterprises Pty. Limited (1979) ATPR 40-126 at 18,352.
I do not derive much assistance from different statutory fields such as workers’ compensation. There are many cases relating to workers’ compensation legislation which consider whether incapacity ‘results from’ an injury: for example, Commonwealth v Butler, supra; Bushby v Morris (1979) 28 ALR 611; 54 ALJR 240; Conkey & Sons Limited v Miller (1977) 16 ALR 479; National and General Insurance Co. Ltd v South British Insurance Co. Ltd (1982) 149 CLR 327; 43 ALR 273. Cases also deal with questions of causation, consequence and nexus in the field of repatriation legislation: see Repatriation Commission v Law (1981) 147 CLR 635; 36 ALR 411.
For the purposes of s 50(1) it is not enough that the acquisition is the enabling circumstance of causa sine qua non of the effect on the market to which paras. (a) and (b) of that sub-section are directed. The acquisition must be either a sufficient cause of the existence or likely existence of the state of dominance or substantial strengthening of the power of dominance in the relevant market or one of a number of causes which together lead to or would be likely to lead to that state.” (page 411)
In the context of considering whether household services are reasonably required as a result of a person’s injury, it seems better to ask the simple questions: “Did he or she require household services as a result of his or her injury?” and, if so, “What household services were reasonable?”. In answering the first of those questions, it is necessary to separate household services required as a result of her injury for which he or she is entitled to compensation under the SRC Act from those required as a result of another injury or condition or as a result of a choice to devote his or her time to activities other than household services.
Ms Brackenreg said that exercise induces pain because of her syringomyelia. Exercise includes cleaning the house. She has not been able to keep its symptoms under control at all times. At times, she has been placed in traction in hospital and prescribed narcotics. That has not occurred very much as she listens to her body telling her when to slow down. Ms Brackenreg said that she is not doing as much as she was. She has two dogs and three cats all of whom live inside. Her three geese live outside the house and her horse is on agistment. She may take her horse for a twenty minute walk. She takes her dogs for a walk in the evening but does not now ride or walk her horse if she is under pressure elsewhere. She had not been horse riding for the previous six months. As a consequence, she has a more narrow lifestyle but her pain is more under control than it had been.
In giving evidence, Ms Brackenreg said that she had engaged in scuba diving, aerobics and circuit training after the motor vehicle accident in 1984. That continued for six years and she treated that pain as being all in her head. After her syringomyelia was diagnosed, it was easier for her to adapt her lifestyle. She was also prescribed drugs but they led to her developing ulcers and being hospitalised for them. She married in 1992 and her husband undertook some of the household duties for which Comcare had previously paid. A person came in for four or five hours each week to assist. Comcare did not pay for any household services in that period. Her marriage ended in separation in 1995 and Ms Brackenreg said that she continued to have a person come in for four or five hours each week. The hours depended upon her workload at University. If she undertook more units at University, she had more household help because she could not do everything. Her pain affects her capacity to study.
Since 1995, Ms Brackenreg said, she has not been hospitalised for pain. She does take to her bed for pain, though, and does so a couple of times each month. When she has overdone activity, she said that she cannot feel her hands and feet properly and walks into things. It does not take a lot to aggravate or to jar her neck. Two or three times a week, she needs to lie on the couch with a hot pack and watch television. Around exam time at the University, she tries not to do anything too physical in order to avoid getting too much pain that would reduce her ability to cope.
The medical advice that she has been given is that she should not exercise and she should not do anything that may aggravate her symptoms. She has also been advised that her syringomyelia will progressively worsen. She avoids certain activities in order to avoid the syringomyelia’s deterioration and to reduce her pain.
Since 1995, the level of household assistance that Ms Brackenreg has had has increased. It first increased in 1996 because she had more work at University and because she suffered from cancer. From about 1996 until 1999, she had about six or seven hours each week. Comcare paid for two hours per fortnight at the time and she paid for the remainder. Ms Brackenreg said that she has had 14 hours of household assistance since October, 1999. Seven hours household assistance each week is not sufficient, Ms Brackenreg said, but she wanted to be reasonable.
Ms Brackenreg said that she suffers from hayfever in recent years. It is severe and she suffers from it every day. Sneezing is quite a violent action that could aggravate her syringomyelia. She said that she cannot be around cleaning products because she will suffer an asthma attack. Vacuuming makes her sneeze and affects her hay fever as does sweeping. She suffers trouble hanging out clothes as it makes her sneeze and it hurts her arms and neck.
In cross-examination, Ms Brackenreg agreed with Ms Ford that she fell from a horse in 1992 and suffered a fractured skull. She also had another motor vehicle accident in 1994 and said that she damaged her knee. In 1996, she bought an ex-racehorse whom she has ridden but has twice fallen off in 1997 or 1998. Ms Brackenreg agreed that she had been in business with a partner operating a dog washing service. She did the books and answered the phone as well as putting the dogs into the hydro bath and putting the hose in. She did not have to use her hands as the hose did all of the work.
Ms Blakemore’s Home Assessment was commissioned on behalf of Comcare to determine the household assistance required by Ms Brackenreg. She noted at the outset of her report that Ms Brackenreg had been diagnosed with syringomyelia, C5/6 disc lesion, asthma and hayfever, dental problems, gastritis and post traumatic depressive illness. Ms Blakemore noted that medical opinion differs as to whether Ms Brackenreg’s syringomyelia resulted from her motor vehicle accident on 7 March, 1984.
In the section of her assessment headed “Discussion”, Ms Blakemore reported:
“Ms Brackenreg is currently receiving cleaning assistance for 7 hours per week. Her diagnoses that affect her ability to perform cleaning tasks are:
Syryngomyelia, and C5/6 disc lesion, as they cause neck and upper limb pain. Prolonged cleaning exacerbates the pain. Ms Brackenreg stated that if she does not receive cleaning assistance, many tasks do not get done, and the effort of housecleaning leaves her incapable of performing other study, work or leisure pursuits.
Allergies to dust and cleaning products: Ms Brackenreg stated that cleaning involving dust (ie. vacuuming, dusting, removing cobwebs) and using cleaning products (cleaning the toilet) cause an increase in nasal congestion, sneezing and coughing. This in turn aggravates her neck pain, and due to the syringomyelia, could potentially worsen her injury.
Ms Brackenreg has 7 hours of cleaning per week. It is understood that the reason she has a thorough clean of her house twice per week is to reduce the symptoms of her allergies. It is the experience of the occupational therapist that most homes are cleaned once every one or two weeks. It is recognised that her allergies are not due to the motor vehicle accident on 7 March 1984.
In his letter dated 10 July 1999, Dr Chong Wah indicated that Ms Brackenreg’s cervical pain limits her ability to perform tasks that require the use of ‘her hands and arms e.g. hanging up wasing (sic), lifting, opening cans, cutting and other finer hand movements.’ In his letter dated 30 October 1999, Dr Chong Wah stated that ‘With the condition of the type that Deborah has it is very difficult for her to accomplish easily many “normal” tasks this includes: hanging out the washing; cleaning windows; cleaning fans; cobwebs; vacuuming; washing floors and other associated type tasks.’
There seems to be no dispute that Ms Brackenreg’s C5/6 lesion occurred due to the motor vehicle accident on 7 March 1984, thought there there is differing opinion regarding whether the syringomyelia resulted from the accident. The occupational therapist is not able to determine what proportion of Ms Brackenreg’s neck pain, and upper limb pain result from her syringomyelia, and the proportion that arises from the C5/6 disc lesion.” (Exhibit 3, page 4)
Ms Blakemore recommended three options for the provision of household services:
“It is the opinion of the occupational therapist that the following cleaning assistance could be reasonably provided to Ms Brackenreg on a fortnightly basis, to reduce her neck and upper limb pain:
Vacuuming and mopping floors
Dusting and removing cobwebs
Cleaning the bathroom and toilet
Cleaning windows, cupboards and fans on rotation
Hanging out a load of large items of washing (sheets and towels).
…
Comcare could also elect to pay for cleaning on a weekly basis, with cleaning as outlined above on one week, and on the alternate week, providing only vacuuming and dusting, to reduce the dust and pet hair in the home. This would take into consideration that Ms Brackenreg’s home would become dusty due to having two dogs and three cats that are allowed inside. …
…
A third option is to continue the cleaning services as they currently stand, ie. performing the above tasks two times a week, with a total of 7 hours per week. This would provide the level of cleaning that Ms Brackenreg requires to miminise (sic) neck and upper limb pain, as well as her hayfevor (sic) and asthma.” (Exhibit 3, pages 4-5)
Dr George Chong Wah is Ms Brackenreg’s general practitioner and has been for the past ten years. In his report dated 10 December, 1997, he advised Comcare that Ms Brackenreg had complained of a general pruritis at times over the previous eight months. Pruritis showed itself as a fine macular rash on her shoulders. Dr Chong Wah considered that it resulted from a drug reaction although it was at times also associated with a photosensitive component. He noted that it also occurred after the ingestion of analgesics at night and that she was taking antihistamines. Dr Chong Wah found it difficult to blame any particular drug. He considered that Ms Brackenreg should see her neurologist regarding the progress of her syrinx as well as an allergist.
In his report of 10 July, 1999, Dr Chong Wah reported to Comcare that there had been adjustments to Ms Brackenreg’s medications. He continued:
“Some of her problems also relate to her ability to keep her house clean and maintain her yard due to her cervical pain, headaches and weakness in her arms from the syrinx. These have always been and will continue to be difficult tasks for anyone with her condition. She has had home help on and off since her condition was diagnosed. Comcare (TIO) had previously covered these costs but these had stopped on her marriage. She divorced in 1995 and now she lives alone and she had no access to help or family support.
The patient needs to be assessed by an occupational therapist to assess her ongoing needs and see if she can be assisted with her daily household tasks – particularly in relation to her hands and arms e.g. hanging up washing lifting, opening cans, cutting and other finer hand movements.” (T documents, page 51)
In cross-examination, Dr Chong Wah agreed with Miss Ford that Ms Brackenreg was able to do her housework if she was not incapacitated by pain. In doing her housework, she was not putting her syringomyelia at risk provided she did it without jerking. Syringomyelia, however, made it difficult for her as it causes her to lose strength. He also agreed that Ms Brackenreg had managed to do her own housework in the first few years after the injury. Between 1995 and October, 1999 she only had episodic assistance. Dr Chong Wah said that Ms Brackenreg had no option but agreed with Miss Ford that Ms Brackenreg could do her housework when not laid low with pain.
Having regard to all of the evidence, I am not satisfied that Ms Brackenreg reasonably requires any household services as a result of her injury for which she is entitled to be paid compensation i.e. musculo ligamentous neck injury. She attributed all of her need to household services to her syringomyelia and, to a lesser extent, to her hay fever. So too did Dr Chong Wah and so too did Ms Blakemore. Neither condition is an injury for which she is entitled to be paid compensation. Whether they are in the future will depend upon whether or not Ms Brackenreg makes a claim for compensation and whether or not Comcare is found to be liable.
For the reasons I have given, I affirm the reviewable decision of the respondent dated 30 November, 1999 in relation to home help assistance.
I certify that the fifty-four preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: (sgd. P. Paczkowski)........................
P. Paczkowski Associate
Date/s of Hearing Darwin: 31 May, 2000
Brisbane: 14 December, 2000,
12 June, 2001 and 25 July, 2001Melbourne: 18 October, 2002
Date of Decision 18 December, 2002
Counsel for the Applicant Mr Morris and Mr McIntyre
Solicitor for the Applicant Hunt & Hunt
Counsel for the Respondent Miss Ford
Solicitor for the Respondent Sparke Helmore
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