Brazel and Australian Postal Corporation

[2007] AATA 1264

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1264

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/811

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		TREVOR BRAZEL

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member
Dr M E C Thorpe, Member

Date30 April 2007

PlaceSydney

Decision The decision under review is affirmed.

…..................................

R Hunt

Presiding Member

CATCHWORDS

COMPENSATION – injury of “aggravation of previous disc protrusion at L5/S1 level” accepted as compensable – whether injury has caused permanent impairment –compensable proportion of impairment under Guide – non-economic loss

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27

Re Brereton & Australian Postal Corporation [2001] AATA 594
Comcare v Amorebieta (1996) 66 FCR 83
Comcare v Ticsay (1992) 38 FCR 181
Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR 626
Re Hardy & Comcare [1998] AATA 944
Re Hill & Comcare [1998] AATA 350
Re Kary and Comcare [1999] AATA 687
Re Martin and Australian Postal Corporation (1997) AAT No 12502
Martin v Australian Postal Corporation (1999) 29 AAR 420
Re McManus & Comcare [1998] AATA 837
Whittaker v Comcare (1998) 86 FCR 532
Re Williams and Australian Postal Corporation [1998] AATA 154
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42
Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34
Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34

REASONS FOR DECISION

summary

1.      Before the tribunal is an application by Mr Trevor Brazel for review of the decision of the respondent dated 18 May 2006. This reviewable decision affirmed the determination of a delegate of the respondent, dated 23 February 2006, that denied liability to pay compensation to Mr Brazel for permanent impairments of the spine and lower limb function. The permanent impairment claim arises from a back injury sustained at work on 22 July 1999 and subsequent aggravation at home, on 15 September 2004.

2. We have found no amount of compensation is payable under s24 of the SRC Act as Mr Brazel’s degree of impairment is less than 10%. This means Mr Brazel’s application for compensation for an injury resulting in permanent impairment of the spine and left lower limb function is fails. Our reasons are set out below.

Issue

3.      The only question before us is whether Mr Brazel has a permanent impairment to this spine and lower limb resulting from the 1999 and 2004 injuries and, if so, does this impairment amount to at least 10 percent under Tables 9.5 and 9.6 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment.

Background

4.      Mr Brazel worked as a postal delivery officer with Australia Post, the respondent. Mr Brazel’s history with this organisation is set out in the facts and contentions prepared by the respondent.

5. Liability was accepted by Australia Post under s14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of left posterior disc herniation at the L5/S1 level sustained on 22 July 1999 with payment of compensation under s19 and reasonable medical expenses. Mr Brazel also received compensation for soft tissue injury of the lower back in December 2002 following another back injury on 29 November 2002. Liability initially was denied for the 2004 injury but was accepted in 2005 as explained further below.

6.      Mr Brazel gave us the following description of how his injury occurred. On 22 July 1999, he arrived to clear a postal box at the corner of Newcastle and Albemarle Sts, Rose Bay. As he opened the door to step out of his vehicle, he felt a click in his lower back and a sharp pain from his back down to the lower leg. Elsewhere in the respondent’s documents before us, the exact time of onset of the leg pain was reported as that night, after he had been asleep. He developed worsening pain in the left buttock and leg with paraesthesia (pins and needles) on the lateral aspect of the left foot. Mr Brazel’s said it was as if there were a “knuckle” in his back.

7.      His general practitioner, Dr G. Valente, diagnosed a left posterior disc herniation, prescribed physiotherapy, and ordered a CT scan, which confirmed a herniation of the disc (T7, paragraph 13 and CT scan report at T6). Mr Brazel undertook a rehabilitation program and, with gradual improvement, resumed full time normal duties in January 2000. Surgery for the prolapsed disc had been contemplated but Mr Brazel sought a second opinion and surgery was not performed.

8.      Mr Brazel again injured his back when working at the airport on 29 November 2002. When bending down to take off small letter trays and place them on a conveyor belt, Mr Brazel told us he felt a sharp pain in his lower back occasioning time off work until his return to restricted duties on 9 January 2003 and full time duties on 28 January 2003. His then general practitioner, Dr John Wong, diagnosed a soft tissue injury in the lower back.

9. He again developed back pain on 15 September 2004. This occurred at home but the exact details are imprecise. Mr Brazel gave one account that he developed back pain while vacuuming and another account that it occurred shortly after rising from his bed. Following a brief return to work, he absented himself from employment. Australia Post originally denied his claim for compensation for this incident on the basis there was no connection between the claimed condition and the employment activities. However, in the course of earlier tribunal proceedings, on 5 July 2005, the parties reached an agreement. Liability was initially denied for the 2004 injury but, by agreement, as permitted under s42C (1)(a) of the Administrative Appeals Tribunal Act 1975 and approved by the tribunal in accordance with s42C (2) of the Act, Australia Post accepted that Mr Brazel sustained an injury under ss 4 and 14 of the SRC Act. The injury, according to the agreed terms, was deemed to have occurred on 15 September 2004. Australia Post accepted liability as follows:

(a) The applicant sustained an injury pursuant to ss 4 and 14 of the Safety Rehabilitation and Compensation Act, namely an aggravation of disc protrusion at L5/S1, for which liability was accepted for “aggravation of previous disc protrusion at L5/S1 level” deemed to have occurred on 15 September 2004.

(b) During the period 15 September 2004 up to and including 12 December 2004, the applicant required medical treatment as a result of the injury and was entitled to compensation under s16 of the Act for medical treatment expenses and any amount owing to the Health Insurance Commission, upon production of accounts or receipts.

(c) As at 21 June 2005, the injury ceased to result in a need for medical treatment and the applicant was not entitled to further compensation pursuant to s16 of the SRC Act.

10.     After the September 2004 incident, Mr Brazel described how he became depressed and withdrawn and told us he felt like a vegetable. Following advice received at an attempted work place assessment by Dr Manohar, he rang his brother and sought family help. Dr Wong then treated him for depression and prescribed Zoloft. He did not return to work for Australia Post after 29 October 2004 and resigned in May 2005.

11.     Subsequently, Mr Brazel commenced work as a delivery person with Scotts Tubes, delivering trays of herbs and seedlings. He told us this job involves delivering trays weighing 4-5 Kg in a 5 ton truck from the depot, to nurseries and the like in the metropolitan and adjacent areas. This work is in many respects similar to his previous job with Australia Post. We formed this view from Mr Brazel’s oral descriptions of both occupations, which involved lifting and loading a vehicle and unloading deliveries to recipients.

12.     Mr Brazel told us he has had no real problems with this job apart from the Australia Day weekend when he required a pain killer, Voltaren, for the pain in his back. Sometimes, when driving, he has to stop to stretch his back. Under cross-examination, Mr Brazel agreed that he did not tell Scotts Tubes of any past history of back problems, the reason being that he wanted the job and did not want to prejudice his chances. He has since advised them of his previous back problems and they are happy to retain his services. While it was put to us that this failure to disclose his injury to his employer demonstrated his dishonesty and unreliability as a witness, we are not convinced that Mr Brazel deliberately exaggerated his symptoms when giving evidence before us. We have relied on the medical evidence before us as well as Mr Brazel’s account.

13.     Mr Brazel rates his current back symptoms as the same as in 2005, that is, a constant pain in the back which he refers to as a “knuckle”. Mr Brazel further explained that this feeling is “normal” for him.  In evidence said he mows the lawn, taking one and a half hours. He can walk one kilometre but, if he walks for a longer distance, his back flares up.  He can drive for one to one and a half hours and can sit for two to three hours. He gets a cramp in the calf at least once a month when his calf muscles tighten up and he bends his foot backwards to relieve the pressure. The cramps occur mainly in bed at night but can also occur when taking off his shoe. The previous leg symptoms of pins and needles on the left side of the foot and the left side of the foot going numb no longer occur. He has not played ten pin bowls since 1999 and no indoor cricket since 2004. He now lives with his mother and is anxious that he may injure himself.

Medical Evidence

14.      Mr Brazel underwent a Commonwealth Medical Examination 23 January 1996 prior to commencing work with Australia Post. The examination record showed an entry, “No problems”, and an answer of “No” to question 39: “Back or neck injury, slipped disc or back or neck pain”.

15.      Following the incident at work on 22 July 1999, Dr Valente diagnosed left posterior disc herniation caused by turning around in a truck after lifting. A lumbar CT scan performed by Macarthur Diagnostic Imaging showed a left posterior disc herniation at L5/S1 level. Dr Valente referred Mr Brazel for physiotherapy and opinion from an orthopaedic specialist, Dr Giblin. Dr Giblin considered the clinical findings were in keeping with a disc herniation and, in view of the quite significant S1 weakness, recommended Mr Brazel have a laminectony. Mr Brazel sought a further opinion from Dr Bentivoglio, an orthopaedic surgeon, on 4 September and 13 October 1999. Dr Bentivoglio advised conservative treatment, not excluding the need for future surgery. Dr Glicksman, an occupational physician, also saw Mr Brazel, on 19 August 1999, to assess Mr Brazel. Dr Glicksman diagnosed sciatica and delayed any decision concerning management pending Dr Bentivoglio’s opinion.

16.      Mr Brazel’s symptoms continued to improve such that Mr Brazel gradually upgraded his hours and duties and, on 7 January 2000, resumed normal duties. He continued uninterrupted at work until 29 November 2002 when, after bending down to lift trays and placing them on a conveyor belt, he felt a pain in his lower back. His local doctor diagnosed a soft tissue injury to the lower back for which he prescribed physiotherapy. Mr Brazel again made a graduated return to work, resuming normal duties in February 2003.

17.      Following the further incident, not at work, on 16 September 2004, which occasioned lower back pain, Mr Brazel’s local practitioners provided descriptive diagnoses including lumbar back strain, lower back pain on a background of chronic back pain, and lumbar back strain.  A CT scan of the lumbosacral spine, on 27 October 2004, was performed by Dr Andrew Varnava at Macarthur Diagnostic Imaging. Dr Varnava compared the scan with the earlier 1999 scan and reported:

(i)       Minimal disc bulge at L3/L4 level

(ii)       Mild broad based disc bulge and right sided osteophyte causing mild narrowing of the right outlet foramen at L4/L5 level.

(iii)      Left posterior disc protrusion causing left S1 nerve root sheath superiorly at the L5/S1 level.

(iv)      Dr Varnava further noted that, in respect of the L4/L5 disc protrusion and the right L4/L5 outlet foramen, “the appearance has not significantly changed in either of these two levels since the study of July 1999”.

18.      At about this time, Mr Brazel developed acute depression resulting in isolation from friends and family and failure to attend the workplace. After consultation with Dr Manohar, a musculoskeletal medicine and rehabilitation specialist, on 10 December 2004, for a workplace assessment, Dr Manohar advised Mr Brazel to seek help from his brother and family, which advice Mr Brazel followed. Dr Wong subsequently prescribed Zoloft for the depression. Dr Maxwell in his report, on 26 May 2005, quite independently had reported “he states that he has suffered from depression over the last 5 years”. The depression is not part of Mr Brazel’s claim for permanent impairment.

19.       Dr Manohar did not see Mr Brazel again. Mr Brazel did not return to work with Australia Post, and resigned on 6 May 2005. He was examined by both Dr Ghabrial and Dr Maxwell at about the time of his retirement and we are dependent on these two orthopaedic specialists to assess the question of permanent impairment.

20.       Dr Ghabrial in his report dated 30 April 2005 had left open the question of surgery but in evidence said there was now no need for surgery, an opinion already shared by Dr Maxwell, and both of the orthopaedic specialists agreed the clinical findings now were unchanged from 2005, that is, any impairment could be considered as permanent.

21.       In addition to their reports, the tribunal had the benefit of concurrent evidence from the two orthopaedic specialists. Dr Ghabrial on 30 April 2005 had obtained a history of Mr Brazel’s developing pain in his lower back as a result of the injury on 22 July 1999, with radiation to the left leg. Examination showed a protected sitting and standing attitude. There was a normal gait and decreased postural lordosis. The spinal movements were moderately stiff with loss of about half normal range of movement. Dr Ghabriel found flexion from the fingertips to the mid calf region. Extension, lateral bending and rotation were decreased with discomfort. Straight leg raising was to 80 degrees on both sides with a negative sciatic stretch. There were no motor, sensory or reflex deficits.

22.      According to table 9.6, Dr Ghabriel assessed a 15% impairment of the L/S spine (loss of half normal range of movement) and, concerning limb function/lower lim, according to table 9.5, a 10% impairment. Dr Ghabriel noted, in his assessment report, Mr Brazel could rise to a standing position and walk BUT had difficulty with grades and steps.

23.      In concurrent evidence, Dr Ghabrial agreed his findings on physical examination had only minor differences to those elicited by Dr Maxwell. Dr Maxwell on initial consultation, on 26 May 2005, reported Mr Brazel as able to forward flex to touch the floor and, on subsequent consultation, on 9 February 2006, to mid calf, the same flexion as reported by Dr Ghabrial. Dr Maxwell described extension as full with no pain, lateral flexion to the right knee, thoraco-lumbar rotation to 80 degrees and straight leg raising to 80 degrees on the right and 70 degrees on the left (as compared with Dr Ghabrial, 80 degrees on the left). In addition, Dr Maxwell noted some fine fasciculation of the left calf (a subtle sign indicative of nerve root irritation) and also a positive sciatic stretch test, signs not reported by Dr Ghabrial. Both agreed the CT scan of 2004 was unchanged from the CT scan of 1999.

24.      Dr Maxwell considered Mr Brazel had minor restrictions of movement of the lumbo-sacral spine, equating to 5% impairment under table 9.6. He considered Mr Brazel could rise to the standing position and walk and had no difficulty with grades and steps, equating to zero impairment for limb function – lower limb, in accordance with table 9.5.

25.      Both specialists were unaware that Mr Brazel had returned to permanent part time work with Scotts Tubes for four and a half days a week delivering trays of herbs and seedlings to the metropolitan area and the surrounds, work similar to his previous work with Australia Post and work, which by his own account, he was performing without difficulty.

Consideration

26.      Mr Brazel has suffered an injury to the lumbo sacral spine for which liability has been accepted. We have two questions to address:

(i)   Has he a permanent impairment?

(ii)  if so, what is the percentage whole person impairment, according to the Comcare Guide.

27.      We are reliant on the opinions of the two orthopaedic specialists, Dr Ghabrial and Dr Maxwell to answer these questions. Dr Manohar’s consultation, while of considerable benefit to Mr Brazel, does not assist us as it focused on the psychological condition of the applicant at the time rather than a physical medical assessment for work purposes. The early assessments by Dr Giblin on 27 July 1999, five days after the injury, and Dr Bentivoglio’s opinions on 4 September 1999 and 13 October 1999, were to do with the acute event, the need for surgery, and were formed too early in the course of events to address the question of permanent impairment.

28.      In concurrent evidence, the two orthopaedic specialists were in agreement that their findings on physical examination were essentially the same. Similarly, they were in agreement with Dr Varnava that the appearances on CT scan in 2004 had not significantly changed since 1999. The area of disagreement was to do with the percentage whole person impairment according to Tables 9.6 and 9.5.  

29.      Interpretation of Table 9.6 and 9.5 is not without difficulty. Table 9.6 requires strict observation of the signs elicited in order to assess the restriction of the range of movement of the thoraco lumbar spine. Dr Maxwell’s findings concerning the lumbo-sacral spine were that all spinal movements were within normal limits except for spinal flexion. Dr Maxwell elicited that Mr Brazel was only able to reach to the mid calf on the second examination, although he had been able to reach his toes on initial examination. Dr Maxwell considered that to touch your toes on flexion demonstrated a full range of movement and, on the basis that Mr Brazel only reached mid shin on second examination, meant that Mr Brazel had a minor restriction of movement of his thoraco-lumbar spine, equating to 5% level of impairment

30.      Dr Ghabrial’s description of flexion to the mid calf is in agreement with Dr Maxwell’s but his description of a moderately stiff spine with about loss of ½ the range of movements was at variance, both with Dr Maxwell’s findings that all spinal movements were normal apart from flexion, and his own evidence, that his findings on examination were the same as Dr Maxwell’s. He described extension, lateral bending and rotation as decreased with discomfort but did not, and was unable, to quantify the extent of the decrease of range of movement of the thoraco lumbar spine on examination. This was at total variance with Dr Maxwell, who precisely recorded his findings of range of movement of the thoraco lumbar spine as normal and presented a table at page 3 of his report of 26 May 2005 (T69/161) with precise clinical measurements. In fact, Dr Maxwell’s table also reports 70 degrees straight leg raising on the left as opposed to 80 degrees on the right which he reported as slight sciatic irritation, a sign not elicited by Dr Ghabrial.

32.      Dr Ghabrial’s assessment of 15% level of impairment is in keeping with loss of half the normal; range of movement according to the table. Our difficulty is that Dr Ghabrial has issued a blanket statement without quantification or measurement of the different movements. This is an inferior assessment when measured against Dr Maxwell’s findings of minor restrictions of movement, quantified as forward flexion to mid shin on one occasion, with all other spinal movements normal. This difficulty is compounded by Dr Ghabrial’s own evidence that his findings of examination were similar to the findings by Dr Maxwell. Dr Ghabriel also referred us to the questionnaire that he had asked Mr Brazel to complete before the examination but we found insufficient information disclosed in this document to overcome the lack of discussion in the report.

33.      In this connection, we note the remarks of McColl JA (with which Giles and Tobias JJA agreed) in Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [127]. Acting Justice McColl noted that the Workers Compensation Commission, in that instance, when informing itself of any matter, should bear in mind that evidence should be logical and probative and that evidence based on speculation or unsubstantiated assumption was unacceptable. The tribunal has a similar task to the Commission in that we must inform ourselves. We would not be doing so by accepting as logical and probative an expert report that amounts to a bare statement or ‘ipse dixit’, as Acting Justice McColl described the medical opinion relied upon by the arbitrator in the Edmonds case. Her Honour added:

In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that “A court should not act upon an expert opinion the basis for which is not explained by the witness expressing it”. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:

“... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”

This statement is apposite in the context of the Commission hearings …. While it must be recognised that “there is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary” (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value….

In my view [a] statement that “in general all the problems are work-related” which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury … amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.

34.      We agree with the NSW Court of Appeal that it is desirable that expert reports, on which we are asked to base our decision, conform to standards of admissibility designed to ensure they have probative value. We had a similar difficulty with Dr Ghabriel’s assessment of the left lower limb function according to table 9.5. There was no question that Mr Brazel satisfied the requirement “can rise to a standing position;” the difficulty being grades and steps, a requirement that needs to be satisfied to qualify for a 10% level of impairment. There was no substantive difference between the specialists concerning the physical examination relating to the left lower limb, apart from Dr Maxwell eliciting fasciculation on the first occasion and slight reduction in straight leg raising, interpreted as Mr Brazil having some mild radicular signs but no radicular symptoms. Dr Ghabrial elicited no physical signs in the left lower limb on clinical examination and his assessment of 10% impairment was based on continuing symptoms in the lower limb.

35.      Table 9.5 is quite explicit, that to satisfy a 10% impairment requires “difficulty with grades and steps”.  Dr Maxwell reported he did not consider Mr Brazel had significant impairment of the lower limbs. He was told by the applicant he was able to walk up and down stairs and slopes without any problems. Mr Brazel was able to walk for 1 Km, climb and descend stairs and walk up slopes and therefore suffered a 0% WPI assessed in accordance with Table 9.5.  Dr Ghabrial’s assessment of limb function was based on continuing symptoms in the lower limb without reference to grades or steps. Dr Ghabrial provided his examination notes to the Tribunal in support of his assessment of 10% whole person impairment but the notes make no reference to the applicant’s ability to walk up and down stairs and slopes with or without problems. The presence of any symptoms and/or signs has to be balanced against the applicant’s own account, which was to Dr Maxwell, that he was able to walk up and down stairs and slopes without any problems. Mr Elliott for the respondent submitted Dr Ghabrial had elicited no evidence from the applicant concerning his ability with grades and steps and was attempting to obfuscate the issue. Dr Ghabriel told us he was unaware of Mr Brazel’s current occupation, which involves driving a truck and making deliveries.  Mr Brazel’s oral evidence did not lead us to conclude that he had difficulty with grades and steps. On the contrary, Mr Brazel gave evidence to the effect that he climbs up and down from a truck in the course of his work, delivering trays of plants. He told us he usually had no problems in his job apart from on one Australia Day weekend.

Findings

35.      We accept that Mr Brazel has a 5% permanent impairment of the thoraco lumbar spine according to Table 9.6 preferring Dr Maxwell’s findings as they relate to the Comcare Guide evidence and are, in part, collaborated by Dr Ghabrial’s agreeing that his findings on clinical examination were the same as Dr Maxwell’s. Table 9.6 is to do with range of movement and, having agreed that his clinical findings were essentially the same as Dr Maxwell’s, we are unable to accept Dr Ghabrial’s assessment of 15% level of impairment. Also we are unable to accept 10% impairment, as offered by Dr Ghabrial at the hearing, as we consider Dr Maxwell’s finding of minor restriction of movement more correct than loss of less than half normal range of movement.

36.      Concerning Table 9.5 Limb Function – Lower Limb, we prefer the opinion of Dr Maxwell, who was diligent in his assessment of the requirements of the table, namely addressing the question of difficulty with grades and steps. Dr Maxwell reported that Mr Brazel’s history given to him was that he did not have difficulty with grades or steps. Consequently, Dr Maxwell was able to make a 0% level of impairment assessment. Dr Ghabrial did not record and was unable to report any factual findings with regard to Mr Brazel’s ability with grades and steps. His assessment of 10% level of impairment according to the table 9.5 was based on his history of continuing symptoms on the lower limb, not part of table 9.5. Table 9.5 is quite explicit for 10% impairment namely “Can rise to the standing position and walk BUT has difficulty with grades and steps”. The table is not without difficulty but it is not open to the tribunal to place any interpretation on the percentage impairment unless it fits the description outlined. An assessment based on continuing symptoms alone must be disregarded in comparison to the test set out in the table. Further, there is no provision in the table for a 5% impairment.

37. Taking all the above considerations into account, on balance, we find Mr Brazil has a 5% level of impairment of the thoraco lumbar spine according to Table 9.6, and 0% impairment of the limb function – left lower limb, according to Table 9.5, giving a degree of permanent impairment of 5%, according to the Combined Values Table. An amount of compensation is not payable under s24 of the SRC Act when the degree of impairment is less than 10%. Mr Brazel’s application for compensation for an injury resulting in permanent impairment of the spine and left lower limb function is therefore unsuccessful.

Decision

38.      The decision under review is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R Hunt.  

Signed:   Talaishia Collis
   Associate

Date/s of Hearing  12 March 2007 and 13 March 2007    
Date of Decision  30 April 2007
Counsel for the Applicant         Mr B Batchelor  
Solicitor for the Applicant          Brazel Moore Lawyers
Counsel for the Respondent     Mr G M Elliott
Solicitor for the Respondent     Australian Government Solicitor