Centrelink v Dykstra

[2002] FCA 1442

FEDERAL COURT OF AUSTRALIA

Centrelink v Dykstra [2002] FCA 1442

FREEDOM OF INFORMATION – review of decision of Administrative Appeals Tribunal – exempt documents – whether Administrative Appeals Tribunal erred in finding release of documents would not endanger the life or physical safety of any person.

Administrative Appeals Tribunal Act 1975 (Cth), s 44
Freedom of Information Act 1982 (Cth), ss 37(1)(c), 11(1), 61(1)
Social Security Act 1991 (Cth)

Attorney-General’s Department v Cockroft (1986) 64 ALR 97 - discussed
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FCR 409 – referred to
Bushell v Repatriation Commission (1992) 175 CLR 408 – referred to
Staed v Minister for Immigration & Ethnic Affairs (1981) 37 ALR 620 – referred to
Australian Trade Commission v Underwood Exports Pty Ltd [1997] FCA 1060 – referred to
Sullivan v Department of Transport (1978) 20 ALR 323 – referred to
Waldron v Comcare Australia (1995) 37 ALD 471 – referred to
Repatriation Commission v Smith (1987) 15 FCR 327 – referred to
Nikolovski v Telstra Corporation Ltd [2002] FCA 846 – referred to

CENTRELINK v ROBERT DYKSTRA

S.203 of 2002

MANSFIELD J
28 NOVEMBER 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.203 OF 2002

BETWEEN:	CENTRELINK APPLICANT
AND:	ROBERT DYKSTRA RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	28 NOVEMBER 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is granted.

2.The decision of the Administrative Appeals Tribunal given on 2 August 2002 is set aside.

3.The application of the respondent to the Administrative Appeals Tribunal to review a decision of a review officer of the applicant made on or about 27 September 2000 is remitted to the Administrative Appeals Tribunal for rehearing or for further hearing in accordance with the reasons for decision given on 28 November 2002.

4.The operation of Order 3 is stayed until 19 December 2002.

5.The three documents the subject of the application by the respondent referred to in Order 3 not be released to the respondent pending the rehearing or further hearing of that application by the Administrative Appeals Tribunal.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.203 OF 2002

BETWEEN:	CENTRELINK APPLICANT
AND:	ROBERT DYKSTRA RESPONDENT

JUDGE:	MANSFIELD J
DATE:	28 NOVEMBER 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application by way of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The appeal is from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 2 August 2002. The Tribunal’s decision concerns s 37(1)(c) of the Freedom of Information Act 1982 (Cth) (the FOI Act). The Tribunal set aside a decision of a delegate of the respondent made on 29 August 2002 and substituted a decision that certain documents are not exempt pursuant to s 37(1)(c) of the FOI Act, so that the respondent may have access to them. The respondent was aware of, but did not appear at, the hearing. He submitted a letter dated 8 October 2002 to the Court. On 15 November 2002 the respondent submitted a second letter with attached documents. Neither letter contained any directly relevant submissions to the present application.

2. The respondent has for some years, at various times, received a disability support pension (DSP) pursuant to the Social Security Act 1991 (Cth). In June 2000, his DSP was apparently cancelled, but then reinstated after further assessment of his eligibility. The assessment of his eligibility included the applicant procuring a psychological assessment from Health Services Australia. The respondent was examined by a qualified psychologist, a Mr Sladden, on 28 June 2000. He provided a report concerning the respondent’s condition following that examination. On 24 July 2000, an officer of the applicant had a conversation with Mr Sladden concerning the respondent and made a note of the details of that conversation. Subsequently, following that conversation, on 27 July 2000 Mr Sladden wrote a further one page report to the applicant concerning the respondent. I will call the three documents referred to “the subject documents”. It is not necessary to distinguish between them.

3. On 6 July 2000 the respondent requested the applicant to provide access to all documents comprised in his DSP file.  On 29 August 2000, an officer of the respondent determined to accede to that request, except in respect of the subject documents.  The remainder of the documents on the respondent’s DSP file were provided to him.  The subject documents relate to the psychological assessment of the respondent’s condition made by Mr Sladden, upon the basis of which his eligibility for DSP was reconsidered and accepted, and DSP payments were resumed.  The officer making that decision explained the reasons for withholding access to the subject documents in the following terms:

   “I have decided not to release these three document direct to you. I have made this decision under subsection 41(3) of the Freedom of Information Act. Subsection 41(3) states that a medical document may be exempted from release to the applicant where the disclosure of the information to the applicant might be detrimental to the applicant’s physical or mental health, or well-being. I have relied upon the advice of the Health Service Australia Psychologist in coming to this decision.

   Section 41(3) allows me to release medical documents to a doctor or qualified person.  However I have decided under Section 37(1)(c) not to release the documents M4, M10 and M11 to a suitably qualified person.  I have relied on the advice of the Psychologist in reaching my decision.

   Section 37(1)(c) states that a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to endanger the life or physical safety of any person.”

4. The respondent on 13 September 2000 requested a review of that decision pursuant to s 54 of the FOI Act. That review was undertaken. Sometime later, apparently about the end of September 2000, the review officer decided to adhere to the decision not to provide access to the subject documents. The decision, I find, was made on or about 27 September 2000. It was notified to the applicant, by his then solicitors, by letter received by those solicitors on that date. It was in the following terms, relevantly:

   “My decision is that those documents should not be released because they are exempt under paragraph 37(1)(c) of the FOI Act.

   The facts on which I have based my decision are:

   1.The documents are all related to a medical assessment conducted by Health Services Australia on behalf of Centrelink.

   2.The documents contain statements about the medical condition of Mr Dykstra and the assessment was conducted by a qualified medical practitioner.

   3.The Senior Clinical Psychologist (Dr Sladden) who examined Mr Dykstra has requested that the assessment report not be provided to him because of the potential for Mr Dykstra to react violently.

   4.He also recommended that the report not be released to a doctor nominated by Mr Dykstra because of the potential for him to project his anger toward that doctor.

   5.Mr Dykstra has written to Health Services Australia and made statements which suggest that he would act violently.

   I have considered these facts together with paragraph 37(1)(c) of the FOI Act.
   …
   I have therefore sought additional evidence and clarification from Health Services Australia.  They have supplied me with a copy of a letter from Mr Dykstra received by them on 21 July, which states in part;

   ‘White boy don’t ever deliberately stand in front of me and have me no (sic) it is you who is there you filthy little inbred.’

   Mr Dykstra also refers in extremely derogatory and aggressive terms to the examining principal clinical psychologist as ‘magot (sic) Sladden’.

   I have also discussed Mr Dykstra’s demeanour with Mr Andy Gates, Business Manager Health Services Australia.  Mr Gates interviewed Mr Dykstra on 21 July, the same day he hand delivered the letter referred to above.  Mr Gates advised that Mr Dykstra refused to sit down during the interview and stood next to his desk looking down at him in a very uncomfortable and threatening manner.  Mr Dykstra commenced the interview by stating he wanted to know what he (Mr Gates) looked like, making a very clear implied threat that he might want to find him and take some further physical action against him.  Mr Gates is quite adamant that he felt threatened by Mr Dykstra’s actions and language.

   Dr Sladden, on the other hand, is a qualified psychologist and has a great deal of experience in handling Centrelink customers.  After his interview/examination he concluded that Mr Dykstra has a very negative attitude toward authority.  He expressed the same concerns as Mr Gates at the time of his interview with Mr Dykstra which was obviously prior to 21 July.

   It is clear that Mr Gates and Dr Sladden, who have both experienced the physical presence of Mr Dykstra, have expressed genuine fears for their safety.  I consider that the threat and implied threat contained in his letter of 21 July is sufficient to reasonably determine that their physical safety may be at risk.

   I have therefore decided that the documents containing the detail of the medical assessment are exempt from disclosure under paragraph 37(1)(c) of the FOI Act.

   The original letter of decision by Ms Thomas also refers to a possibility of release of the information direct to a doctor or other qualified person under subsection 41(3) of the FOI Act. As stated previously, the advice of the Senior Clinical Psychologist is that it is possible for Mr Dykstra to project his anger toward that third party, therefore I can only decide that release under this provision is also inappropriate.”

5. The respondent appealed from that decision to the Tribunal by notice dated 1 November 2000. It referred to the decision as having been made on 13 September 2000 (the date of the applicant’s request for review of the delegate’s decision), and noted there was no date on the letter providing the notification of the decision, although it attached the letter containing the decision referred to in [4].

   THE LEGISLATION

6. Section 11(1) of the FOI Act provides that:

   “Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

   (a)a document of an agency, other than an exempt document, or

   (b)an official document of a Minister, other than an exempt document.”

7. The introductory words to s 11(1) of the FOI Act, that the right of access for which it provides is “subject to this Act” can be seen to be qualified in a number of ways by other provisions of the FOI Act: see e.g. ss 12, 13, 24, 24A, and ss 32-47A in Part IV of the Act. Before the Tribunal, and on this application, the applicant has sought to uphold the decision only by reference to s 37(1)(c) of the FOI Act. It relevantly provides:

   “A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

   (a)…

   (b)…

   (c)endanger the life or physical safety of any person.”

   THE TRIBUNAL’S DECISION

8. As noted, in this matter the applicant seeks to justify the exemption of the subject documents only upon the ground specified in s 37(1)(c) of the Act. The onus lay upon the applicant to show that the decision to withhold access to the subject documents was justified: s 61(1) of the FOI Act.

9. The Tribunal, after noting the legislative context in which the decision was to be made, and after referring to the decision of the Full Court in Attorney-General’s Department v Cockroft (1986) 64 ALR 97 (Bowen CJ, Sheppard and Beaumont JJ), referred to the evidence at some length, including noting that the respondent communicates often inappropriately and offensively, using insulting and abusive language in his criticism of others and by making derogatory criticisms relating to what he perceives to be their background and heritage. So much was apparent from the lengthy letter which the respondent submitted to the Tribunal in support of his application. It was quoted at length by the Tribunal. The Tribunal treated the respondent’s language and behaviour, “which at best can be described as intemperate and inappropriate” as a consequence of his mental health. It had regard to his language and behaviour in assessing any danger that may be caused to others by him being granted access to documents under the FOI Act. The Tribunal described the respondent’s behaviour through his correspondence and at directions hearings in the following way:

   “He exhibits a pre-occupation with Mr Sladden and Mr Gates.  Mr Dykstra exhibits a very high level of frustration not only with them but with all authority figures.  He warns them not to stand in front of him deliberately for, if they did, he would have to feel threatened or intimidated.  In a later part of the letter, he questions how their standing in front of him could be seen as his threatening them.  Mr Dykstra contemplates what would happen were he to hit Mr Sladden.  He states that he could do that any number of times.  For all that, it does not seem to me to be a threat to actually hit Mr Sladden.  He is considering on paper the consequences of such an action and how those consequences would achieve his wider purposes.

   Despite the high level of frustration that Mr Dykstra has shown both in his correspondence with the Tribunal and in his oral communications whether at directions hearings or otherwise, he has never attempted to cause any person any physical harm.  He has never made a move towards Mr Underwood or towards any member or staff member of the Tribunal.  On one occasion, he punched a pillar in the Tribunal and damaged it but at no time has he attempted to harm a person while on Tribunal premises.”

   It noted the evidence that the respondent has appeared in Court on some 18 occasions between 1970 and 1993, and has a number of convictions including four assault convictions between 1977 and 1993.  There was no evidence of the circumstances in which those offences occurred, or whether the respondent was receiving any form of treatment at the time he committed them.  The Tribunal noted there was no suggestion of the respondent having been convicted of any offences since 1993.

10. The Tribunal also had regard to the material in the subject documents.  It described them in the following way:

    “I must observe that they are now two years old and are based on events at that time.  In so far as Mr Sladden is exercising his professional judgment, I have not had the advantage of hearing what his opinion would be in light of Mr Dykstra’s behaviour since those events.  In particular, I have not had the advantage of hearing what he would think of Mr Dykstra’s not making any threatening move at all in the past two years despite his frustration at not having access to the documents and his firmly held beliefs that certain people have done the wrong thing by him.

    In the absence of evidence, what Mr Dykstra’s future actions may be if given access to the three documents remains in the realm of speculation.  Mr Underwood submitted that access to the documents could trigger a response in Mr Dykstra that would lead to his endangering the life or physical safety of another person.  There is indirect evidence but, as I said, it is not up to date and does not take into account Mr Dykstra’s behaviour over the past two years.”

11. The Tribunal’s views leading to the conclusion that the subject documents were not exempt under s 37(1)(c) of the FOI Act are encapsulated in the following passage towards the conclusion of its reasons:

    “Having regard to Mr Dykstra’s penchant for abusive language, the context in which it is used, the concerns of officers of Centrelink and of HSA and particularly his lack of any physical action to carry out any threat that may appear in his written correspondence (and it is difficult to know whether there is any such threat) or oral statements and his not having done so despite his being frustrated by being refused access and his being deeply unhappy with those he perceives as being in positions of authority, I have concluded that the disclosure of documents would not, or could not reasonably be expected to, endanger the life or physical safety of any person.  Furthermore, there is nothing to indicate that Mr Dykstra could harm himself were he to be given access to the documents.  He is aware of at least one diagnosis made in Western Australia regarding his mental health and has made reference to it in the letter accompanying his application for review.  Although he is clearly unhappy with mental health authorities in Western Australia and their treatment of him, his understanding of that treatment, whether right or wrong in objective terms, has not led him to harm himself.”

12. The Tribunal ordered that the decision dated 29 August 2000 be set aside, and that the respondent may have access to the subject documents.

    CONSIDERATION

13. The application by way of appeal is restricted to matters of law: s 44(1) of the Administrative Appeals Tribunal Act.

14. It was claimed that the Tribunal erred in failing to have regard to the material evidence referred to in the decision of the review officer given apparently on 27 September 2000.  The evidence is that referred to in that letter and set out in [4] above.

15. In my judgment, that ground of appeal is made out.  The Tribunal said it was reviewing a decision made on 29 August 2000.  It set aside a decision made on 29 August 2000.  That was the decision initially made by the delegate of the applicant.  It was not the decision which the respondent sought to have reviewed, namely the decision of the review officer made on or about 27 September 2000, as indicated in [5] above.  The review officer’s decision was to the same effect, but it was based on more extensive material than the initial decision of 29 August 2000.  The misapprehension of the Tribunal as to the decision under review in this instance has led the Tribunal to fail to consider that more extensive material.

16. The Tribunal identified the evidence in the case as being its impression of the respondent from his attendances at preliminary hearings before the Tribunal (he did not attend the hearing before the Tribunal) and the detailed letter which the respondent submitted to the Tribunal.  Those communications indicated to the Tribunal that the respondent “exhibits a pre-occupation with Mr Sladden and Mr Gates” and a high level of frustration with them.  Mr Gates is an officer of Health Services Australia.  Despite the respondent’s letter contemplating what would happen were he to hit Mr Sladden, the Tribunal regarded that not as a threat to hit Mr Sladden but the respondent “considering on paper the consequences of such an action”.  Despite his unsatisfactory language and behaviour, the Tribunal noted that the respondent had not at the Tribunal made any attempt to harm any person although he had on one occasion punched a pillar.

17. The further evidence the Tribunal referred to was the information about the respondent’s earlier convictions for assault (the last of which was in 1993) and the contents of the subject documents.  The Tribunal noted the views in the subject documents were provided some two years before its decision, and no current information was provided as to whether those views were still held with the passage of time.  Thus the future actions of the respondent if given access to the subject documents “remains in the realms of speculation”.

18. The Tribunal, apparently by misapprehending the decision under review, did not refer at all to the information contained in the review officer’s decision as conveyed in his letter of about 27 September 2000.  The review officer had additional information obtained from Mr Gates about communications with the respondent when the respondent handed to Health Services Australia a letter dated 21 July 2000.  The passage in the respondent’s letter of 21 July 2000 to Health Services Australia to which the applicant particularly refers appears to be in the following terms:

    “White boy don’t ever deliberately stand in front of me (indecipherable) me (indecipherable) it is you who was there you filthy little inbred.”

1. In my judgment, in the circumstances, the Tribunal has committed an error of law.  It is of course not the role of the Tribunal to review the reasons for decision of the decision maker, but the decision itself:  Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FCR 409. However, the application to the Tribunal identified the decision it was to review, and its reasons indicate that it failed to do so. The undated notice of decision of the review officer of about 27 September 2000 comprised part of the material before the Tribunal in accordance with s 37(1) of the AAT Act. In the light of that material, its task was to determine the correct or preferable decision: Drake at 419 per Bowen CJ and Deane J, Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.

2. In this matter, I think the omission of the Tribunal to refer to the evidence upon which the review officer largely based his decision cannot be taken to indicate the Tribunal considered, but did not need to refer to, that material:  cp Staed v Minister for Immigration & Ethnic Affairs (1981) 37 ALR 620. Nor do I consider the applicant’s contention invites the Court to become involved in assessing the quality of the fact finding of the Tribunal: cp Australian Trade Commission v Underwood Exports Pty Ltd [1997] FCA 1060. The failure of the Tribunal to identify correctly the decision under review, and to refer to the material identified in the reasons for decision upon which it was largely based leads me to the view that the Tribunal did not in fact address that material. That information was, I consider, material in the sense explained by Fisher J in Sullivan v Department of Transport (1978) 20 ALR 323 or 350-352. See also the observations of Burchett J in Waldron v Comcare Australia (1995) 37 ALD 471 at 477.

3. Such an error of law on the part of the Tribunal does not mean that its decision was necessarily wrong and should be set aside:  Repatriation Commission v Smith (1987) 15 FCR 327 at 335. But I think this case is one where the error of law in failing to have regard to material evidence may have resulted in the Tribunal’s decision being a different one. It is clear that the Tribunal, on the basis of the material it addressed, did not consider the outcome clear cut. It said as much. It acknowledged there was cogent material which could have led it to the level of satisfaction about the subject documents in terms of s 37(1)(c) of the FOI Act which the applicant urged.

4. I am satisfied, from perusing the subject documents that the review officer’s description of the views of Mr Sladden and of Mr Gates as set out in that letter are accurate and contemporaneous.  Both Mr Gates and Mr Sladden held genuine fears for their safety on the basis of their communications with the respondent in June and July 2000 if the subject documents were made available to the respondent.  The Tribunal acknowledged that.  There was no information before the Tribunal as to any change in the respondent’s underlying psychological condition.  Its consideration of the passage of time between the decision under review and the date of its decision, and the absence of any threat in that period of time must be weighed (as I am sure it was weighed by the Tribunal) in the context that the absence of any threat by the respondent in that time might be a consequence of the withholding of the subject documents from his inspection.  The material information which the Tribunal failed to consider might have tilted the balance in favour of a different result.

5. The second ground of appeal is that the Tribunal, although correctly directing itself as to the way in which s 37(1)(c) of the FOI Act was to be applied as explained in Cockroft, did not then in fact apply that test but applied a more stringent test in determining whether the onus upon the applicant imposed by s 61 of the FOI Act was met. After referring to Cockroft, the Tribunal quoted with apparent approval a passage from the Freedom of Information Handbook prepared by the Attorney-General’s Department (the Handbook) regarding s 37(1)(c) in the following terms:

   “In considering any of the elements of s 37, the decision maker must look at the likelihood of the particular harm or prejudice which could occur if the document was to be released.  Exemption under s 37 can be only claimed where there is a real expectation of harm or prejudice.  There must be realistic grounds for the expectation based on available evidence.  Section 37 exemptions are not subject to the ‘public interest’ test …  Decision makers should adopt a conservative approach in deciding whether to release documents which could prejudice the physical safety or a person and should not hesitate to apply this exemption if there is real evidence of potential danger (see paragraph 6.4.2).”

6. It is contended that the Tribunal somehow misapplied the law by determining whether the exemption under s 37 could be claimed “only … where there is a real expectation of harm or prejudice”, a passage extracted from that section of the Handbook, rather than applying the words of s 37. I do not accept that the Tribunal fell into that error. It described the Handbook as providing “useful guidance”. It then indicated that the question to be asked is whether the disclosure of the subject documents or any of them would or could reasonably be expected to endanger the life or physical safety of any person. That is an appropriate expression of the question posed by s 37(1)(c). It is clear that Cockroft rejected the proposition that the test or hurdle imposed by s 37(1)(c) involves any test of what might occur on the balance of probabilities. See per Sheppard J at 112. Bowen CJ and Beaumont J said that the words:

   “… require a judgment to be made as to whether it is reasonable as distinct from something that is irrational, absurd or ridiculous, to expect that … there could be a risk of harm to the life or physical safety of another person.”

   As their Honours said at 106, it is undesirable to attempt a paraphrase of those words.

7. It was plain to the Tribunal, and the Tribunal apparently accepted, that both Mr Gates and Mr Sladden did fear for their physical safety if the documents were disclosed to the respondent.  But it was not their personal or subjective belief which was determinative.  The Tribunal had to determine whether the documents had the character that their release would, or could reasonably be expected to, endanger the life or physical safety of any person.  I do not discern from the Tribunal’s reasons that it misdirected itself in considering that question.  It set out to judge objectively whether there was a possibility that the disclosure of the documents could endanger the life or physical safety of other persons, and if so whether that possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous.  It is not for the Court to substitute its view of the outcome of such consideration.  The Tribunal gave its reasons for concluding that the fear to which the applicant referred and based on the material to which it referred, was not a reasonable one.  As I have said, particularly bearing in mind the material available to the Tribunal, there was material upon which the Tribunal could reasonably have reached an alternate conclusion.  I have however found that it failed to have regard to all the material to which it was required to have regard.

8. The third argument was that the Tribunal erred in some way by in fact imposing a measure of testing the likelihood of an outcome to determine whether the expectation of that outcome was relevant. I do not think the Tribunal erred in that way. The point of the applicant’s contention is, however, quite correct. Section 37(1)(c) focuses upon the character of the documents, in all the circumstances of the case, to determine whether there is a realistic and material possibility of the harm contemplated by the section occurring. In my view the Tribunal applied that test.

9. For the reasons given, I think the Tribunal’s decision should be set aside. It is not for the Court to substitute its view as to the appropriate decision to be made under s 37(1)(c) of the FOI Act. I have concluded that the Tribunal did not address the material which it was required to address because it wrongly identified the decision under review, and so did not address some of the material evidence. In the circumstances I think it is appropriate that the matter be remitted to the Tribunal for further consideration. In this instance I see no reason why the Tribunal as constituted at the time of the review should not continue to entertain the application. It would be up to the Tribunal whether it permits the reception of further evidence. However, I stay the execution of the order remitting the matter to the Tribunal for 21 days to give the parties the opportunity to be heard on whether the matter should not be remitted to the Tribunal as constituted for the hearing of the review leading to the decision on 2 August 2002. I note that Moore J in Nikolovski v Telstra Corporation Ltd [2002] FCA 846 at [20] has recently considered the authorities discussing that question. The parties are given leave to make any submissions on that matter in writing within 10 days. If that opportunity is not taken up, the matter will be remitted to the Tribunal for rehearing or further hearing and it will be for the Tribunal to determine whether that task is undertaken by the Tribunal as constituted for the decision on 2 August 2002. If it is taken up, I will decide the question upon the basis of any written submissions.

10. To avoid any uncertainty, I also order that the subject documents not be released to the respondent pending the determination by the Administrative Appeals Tribunal of its rehearing or further hearing.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             22 November 2002

Counsel for the Applicant:	Mr S Stretton
Solicitor for the Applicant:	Sparke Helmore
Counsel for the Respondent:	No appearance
Date of Hearing:	29 October 2002
Date of Judgment:	28 November 2002