Christine Wood and Comcare
[2013] AATA 469
[2013] AATA 469
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/3524 & 2013/1294
Re
Christine Wood
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Presiding Member
Dr B. Hughson, MemberDate 5 July 2013 Place Canberra Comcare is ordered to pay Ms Wood’s reasonable party and party costs in these proceedings in accordance with clause 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction dated March 2007, as agreed or taxed, including –
(a)witness expenses at the prescribed rate;
(b)all reasonable and proper disbursements; and
(c)professional costs allowable in accordance with any scale of costs determined by the Tribunal, or, if there is no such scale, 75 percent of all professional costs, including counsel's fees, which would be allowable under the Federal Court scale.
.............................[sgd]...........................................
Mr S. Webb, Presiding Member
WORKERS COMPENSATION – orders for costs – request for 100 percent of costs – nature of decisions under review – conduct of parties – compliance with legislative requirements and guidelines – reasonable expectation that Comcare would adhere to binding guidelines it promulgates – whether applicant put to unnecessary costs – costs award
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 37, 60, 62, 67
Comcare v Meng Chang [1996] FCA 927.
Corporation of Burford v Lenthall (1743) 26 ER 731.
Department of Defence v Fox [1997] FCA 3.
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
Dungey v Angove (1794) 2 Ves. Jr. 304.
Griffiths v Australian Postal Corporation [2008] FCA 19.
Re Maley and Comcare [1998] AATA 543.
McGuinness v Comcare [2007] FMCA 1486.
Oshlack v Richmond River Council (1998) 193 CLR 72.
Pascoe v Australian Postal Corporation [2004] FCAFC 4.
Perry v Comcare (2006) 150 FCR 319.
Riley v Comcare (1994) 48 FCR 449.Administrative Appeals Tribunal Guide to the Workers’ Compensation Jurisdiction dated March 2007
REASONS FOR DECISION
Mr S. Webb, Presiding Member
Dr B. Hughson, Member5 July 2013
Christine Wood was injured in her employment by the Department of Defence. She obtained compensation. She was assessed as capable of undertaking a rehabilitation program. In its role as a rehabilitation authority, Defence determined that she should undertake a rehabilitation program and, later, determined to suspend her compensation on the basis that she failed to do so. These two determinations were reconsidered by Comcare. Unhappy with Comcare’s decisions, Ms Wood made two applications for review by the Tribunal.
The applications came on for hearing and both were resolved in a manner that is favourable to Ms Wood – following legal argument at the outset of the hearing, Comcare conceded and both reconsideration decisions were set aside by consent. In the result, Comcare accepted that the 20 June 2012 determination under s 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) that she should undertake a rehabilitation program, as affirmed on reconsideration under s 62, was not sustainable. No rehabilitation program had been formulated, at least in draft, at the time and, as the matters set out in s 37(3) refer to “the program”, the requirement to have sufficient or adequate regard to those matters could not be satisfied. That being so, the suspension issue fell away.
Those matters having been decided, a dispute as to appropriate orders for costs has arisen. Ms Wood says that the actions taken by the rehabilitation authority – the Department of Defence – and by Comcare in respect of the two rehabilitation decisions under s 37 are so manifestly untenable and unreasonable that they should not have been made. And consequently, in taking action to challenge the decisions, she was put to costs unnecessarily. Without an order for Comcare to pay 100 percent of her costs, she will be left the poorer, carrying the cost of remedying errors that should not have occurred. This, she says, would be abjectly unfair.
Comcare says that Ms Wood should not be awarded all of her costs of these proceedings. In Comcare’s submission it was not squarely put on notice that the existence of a rehabilitation plan was in issue. On the contrary, Comcare asserts that Mr Andrew Finlay, solicitor of record for Ms Wood, expressly agreed with Comcare’s written position on this point that a rehabilitation program had been determined under s 37(1), namely “a case conference … to develop a Return to Work plan under S37 of the SRC Act”. Accordingly, so the argument goes, Comcare proceeded to prepare its case on the understanding that there was no dispute about determination of the rehabilitation program under s 37(1), or its content – the dispute being sharply focussed on Ms Wood’s fitness to undertake the program and the appropriateness of the program in the circumstances. In this regard, Comcare points to the Applicant’s Consolidated Statement of Issues and the Applicant’s Amended Consolidated Statement of Contentions, both signed by Mr Finlay on 20 May 2013.
Comcare says that, only one day before the listed hearing, it first became aware that issues relating to the determination of the purported rehabilitation program would be agitated. It was taken by surprise and now says that issues of procedural fairness arise. In these circumstances, Comcare asserts that it was denied an adequate opportunity to properly assess this aspect of the case and to potentially avoid costs. For this reason, Comcare pressed us to confine any orders to only part of Ms Wood’s costs.
These matters are to be determined under s 67 of the Act, which is a code in relation to costs[1] in cases of the present kind. The primary rule in s 67(1) is that each party bears their own costs[2]. Subsections 67(2) to (12) set out exceptions to the rule. In proceedings brought by a claimant, such as Ms Wood, the discretion conferred by s 67(8) to order a responsible authority, presently Comcare, to pay all or part of a claimant’s costs in proceedings, is essentially preconditioned by the Tribunal making a decision that is more favourable to her than the decision under review. This being established, we must decide whether it is appropriate to exercise the discretion in the particular circumstances.
[1] Griffiths v Australian Postal Corporation [2008] FCA 19 at [2]-[4]; Perry v Comcare (2006) 150 FCR 319 at 338-339; Riley v Comcare (1994) 48 FCR 449 at 451.
[2] Perry v Comcare (2006) 150 FCR 319 at 338.
It is germane to briefly set out some principles that guide our considerations on this point. When exercising the discretion, the Tribunal must proceed with “judicial detachment and fairness”[3]. As Ms Wood has obtained two favourable decisions, one might expect the usual costs orders to follow, and ordinarily that would be so. But the discretion conferred by s 67(8) operates within the statutory context of the Act – it is not to be exercised “so as to frustrate the legislative intent”[4]. The award of costs is not punishment for the losing party, but it is a function of justice in the particular circumstances – “to do that which appertains to justice, and that which appertains to example, and to vindicate the honour and justice of the Court”[5], “as to the satisfaction on one side or the other, on account of vexation”[6]. Bearing in mind that the Tribunal is not a court, nonetheless, this old conception of awarding costs in the service of justice has enduring currency. The service of justice in the present circumstances requires consideration of the manner in which the application arose and was conducted by the parties, including any improper, unnecessary or unreasonable costs that were incurred by either party. It may also be appropriate to consider any public interest or other factors that are relevant in the particular case.
[3] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 65.
[4] Oshlack v Richmond River Council (1998) 193 CLR 72, per Gaudron and Gummow JJ at 81.
[5] Dungey v Angove (1794) 2 Ves. Jr. 304 at 313, per Lord Loughborough.
[6] Corporation of Burford v Lenthall (1743) 26 ER 731 at 732, per Lord Hardwicke.
Comcare’s argument concerning surprise is not made out. Comcare was legally represented by an in-house solicitor, Mr Andrew Schofield. In the Respondent’s Statement of Facts, Issues and Contentions, signed by Mr Schofield on 4 February 2013, the following contention appears –
3.4 In determining that the Applicant should undertake a rehabilitation program, the determination dated 20 June 2012 and the reviewable decision dated 14 August 2012 had proper regard to the factors listed in section 37(3) of the SRC Act.
The formulation of this contention in the particular circumstances of this case requires consideration of the proper construction and application of the legislation.
Issues of this kind, relating to the proper construction of the legislation and the nature and content of the 20 June 2012 determination at T64, were raised by the Tribunal in interlocutory hearings on 27 March, 16 April and 6 June 2013. While the particular points of fact and law agitated at hearing may not have been articulated with great precision in the earlier interlocutory processes, the nature and content of those processes and the resulting orders should have been sufficient to place Comcare on notice that the construction and application of the legislation was a live issue in the proceedings, at least insofar as the Tribunal was concerned.
On 3 April Mr Schofield informed the Tribunal that –
It is the Respondent’s view that the decisions under review in the proceedings before the Tribunal are decisions properly made under section 37 of the SRC Act, and not section 36.
Section 37(2) indicates that it is not necessary for the specifics of a rehabilitation program to be identified before a determination can be made, under section 37(1), that an employee should undertake a rehabilitation program. Although the determination of 20 June 2012 (T64 of 2012/3524) required the Applicant to undergo further ‘assessment’, that assessment was to be conducted by a rehabilitation provider with a view to providing a specific rehabilitation program (under section 37(2)(b)).
We therefore see no potential jurisdictional problem, and propose continuing without amendment to the decisions under review.
As can be seen, it is quite clear that Comcare was alive to issues concerning the correct construction of the legislation – it had formed an opinion to which it intended to adhere in the proceedings.
The proposition that Comcare’s surprise arose following Mr Finlay’s concession does not advance the matter. Even if Mr Finlay subsequently agreed with Comcare’s position in respect of the legislative basis of the determination, and it appears that he did, the Tribunal would not be bound by any such agreement. That much was made clear in the interlocutory hearing on 6 June 2013. As a matter of law, the Tribunal would need to satisfy itself about the particular facts and the correct construction of the legislation, having regard to relevant Federal Court judgements by which it is bound.
If Mr Finlay failed or omitted to raise an issue concerning the construction or correct application of the legislation in respect of the s 37(1) determination, it does not excuse Comcare (or the Tribunal) from properly informing itself about the construction and application of the legislative provisions under which subject determinations were made. That is consistent with Comcare’s functions and obligations under s 69 and 72 of the Act when determining claims for compensation. Furthermore, in the conduct of proceedings such as this before the Tribunal, under s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (Cth) Comcare is obliged to use its best endeavours to assist the Tribunal to make its decision.
Comcare correctly notes that the Applicant’s Consolidated Statement of Issues and the Applicant’s Amended Consolidated Statement of Contentions Mr Finlay signed on 20 May 2013 do not specify the particular issues agitated at the outset of the hearing. The Tribunal is not a court, however, and those documents are not binding, in the sense of formal pleadings. Nonetheless, the primary purpose of documents of this kind is for each party to clarify and inform the other parties, and the Tribunal, of the issues arising in an application that are in dispute, and the conclusions the Tribunal should draw when the particular facts are considered[7]. These are matters to which we will return.
[7] See clauses 2.2 and 2.5, and Attachments A and B of the Administrative Appeals Tribunal Guide to the Workers’ Compensation Jurisdiction dated March 2007.
As to Comcare’s submissions concerning denial of procedural fairness, if there was any substance to support the submission, such that Comcare required additional time to properly prepare and present its case, time may have been allowed and issues relating to additional costs incurred may have arisen. But that is not what occurred in this case.
When related issues were agitated at the outset of the hearing, following argument and the preliminary views of the Tribunal about the proper construction of s 37, Comcare conceded both applications. We note that our views about the proper construction of the legislation, which are in no way novel, arise from the text itself, consistent with the authoritative cases in which these same provisions have been considered[8].
[8] McGuinness v Comcare [2007] FMCA 1486 at [80]-[81]; Department of Defence v Fox [1997] FCA 3 at pages 6-7; Comcare v Meng Chang [1996] FCA 927 at page 6; Pascoe v Australian Postal Corporation [2004] FCAFC 4 at [14].
Perhaps most difficult for Comcare is the high correlation between the points we have made about the construction of the legislation, the authoritative cases, and policy documents issued by Comcare in 2012. These include the Guidelines for Rehabilitation Authorities 2012 made under s 41 of the Act (the Rehabilitation Guidelines); Improving Outcomes Through Rehabilitation Management Systems: A Continuous Improvement Guide (the Continuous Improvement Guide), to which we were taken; and the Rehabilitation Handbook – Understanding Rehabilitation and Return to Work under the Safety, Rehabilitation and Compensation Act 1988, which is a public document for general information, cast in similar terms. Comcare’s opinion, communicated by Mr Schofield on 3 April 2013, appears to depart from its published policies and the binding Rehabilitation Guidelines that were in force at the time. Whether this was a deliberate move away from established policy and the law as expressed by McInnis FM in McGuinness v Comcare[9] is not clear.
[9] [2007] FMCA 1486.
In sum, we are not persuaded by Comcare’s submissions in respect of Ms Wood’s costs of these proceedings. We see no good reason to confine an order for costs to only part of the costs that Ms Wood could reasonably expect to obtain in the usual course.
Ms Wood wants us to award 100 percent of her costs, departing from the usual course set out in clause 6.8 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction dated March 2007 (the Tribunal’s Guide), whereby she would be entitled to recover 75 percent of her professional costs allowable under the Federal Court scale.
Her submissions have some force. The Department of Defence, the rehabilitation authority in her case, is required under s 41 of the Act to comply with the Rehabilitation Guidelines issued by Comcare. Moreover, when Comcare exercises the power conferred upon it by s 38(4) to review a determination under s 37, effectively stepping into the shoes of the original decision maker, it, too, must comply with those Guidelines. Furthermore, it is reasonable to expect that Comcare will comply with the policies it has published to assist other entities in the performance of similar functions.
If Comcare is asserting that it was not conversant or aware of the requirement for a rehabilitation program to exist before a determination can properly be made under s 37(1), this must be rejected. One need go no further than McGuinness’ case and Appendix 13 of the Continuous Improvement Guide where the practical implications of that case are discussed. Alternatively, if in doubt, one could go to Chapter 4 of the Rehabilitation Guidelines and refer to clause 24 and Note 2 where matters arising from Department of Defence v Fox[10] are addressed. [11] As we have said, these are not issues of novelty.
[10] [1997] FCA 3.
[11] Comcare’s Guidelines for Rehabilitation Authorities 2012 at page 13.
Nevertheless, we accept that, from time to time, in the circumstances of a particular case that doubt about the proper application of the law, or the construction of the relevant legislation, may arise to be tested.
Counsel for Ms Wood, Mr David Richards, asserts that the primary determination under s 37(1), requiring Ms Wood to undertake a rehabilitation program when no such program had been formulated, at least in draft, is so manifestly untenable and wrong that it should not have been made and Ms Wood should not have been put to the cost of taking action to remedy it.
While this submission has some force, the matter is perhaps not so clear and unambiguous as Mr Richards contends.
Firstly, Comcare asserts that the rehabilitation program was simply comprised of a case conference to develop a return to work program for Ms Wood. There is no compelling documentary evidence that any such program had been formulated and put, in draft, to Ms Wood or to those involved in her treatment. It appears that Comcare now concedes this point. This supports Mr Richards’ submission.
Secondly, in his report addressing Ms Wood’s capability of undertaking a rehabilitation program under s 36, Dr Hundertmark recommended that “… the general practitioner and psychologist should be engaged in working with the rehabilitation providers…”[12]. Whether or not this occurred is a matter of significant doubt. Nevertheless, it is conceivable that evidence may have been produced or led in the course of proceedings that this did occur and Ms Wood was consulted. We note in passing that the Rehabilitation Case Manager, Mrs Briony Solomon, was not required by either party to give evidence at the hearing.
[12] T63 folio 304.
Thirdly, there is no doubt that Comcare and the rehabilitation authority were bound to comply with the Rehabilitation Guidelines. Notwithstanding Appendix 13 of the Continuous Improvement Guide, which states that a “written draft rehabilitation program…should be provided”, the relevant parts of the Guidelines do not clearly set out in unambiguous terms that a rehabilitation program must exist, at least in draft, before a determination under s 37(1) can properly be made, having due regard to the matters set out in s 37(3). There is room for interpretation and doubt on this point under the instrument as presently drafted.
Fourthly, the proposition that McGuinness’ case is binding authority, on all fours with Ms Wood’s case, is not beyond question. Counsel for Comcare, Ms Jane Godtschalk, noted that McGuinness’ case was decided under s 37(1) as it stood prior to amendment in April 2007 –
37 Provision of rehabilitation programs
(1)A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.
Note: A rehabilitation program that is being provided to a person under this section might cease if the person is also provided with rehabilitation under the MRCA (see section 18 of the CTPA).
(2)A rehabilitation authority must not make arrangements for the provision of a rehabilitation program to its employees other than by an approved program provider.
(3)In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee’s opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee’s attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
In her submission, the amended terms of the section change its operation and raise questions about the applicability of McGuinness’ case in the present circumstances. The amended section follows –
37 Provision of rehabilitation programs
(1)A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
(2)If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a) provide a rehabilitation program for the employee itself; or
(b) make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
Note: A rehabilitation program that is being provided to a person under this section might cease if the person is also provided with rehabilitation under the MRCA (see section 18 of the CTPA).
(2A) A determination under subsection (1) is not a legislative instrument.
(3)In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee’s opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee’s attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
…
Insofar as the amendment of the section raises new issues of construction for consideration, we agree that those were live issues in these proceedings.
Fifthly, if the s 37(1) determination on 20 June 2012 was so manifestly untenable and wrong, as Ms Wood asserts, one might expect that her legal representatives would have raised this for consideration at the time or subsequently. Even though Mr Finlay has been representing Ms Wood in respect of her compensation claims for a long period prior to the subject determination in June 2012, the present evidence does not establish that any such issue was raised. On 28 June 2012, Mr Finlay wrote to Comcare seeking reconsideration of the 20 June 2012 determination on grounds that Ms Wood was not fit to undertake the rehabilitation program. In this letter, Mr Finlay refers to a determination under s 36, although no challenge was raised against any such determination under s 38. The issues and the contentions set out in the documents Mr Finlay signed and filed for Ms Wood in these proceedings do not raise any such issues.
The Applicant’s Consolidated Statement of Issues dated 20 May 2013 records that the first decision under review is to “… deny liability under Section 37 of the SRC Act for the applicant to undergo a programme of rehabilitation…”, when in fact the decision was that she should undertake such a program. The second decision under review is said to “determine that the applicant had not provided sufficient reason for her refusal to undergo a rehabilitation program in September 2012”. The issues are said to be –
1. Whether the applicant was fit to undertake a rehabilitation programme under Section 37 of the SRC Act…?
2. Whether the applicant remains unfit for her pre-in jury employment?
3. Whether the applicant ought to be retired on the grounds of work caused invalidity?
4. Whether there exists a reasonable excuse for the applicant being unable to undertake a rehabilitation program provided by the employee agency under Section 27 [sic] of the SRC Act
It appears to us that the Applicant’s Amended Consolidated Statement of Contentions also dated 20 May 2013 is directed to some of the issues and in certain regards it is inaccurate or possibly incomplete. The document has two headings – “Reviewable Decisions” and “Date of psychological injury – 12 April 2006”. The relevance of the latter remains a mystery. In respect of the reviewable decisions the following is said –
1. The reviewable decision of Comcare dated 14 August 2012 which affirmed the primary determination of Comcare dated 20 June 2012 which determined that the Agency had had regard to all the matters required under sub-section 37(3) of the SRC Act in determining that the applicant was fit to undertake a rehabilitation program under Section 37 of the SRC Act was not the correct and/or preferable decision.
2. The reviewable decision of Comcare dated 15 March 2013 to determine that the applicant had not provided sufficient reason for her refusal to undergo a rehabilitation program in September 2012.
In respect of the 14 August 2012 reviewable decision, it is clear enough that an issue is being raised about the regard that was had to the matters set out in s 37(3). Whether this raises any issue relating to the construction or application of s 37(1), under which the determination and the reviewable decision were made is far from clear. The remaining parts of the document shed no further light on the matter.
As to the reviewable decision of 15 March 2013, no comprehensible contentions are expressed. There is no other reference in the document to issues of suspension, failure to undertake a rehabilitation program, or the existence of a reasonable excuse.
As we have said, if the primary determination on 20 June 2012 was manifestly untenable and wrong, one would expect to find some reference to this in the documents pertaining to Ms Wood’s actions to challenge the determination that were prepared by her solicitor. The absence of such references suggests to us that it was not so clear cut.
While we are of the view that the manner in which Comcare has dealt with these matters at the reconsideration stage and in the conduct of these proceedings raises questions that may require further consideration, those are matters for Comcare and not for us.
This is not a case, such as Re Maley and Comcare[13], in which clear notice was given by Mr Maley, in the form of a “Calderbank letter”, that he would seek ‘indemnity costs’ if the matter proceeded to hearing and was resolved in his favour, as subsequently occurred. No such notice was given by Ms Wood in this case.
[13] [1998] AATA 543.
Furthermore, Maley’s case is distinguished because in that case the Tribunal concluded that “the matter proceeded in the Tribunal because of the unreasonable failure of the respondent to investigate the facts…”[14]. The same cannot be said here. Ms Wood’s case proceeded on the basis of the issues that were raised and agitated on her account by her legal representatives. That there was an issue of law, involving the proper construction and application of the legislation to the facts, appears not to have been raised or agitated by Mr Finlay, even though it was raised by the Tribunal. It is no surprise that this was picked up by Ms Wood’s counsel and, as we have said, Comcare was alive to the issue at least insofar as it was proceeding on the basis of an opinion it formed about the construction of the amended legislation.
[14] Ibid, at [28].
Ms Wood says that, as a result of the erroneous decisions, her weekly compensation for incapacity was stopped and she endured an extended period of financial hardship. In consequence of Comcare’s concessions at hearing, she will be entitled to back-payment of those weekly amounts of compensation. She complains that there is no provision for payment of interest on the amount of the arrears owing to her. This, she asserts, is another reason why she should be awarded 100 percent of her costs, in the circumstances.
We do not accept this submission. The discretion to award costs is confined to costs incurred in the proceedings before the Tribunal. It was open for Ms Wood to make an application to stay implementation or operation of the decision to suspend her rights to compensation. She did not do so.
Conclusion and decision
Considering all of the circumstances, on balance, we are not persuaded that this is a case that warrants departure from the usual course in respect to orders for costs, where a successful applicant may recover 75 percent of professional costs on a party and party basis under the Federal Court Rules. The circumstances are not such that departure from the usual course under the Tribunal’s Guide is justified.
In sum, we are satisfied that it is not appropriate to order Comcare to pay all of Ms Wood’s professional costs when exercising the discretion under s 67(8). The usual terms of order will apply under clause 6.8 of the Tribunal’s Guide, that is, Comcare is to pay Ms Wood’s reasonable party and party costs in these proceedings, as agreed or taxed, including –
(a)witness expenses at the prescribed rate;
(b)all reasonable and proper disbursements; and
(c)professional costs allowable in accordance with any scale of costs determined by the Tribunal, or, if there is no such scale, 75 percent of all professional costs, including counsel's fees, which would be allowable under the Federal Court scale.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Presiding Member, Dr B. Hughson, Member ...............................[sgd].........................................
Associate
Dated 5 July 2013
Date of hearing 26 June 2013 Counsel for the Applicant Mr D. Richards Advocate for the Applicant Mr A. Finlay Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Ms J. Godtschalk Advocate for the Respondent Mr A. Schofield Solicitors for the Respondent Comcare, SRC Legal
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