DAVID HANDS and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2010] AATA 120
•15 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 120
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2602
VETERANS’ APPEALS DIVISION ) Re DAVID HANDS Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date 15 February 2010
Place Brisbane
Decision The Tribunal sets aside the reviewable decision dated 5 June 2007, and substitutes the decision that Mr Hands has 30% permanent impairment resulting from “left rectus sheath neuropathic pain” and remits this to the respondent for assessment, taking into account Mr Hands’ previous payment for 10% permanent impairment arising from this injury.
The parties have 14 days’ leave to file submissions in relation to costs. In the event no submissions are filed in that period, then the respondent is ordered to pay the applicant’s costs with respect to Application 2007/2602 in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988.
..................[Sgd]............................
Senior Member
CATCHWORDS
MILITARY COMPENSATION – degree of permanent impairment – previous assessment of abdominal pain at 10% level in the Guide to Assessment – abdominal pain up to 30% of the time – causes significant interference with most activities of daily living – description meet requirements of 30% impairment – decision under review set aside and remitted to calculate additional compensation payable
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 6A, 25(4), 28(4), 67(8)
Bryant v Military Rehabilitation and Compensation Commission [2008] FCA 1424
Bryant and Military Rehabilitation and Compensation Commission [2009] AATA 825
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Secretary Department of Social Security v Riley (1987) 13 ALD 608
REASONS FOR DECISION
15 February 2010 M J Carstairs, Senior Member 1. David Hands was a serving member of the Royal Australian Air Force (“RAAF”) when he sustained an injury that was an unintended consequence of certain medical treatment provided to him at Commonwealth expense. Such an injury falls within a specially recognised category of compensation forming part of the Military Compensation Scheme, and is provided for in s 6A of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2. The respondent recognised the above injury as compensable, and, indeed, later accepted a further injury, being a psychiatric condition secondary to the original injury. Mr Hands has been paid compensation, including for permanent impairment.
3. The present dispute concerns the correct assessment of permanent impairment. Listing Mr Hands’ compensable injuries:
§ the primary injury is described in the compensation determinations as “left rectus sheath neuropathic pain following excision of a granulomatous mass”. I will refer to this injury as “abdominal pain”; and
§ the secondary injury, related to the abdominal pain, was first described in compensation determinations as “adjustment disorder with depressed mood – chronic”. This injury was seen as related to Mr Hands’ abdominal pain and l will refer to it as “the psychiatric condition”.
4. A determination was made on 19 March 2004 assessing Mr Hands’ abdominal pain as an intermittent condition under Table 13.1 of the Comcare Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”). Mr Hands was paid some $27,156 compensation for 10% whole person impairment.[1]
[1] T16.
5. Mr Hands then completed and lodged two forms in March 2006 appropriate for making permanent impairment claims, one being for the psychiatric condition[2] and the other for the abdominal pain.[3] As the respondent by this time had paid the lump sum for permanent impairment for Mr Hands’ abdominal pain, the latter request was characterised as one for “re-assessment”; the claim as it related to permanent impairment arising from the psychiatric condition was referred to as “an application,” language appropriate for a claim with respect to a new condition.[4]
[2] T51.
[3] T52.
[4] T86.
6. This takes on some importance as matters now appear before me. The next stages of decision-making were as follows:
§ on 12 March 2007, the respondent rejected Mr Hands’ request for an increased assessment for abdominal pain, for reasons that there had not been a 10% increase in impairment (a 10% increase being the statutory minimum required to make further payment for the abdominal pain: s 25(4) of the Act); and
§ on 26 March 2007,[5] Mr Hands was paid some $37,192 as compensation for 15% whole person impairment resulting from the psychiatric condition, as assessed under Table 5.1 of the Guide.
[5] T82.
7. Mr Hands did not seek reconsideration of the determination that had assessed his psychiatric condition. What leads me to that conclusion is that, on 22 March 2007, Mr Hands (via a letter from his solicitor) elected to accept the offered compensation for the psychiatric condition.[6] On the same date, in a separate letter, his solicitor specifically requested reconsideration of the decision made with respect to the abdominal pain.[7] As a consequence, the delegate in the reviewable decision (dated 5 June 2007) considered the matter solely with reference to the abdominal pain. Because the Tribunal’s powers under the Act only extend to reviewing the reviewable decision,[8] for Mr Hands to succeed he must show that his level of permanent impairment has increased due to his abdominal pain by 10% beyond the level previously assessed.
[6] T83 at 436.
[7] By letter dated 22 March 2007 (T85).
[8] Section 64 of the Act.
8. I further note that Mr Hands’ identification of what he wished reviewed by the Tribunal, as detailed in his “Application for Review of Decision”,[9] is consistent with what he asked to have reconsidered by the delegate: that is, he confined his request for Tribunal review to permanent impairment with respect to the abdominal pain. It is of course open to an applicant to this Tribunal to limit an application in this way; and it has been observed in other cases that this will be more readily taken to be the case where an applicant is legally represented.[10]
[9] T1A.
[10] Secretary Department of Social Security v Riley (1987) 13 ALD 608.
9. To the extent that both parties put the case in written submissions on another basis—namely that Mr Hands could succeed if he could show a 10% increase in the psychiatric condition or the abdominal pain—I respectfully do not agree. Mr Hands did not request a reconsideration of the assessment of his psychiatric condition and consequently he cannot do so now, within the present application to the Tribunal.
THE ISSUE
10. The issue before me is whether Mr Hands is entitled to a further payment for permanent impairment with respect to abdominal pain.
THE LEGISLATION AND THE GUIDE
11. As noted above, for Mr Hands to succeed, his level of permanent impairment has to have increased by 10%.That is, he needed (at the least) to meet the criteria in the Guide at the level of 20%. In that regard, it is necessary to look at a number of relevant key terms in the Guide. Firstly, the term “impairment” effectively adopts the same meaning as in the Act: “the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function”.
12. Practitioners who have assessed Mr Hands’ abdominal pain have used Table 13.1 of the Guide, which is appropriate as the symptoms are intermittent. Mr Hands’ abdominal pain, while chronic, ranges in intensity and can be of variable duration. The Table proceeds by reference to the frequency and duration of “attacks”, and the effects on activities of daily living. Table 13.1 of the Guide, so far as is relevant to the present appeal, provides:
% DESCRIPTION OF LEVEL OF IMPAIRMENT 10 Attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR Attacks occur less frequently AND cause interference with all activities of daily living other than self care 20 Attacks occur up to 25 percent of the time AND cause significant interference with most activities of daily living other than self care 30 Attacks occur up to 30 percent of the time AND cause significant interference with most activities of daily living other than self care 40 Attacks occupy up to 40 percent of the time AND cause significant interference with most activities of daily living other than self care 50 Attacks occupy up to 50 percent of the time AND cause significant interference with most activities of daily living other than self care 60 Attacks occupy up to 60 percent of the time AND cause significant interference with most activities of daily living other than self care 70 Attacks occupy up to 70 percent of the time AND cause significant interference with most activities of daily living other than self care 13.The term “activities of daily living” (“ADL”) is defined in the Guide:
Activities of Daily Living are those activities that an employee needs to perform to function in a non-specific environment ie: to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are:
·Ability to receive and respond to incoming stimuli
·Standing
·Moving
·Feeding (includes eating but not the preparation of food)
·Control of bladder and bowel
·Self care (bathing, dressing etc)
·Sexual function
14. When considering the requirement in Table 13.1 of the Guide that “attacks” must occur, regard must be had to Mr Hands’ descriptions of the attacks he suffers. He has explained his symptoms to doctors on a number of occasions. The account he gave when he was examined by Dr G Olrich is representative of what he reports:
Mr Hands said that his present pain commenced immediately after the operation on 04 July 2001. He describes pain which is localised just to the left and a little below the umbilicus. He said that the pain is localised to an area the size of a 20 cent piece. There was no previous history of similar pain.
Mr Hands said that he has had no significant periods of freedom from this pain since July 2001. He describes the pain as like a dull toothache, gnawing and grinding. The pain is subject to flare-ups, at which time the pain becomes like a burning or an inflammation. The pain may then involve a large area to the left side of the umbilicus, approximately four to six inches in diameter. There is no other radiation of the pain. The pain does not radiate through or around to the back.
When asked to quantify the pain on a scale between zero and 10, where zero is no pain and 10 is the worst imaginable pain, Mr Hands said that the pain is never less than three. It may hover around five. At other times it becomes unbearable. He said that the pain becomes unbearable once per week. The pain may become eight out of 10 for an hour and then come down to four out of five.
The pain is aggravated by abdominal movement or contraction of the abdominal muscles. Physical activity aggravates the pain. Walking aggravates the pain. The pain may be aggravated for no particular reason. Prolonged sitting beyond 15 minutes can sometimes aggravate the pain. The pain is not aggravated by moving his bowels.
Mr Hands said that the severe bouts of pain may take three days to a week to settle to a lower grade intensity. He said that he just has to sit and wait it out.
15. Mr Hands confirmed much of this in his oral evidence and in two written statements filed with the Tribunal.[11] I accept that Mr Hands gave an honest account of his symptoms; that these are debilitating for him; and that the more intense “attacks” can take days to settle.[12] His wife’s statement confirmed Mr Hands’ evidence in that regard. She underlined that he was a changed man after the surgery in 2001, no longer outgoing but retreating from social contact and limited in what he was able to do physically. I accept Mr and Mrs Hands’ evidence as being an honest account of his symptoms. I would add there were some suggestions that Mr Hands was addicted to, or abusing, narcotics but the doctors who have had the greatest input to his care and treatment protest that this is not the case. I accept their evidence in that regard.
[11] Exhibits A1 and A2.
[12] Transcript: 9 October 2009 at p 52.
16. There was no question that Mr Hands’ symptoms are permanent, which has allowed the two assessments of permanent impairment made thus far.
17. In addition, it was reasonably evident that Mr Hands’ chronic abdominal pain has caused him to no longer be in the workforce. Mr Hands was a man who, before this primary injury, had substantial educational and career achievements. He achieved tertiary qualifications in electronic engineering before joining the RAAF and attained the rank of Flight Lieutenant before taking his discharge. His career in the RAAF, which he clearly loved, came to an end due to and not long after the commencement of his abdominal pain. He did, however, attempt to maintain employment for a period after that time (until 2003) by working as an engineering consultant with an international company until he could no longer manage this either. Now he can undertake no employment at all.
18. I note that Mr Hands was first comprehensively assessed by Dr A Nowitzke in 2003. Dr Nowitzke concluded that it was appropriate to assess Mr Hands’ condition under Table 13.1 of the Guide at the 10% level, which refers to attacks occurring 12 or more times per year, causing minor interference with ADL.[13] Dr Nowitzke referred to the ADL and concluded that he considered Mr Hands to experience:
§ minor effects on standing and mobility; and
§ minor to moderate effects on sexual function.
[13] T7.
19. Some assistance can be had from the 2004 and 2006 reports prepared by Dr A Cook, consultant psychiatrist. These reports, while addressed to the psychiatric condition, remain useful for the discussion of Mr Hands’ experienced symptoms and the effects on ADL. In the 2004 report, Dr Cook took the view that Mr Hands had an adjustment disorder. He indicated in his report that he had considered, but rejected, other possible diagnoses, in particular “pain disorder”—a diagnosis available in the Diagnostic and Statistical Manual of Mental Disorders—due to the impact of psychological factors accounting for exacerbation and maintenance of pain. That is, there was an organic basis to the pain.
20. Dr Cook assessed the adjustment disorder at 5% under Table 5.1 of the Guide but recommended a review in 12 months time, believing there was a chance Mr Hands might show some improvement with treatment.
21. In his 2004 report, Dr Cook also noted the effects of abdominal pain on Mr Hands’ ADL (he said “many” ADL were so affected[14]) but, additionally, he identified effects on ADL from the psychiatric condition. He itemised these effects as being:
§ minor effects on mobility;
§ minor effects on feeding; and
§ severe effects on sexual function.
[14] T23 at p 219.
22. In 2006, Dr Cook observed Mr Hands to have unquestionably deteriorated,[15] such that he would now assign impairment under Table 5.1 of the Guide at 15%. Mr Hands had been treated and was unlikely to show further improvement. At this point, Dr Cook changed his diagnosis from adjustment disorder to major depressive disorder. Dr Cook again specifically ruled out “pain disorder”, which he explained as being a category of psychiatric disturbance. Dr Cook was satisfied that the effects of depression (taken alone) on ADL were:
§ moderate effects on mobility;
§ moderate effects on personal hygiene and self care;
§ moderate effects on ability to receive and respond to incoming stimuli; and
§ severe effects on sexual function.
[15] T65.
23. Dr Olrich, neurologist, reported on Mr Hands’ case also in 2006. I note from that report that Mr Hands gave a history to Dr Olrich of his pain being variable in intensity, but on a scale of 1 to 10 never below 3. Mr Hands also said that he had episodes occurring at least once a week when pain would be 8 to 10 for an hour or so, dropping back to stabilise at a level of 4. Dr Olrich said this pain was musculoskeletal rather than neurological in origin and complicated by quite severe depression. Dr Olrich concluded that Mr Hands met the requirements of a 30% assessment under Table 13.1. I conclude from this report (Dr Olrich not having been called to give oral evidence) that Dr Olrich considered Mr Hands was having attacks up to 30% of the time and met the other criterion of Table 13.1, which is that attacks cause significant interference with most ADL other than self care. His conclusions as relevant to ADL (which he said were affected “constantly”[16]) were as follows:
§ minor effects on standing;
§ moderate effects on mobility; and
§ moderate effects on sexual functioning.
[16] T64 at p 355.
24. Dr J Rodney, psychiatrist, who had been treating Mr Hands for over three years also prepared a report. Dr Rodney identified Mr Hands’ problem as being chronic neuropathic pain, with a psychological element to the pain itself, worsened by depression. Dr Rodney considered Mr Hands was not exaggerating his pain and was genuine. He made plain that he regarded Mr Hands’ pain and depression as markedly disabling and in his opinion his ADL were extremely limited.
25. Dr Rodney stated in his written report[17] that “every few months” Mr Hands has a severe exacerbation of pain that requires injections of pethidine. He stated that Mr Hands otherwise takes benzodiazepines to help with sleep and agitation, as well as valium occasionally, and Stilnox. Unlike Dr Olrich, Dr Rodney thought that Mr Hands’ pain was neuropathic following the surgery for the granuloma, but with a psychological element worsened by chronic depression. In that respect, it would seem that Dr Rodney suggested that drawing any boundary line between these two contributing factors to Mr Hands’ experienced pain levels would be difficult.
[17] Exhibit A5.
ASSESSMENT UNDER THE GUIDE: TABLE 13.1
26. The task was to assess the degree of permanent impairment resulting from the injury. Assessment or re-assessment, in accordance with s 28(4) of the Act, was under Part 2 of the second edition of the Guide, which applies from 1 March 2006 in respect of defence-related claims received after 28 February 2006. My task under the Guide was to determine the frequency of episodes of abdominal pain and the extent to which Mr Hands’ pain affects him in ADL, in order to conclude which description in the Guide is most appropriate for his level of impairment.[18]
[18] Bryant and Military Rehabilitation and Compensation Commission [2009] AATA 825 at [10].
27. Given Mr Hands’ chronic and ongoing symptoms and the medical evidence in that regard, the assessment of 10% for abdominal pain appeared, initially, rather low. The reference at the level of 10% in Table 13.1 requires having 12 or more episodes per year (and minor interference with ADL) or less frequent attacks with interference with virtually all ADL. Mr Hands clearly has many more episodes on a much more regular basis than that level describes (even taking account of the words “or more”). Table 13.1, at every level higher than 10%, refers not to a particular number of attacks, as at the 10% level, but instead to the percentage of the time that attacks occupy taking into account the presence of necessary effects on ADL.
28. My conclusions about the rating of Mr Hands’ impairment must take into account his description of his symptoms and their effects on his life, as informed by the medical evidence. The Guide is an imprecise and somewhat difficult tool to apply in assessing pain, and in particular chronic pain. I was mindful in rating Mr Hands’ impairment that conclusions are relevantly to be drawn from the history given by the applicant and people who can speak about matters going to impairment, not simply the evidence of medical practitioners.[19]
[19] Bryant v Military Rehabilitation and Compensation Commission [2008] FCA 1424.
29. In this case, there remains substantial dispute between the experts concerning what is the origin of the pain that Mr Hands suffers. Some doctors regard the pain as musculo-skeletal (or physical) in origin, some as neuropathic, some as psychiatric and, at least in the case of Dr Rodney, as being a mixture of neuropathic and psychological elements, the boundaries of which would be difficult to delineate, making more difficult the task of carrying out an assessment under the Guide. These differences do not prevent assessment, but do appear to have influenced the Tables that different doctors utilised to assign ratings.
30. The doctors who have reported on Mr Hands have come from a range of specialisations, as appropriate for a condition the boundaries of which are unclear. In the more recent reports at least (apart perhaps from those of Dr G Rice, psychiatrist and specialist in pain medicine), the doctors have approached the task of assessment by accepting that Mr Hands has two injuries. That is true of the reports of Drs Cook, Olrich and Rodney.
31. Dr Rice saw Mr Hands three times: firstly in 2005,[20] then in 2008[21] and again in 2009.[22] Dr Rice’s second and third reports, in particular, presented a rather unflattering view of Mr Hands somewhat at odds with Dr Rice’s first reported conclusions, which were that Mr Hands was totally incapacitated for work and suffering from a pain disorder and major depression.
[20] T40.
[21] Report dated 7 May 2008, Exhibit R2.
[22] Report dated 23 February 2009, Exhibit R3.
32. In his second report, Dr Rice referred to Mr Hands as having a narcissistic personality reinforced by playing a sick role, and that he was unlikely to rehabilitate himself while pursuing further financial compensation. He referred to Mr Hands' pain as being “jurisgenic”, by which he evidently meant that Mr Hands was exaggerating his pain behaviour as a goal-directed activity to maximise financial gain.[23] The “treatment” that Dr Rice thought appropriate for Mr Hands to rehabilitate himself was "the finalisation of the AAT matter as soon as possible".[24]
[23] R3, p 10.
[24] Exhibit R2, p 9.
33. Having heard Dr Rice’s evidence, it was clear that his conclusions did not rest so much on “hard science” as on what he referred to as the “art of medicine”. In that regard, I had the impression that his evidence lacked the objectivity and detachment one comes to expect of an expert witness. But more problematic in a case which concerned the correct assessment of Mr Hands’ permanent impairment by reference to the Guide, he indicated that he did not see assessment as his task at all. In that regard Dr Rice said:
I don’t have to measure those numbers … the gentleman was compensated before and that was considered to be adequate at the time and my expression “more than adequate” is in other words saying I agree with those figures.[25]
[25] Transcript: 9 October 2009 at p 27.
34. There was nothing in Dr Rice’s written reports that suggested he turned his mind in any detailed way to the task of assessment, nor did he address this in oral evidence beyond the bald conclusion that the “assessments of 15% under Table 5.1 and 10% under Table 13.1 are more than adequate”.[26] I would observe that expert evidence is not useful if it lacks reference to the facts which the expert has assumed, because without that the decision-maker will not have the criteria by which to evaluate the validity of the expert’s conclusions: Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705.
[26] Exhibit R3.
35. Regrettably, I regard Dr Rodney’s conclusions as providing no firmer foundation or guidance than those of Dr Rice. Dr Rodney ascribed a rating of 70% without elucidating his reasoning. Nor did he refer to the requirements in Table 13.1 to be satisfied at that level of impairment. His conclusions were cast in only the most general terms, and primarily with reference to the overall effects on Mr Hands’ life. Dr Rodney’s conclusion that Mr Hands has attacks that “occupy 70% of the time” does not accord with Mr Hands’ evidence about the attacks. What Mr Hands described was attacks occurring frequently, usually one a week and lasting a number of days, during which the intensity of pain subsided. There was nothing in Mr Hands’ evidence that suggested this was 70% of the time.
36. Mr Hands’ account of his abdominal pain was that it affected most ADL with the exception of “control of bladder and bowel”. I note that he changed his mind between his two written statements[27] with respect to whether he experienced any effects on feeding and eating. Only Dr Cook ever agreed there were effects on eating (minor effects), but specified that these effects were the result of the psychiatric condition.[28]
[27] Exhibits A1 and A2.
[28] T23 at p 219.
37. Mr Hands, as a lay person, could not be expected to make the necessary distinction between effects on ADL attributable directly to one injury (abdominal pain) and those attributable to the other, psychiatric, injury. Hence, on balance, I conclude that the ADL of “feeding” and “bladder and bowel control” are not affected by the abdominal pain.
38. The parties agreed that for Mr Hands to achieve any rating higher than 10%, he needed to show that there was “significant interference with most” ADL. They agreed that this meant Mr Hands needed to show there were significant effects on more than three ADL (effects on the ADL of “self care” being excluded by the terms of the Guide). I doubt this simple numeric test would be appropriate for all cases; however I do not have to decide that here in light of the conclusion that I have reached, which is that four ADL are significantly affected: those ADL being standing, moving, sexual function and ability to receive and respond to incoming stimuli.
39. Relevant to my assessment, I would firstly make the observation that I had no doubt Mr Hands suffers from a very disabling level of pain that has affected him in all levels of his life. The medical evidence shows that incontrovertibly. It was clear to me that Mr Hands’ working life came to an end with the onset of his chronic ongoing pain and that that pain had many effects on his ability to participate in social and community life. As I understood the evidence, Mr Hands is brought to a standstill when experiencing specific attacks of pain. He attempts to moderate his level of experienced pain and bring it back to a level that is manageable for him. I accept his evidence; I conclude that the effects on the relevant ADL are significant, not insignificant.
40. There is sufficient evidence in the numerous medical reports to account for the effects on three ADL, but I would make special mention of the fourth ADL, “receiving and responding to incoming stimuli”. Mr Hands nominated this ADL as being affected. Only Dr Cook concurred to any extent[29] (I am mindful that Dr Cook was addressing the effects of the psychiatric condition in his comments, and not the abdominal pain). I note the observation of Dr Crammond in 2006, albeit not directed to assessing ADL, that Mr Hands complained of cognitive impairment and forgetfulness and that this had been observed by nursing and allied health staff at the Pain Clinic he had attended.[30] Mr Hands’ evidence about the effects of attacks on him and the level of pain he experiences supports a conclusion that this ADL is affected to a significant degree during attacks.
[29] T65 at p 373.
[30] T70 at p 382.
41. Taking account of Mr Hands’ evidence and the medical evidence as a whole, I regard Dr Olrich’s report as providing the most complete and well-reasoned application of the Guide to the facts of this case. I regard as correct Dr Olrich’s assessment that Mr Hands is affected by attacks that occur up to 30% of the time. This percentage accords with Mr Hands’ evidence. As to the effects on ADL, I have reached the conclusion, taking into account Mr and Mrs Hands’ evidence and the medical evidence, that Mr Hands’ attacks, when they occur, cause significant interference with most ADL.
42. I am accordingly satisfied that Mr Hands’ abdominal pain “attacks” occur up to 30% of the time and cause significant interference with ADL, so satisfying the requirements of an assessment of 30% under Table 13.1. As he has been paid 10% by prior determination, this means that he is entitled to an increase by 20% in that assessment.
DECISION
43. The Tribunal sets aside the reviewable decision dated 5 June 2007, and substitutes the decision that Mr Hands has 30% permanent impairment resulting from “left rectus sheath neuropathic pain” and remits this to the respondent for assessment, taking into account Mr Hands’ previous payment for 10% permanent impairment arising from this injury.
44. The parties have 14 days’ leave to file submissions in relation to costs. In the event no submissions are filed in that period, then the respondent is ordered to pay the applicant’s costs with respect to Application 2007/2602 in accordance with s 67(8) of the Act.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.
Signed: ..........................[Sgd].............................................
Mátyás Kochárdy, AssociateDates of Hearing 9 October & 6 November 2009
Date of Decision 15 February 2010
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Mr John Cockburn
Counsel for the Respondent Mr Gim Del Villar
Solicitor for the Respondent Australian Government Solicitor
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