Flynn and Telstra Corporation Limited

[2003] AATA 1055

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1055

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N99/870

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TROY MICHAEL FLYNN

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal The Hon R N J Purvis QC, Deputy President

Date16 October 2003

PlaceSydney

Decision Having considered the principles relevant to the exercise of it’s discretion the Tribunal is satisfied that the Applicant should be granted an extension of time to make a second application for review of the reviewable decision of 6 April 1999. Extension of time is granted up until 17 January 2003.

[Sgd] The Hon RNJ Purvis QC   Deputy President

CATCHWORDS

Application for extension of time to lodge a second appeal – Application for review of reviewable decision – withdrawal of previous application – proceedings commenced in District Court seeking damages pursuant to provisions of the Safety, Rehabilitation and Compensation Act 1988 – action taken to strike out proceedings for want of jurisdiction – inability to bring action under section 45 because a determination had been made by Respondent under section 24 – assessing compensation as nil – condition for election under section 45 not satisfied – second application to Tribunal competent – consideration of factors relevant to extension of time – extension granted.

LEGISLATION

Administrative Appeals Act 1975, sections 29 and 42A

Safety, Rehabilitation and Compensation Act 1988 sections 24, 27, 44 and 45

CASE LAW

Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537

Re Greiveson and Repatriation Commission (AAT 12759, 23 March 1998)

Joyon v Telstra Corporation Limited [1999] AATA 376

Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344

Itek Graphix Pty Limited v Elliot 54 (2001) NSWLR 207

REASONS FOR DECISION

16 October 2003 The Hon R N J Purvis QC, Deputy President    

the application

1.      This is an application made on 17 January 2003 on behalf of Mr Troy Michael Flynn ("the Applicant") seeking:

· To reactivate his previous application before the Tribunal for review of a reviewable decision of a delegate to Telstra Corporation Limited (“the Respondent”) in respect of sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) dated 6 April 1999;

·     Alternatively the Applicant seeks:

(a)an extension of time to lodge an appeal of the reviewable decision dated 6 April 1999

(b)a formal review of the reviewable decision of 6 April 1999

2.      As more formally put by Mr Mark Daley of Counsel appearing on behalf of the Applicant at the present hearing, the Applicant seeks:

· an extension of time pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975 to lodge an application for review of the decision of 6 April 1999

· or in the alternative pursuant to subsection 42A(10) of the Administrative Appeals Tribunal Act 1975, an order reinstating the application earlier lodged by the Applicant and dismissed by the Tribunal on 16 August 2000.

the hearing

3. At the hearing of this application the Applicant was represented by Mr Daley of Counsel, the Respondent by Mr Brendan Kelly of Counsel. The documents that had been lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, in matter N1999/870, were re-tendered in this application and marked as T1 - T111. Written material tendered on behalf of the parties was received in evidence and marked accordingly namely:

Exhibit	Description	Date
A	Affidavit of Togiao Kha with attachments	27 March 2003
B	Affidavit of Togiao Kha with attachments	13 June 2003
C	Affidavit of Troy Flynn	19 February 2002
D	Affidavit of Troy Flynn	27 March 2003
E	Affidavit of Mary Nguyen with attachments	21 February 2002
F	Transcript of proceeding N2001/1752	12 April 2002
G	Notice of Withdrawal	16 April 2000
I	Affidavit of Natalie Fisher with attachments	17 April 2003
J	Heads of Agreement	16 August 2000

4.      The Applicant, Ms Mary Nguyen, Ms Togiao Kha and Ms Natalie Jane Fisher gave evidence in the application on which they were each cross-examined.

the application for review of the decision and it’s withdrawal

5. Under date 6 April 1999, a determination was made pursuant to the provisions of the SRC Act as follows (T78, p111):

"In the matter of the claim of Troy Flynn for permanent injury under the SRC Act in respect "sore lower right back, pain and numbness down right leg and sore right abdomen at times"

DETERMINATION T9700450

In pursuance of the provisions of the SRC Act I hereby determine:

1. That based on the available evidence, Troy Flynn is deemed to suffer no whole person impairment of the lower back, right leg and abdomen in accordance with Section 24 of the SRC Act.

2.Troy Flynn is therefore not entitled to payment under Section 24 or Section 27 of the SRC Act."

6.      On 25 May 1999 the above decision was affirmed as follows (T83,p117):

"In the matter of the claim for compensation in respect of Troy Flynn, employed by the Telstra Corporation Limited (Telstra), for compensation under the Safety, Rehabilitation and Compensation Act 1988:

The following determination is made:

DETERMINATION T9700450 (REVIEWABLE DECISION)

In pursuance of the provisions of the Safety, Rehabilitation and Compensation Act 1988 namely Section 62(5), I hereby affirm the decision dated 6 April 1999:

1. Telstra Corporation Limited is not liable to pay the said Troy Flynn a lump sum payment under Section 24 and Section 27 of the SRC Act in respect of muscular strain right lower back."

7.      A request was made on behalf of the Applicant by letter of 9 June 1999 seeking review by the Tribunal of the decision of 6 April 1999 (T86, p.122).

8.      The Applicant retained Messrs Bryden’s Law Office to process his application on his behalf and as he put it "left my claim in the hands of my solicitors and have attended medical appointments, conferences and hearings at their request".

9.      The application was in due course listed for hearing before the Tribunal on 16 August 2000. The Applicant was represented by Counsel and an instructing clerk. In his affidavit of 27 March 2003 (Exhibit D) the Applicant says:

“5.In accordance with legal advice provided to me by him [Counsel] I gave instructions to withdraw my claim before the Administrative Appeals Tribunal.

6.It was never my intention by withdrawing my claim to finalise my claim for compensation altogether.

7.It was my understanding that in withdrawing my claim I was agreeing to pursue the claim in the District Court which I understand was the advice given to me by Counsel.”

10.     The advice of Counsel was to the effect that the Applicant should pursue a claim at common law and accordingly withdraw his proceedings before the Tribunal.

11.     The parties by their legal representatives did, on 16 August 2000, discuss the withdrawal of the proceedings before the Tribunal. A notation made by the solicitor then acting for the Respondent reads (Exhibit I):

"[Applicant] wants to bring a [common law] claim so wants to withdraw - confirmed not going to make a determination for 10% [because] he hasn't got one.

…

Instructed to agree to discontinue and pay up to $8,000 costs…

Put $8,000 take or leave it. Accepted.

…

Confirmed won't consent to extend limitation period I won't concede he has 10% impairment for purposes of [common law] - he has to establish that to satisfaction of the court anyway."

12.     The Applicant signed a ‘Notice of Withdrawal’ of his application for review. On agreement being reached, each of the Counsel signed a ‘Heads of Agreement’ document which reads as follows: (Exhibit J)

“HEADS OF AGREEMENT

1. That the Applicant withdraw his application for review

2. That the Respondent upon the Applicant withdrawing his application for review shall pay the Applicant's costs of the proceedings agreed in the sum of $8,000 (eight thousand dollars).”

13. Section 42A of the Administrative Appeals Tribunal Act 1975 provides as here relevant:

42A     Discontinuance, dismissal, reinstatement etc of application

(1)Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.

(1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

(1B)If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.

…

(6)If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.

…”

14. The effect of the dismissal of an application pursuant to the provisions of section 42A is that the decision of the primary decision-maker stands. The dismissal by its very nature leaves untouched that which went before. In the present application that means that the decision of the delegate of 25 May 1999, that there was no permanent impairment, is the operative decision in this case (Telstra Corporation Limited v Flynn (2002) 55 NSWLR 303).

15.     The $8,000 was paid by the Respondent to the Applicant's solicitors on account of their agreed costs and disbursements. The Respondent's own costs and disbursements of the then withdrawn application were approximately $11,500.

16. The advice given to the Applicant by his legal advisers was to the effect that a more appropriate course for he to take was to commence proceedings in the District Court and claim compensation pursuant to the provisions of the SRC Act. As here relevant the SRC Act provides:

"24      Compensation for injuries resulting in permanent impairment

(1)Where an injury to an employee results in a permanent impairment [Telstra] is liable to pay compensation to the employee in respect of the injury

…

(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by [Telstra] under subsection (4) being an amount not exceeding the maximum amount at the date of the assessment

(4)The amount assessed by [Telstra] shall be an amount that is the same percentage of the maximum amount as the percentage determined by [Telstra] under subsection (5)

(5)[Telstra] shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide

(6)The degree of permanent impairment shall be expressed as a percentage

(7)Subject to section 25, if:

…

(b)[Telstra] determines that the degree of permanent impairment of the employee is less than 10%

an amount of compensation is not payable to the employee under this section

…

(9)       For the purposes of this section the maximum amount is $80,000

44Action for damages not to lie against Commonwealth etc. in certain cases

(1)Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:

(a)an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or

…

whether that injury, loss or damage occurred before or after the commencement of this section.

…

45       Action for damages – election by employees

(1)       Where:

(a)compensation is payable under section 24, 25 or 27 in respect of an injury to an employee; and

(b)the Commonwealth, a Commonwealth authority, a licensed corporation or another employee would, but for subsection 44(1), be liable for damages for any non-economic loss suffered by the employee as a result of the injury;

the employee may, at any time before an amount of compensation is paid to the employee under section 24, 25 or 27 in respect of that injury, elect in writing to institute an action or proceeding against the Commonwealth, the Commonwealth authority, the licensed corporation or other employee for damages for that non-economic loss.

(2)       Where an employee makes an election:

(a)subsection 44(1) does not apply in relation to an action or other proceeding subsequently instituted by the employee against the Commonwealth, the Commonwealth authority, the licensed corporation or the other employee for damages for the non-economic loss to which the election relates; and

(b)compensation is not payable after the date of the election under section 24, 25 or 27 in respect of the injury.

(3)       An election is irrevocable.

(4)In any action or proceeding instituted as a result of an election made by an employee, the court shall not award the employee damages of an amount exceeding $110,000 for any non-economic loss suffered by the employee.

…"

17. On 18 September 2000, the Applicant executed an ‘Instrument of Election’ pursuant to the provisions of section 45 of the SRC Act. By a ‘Statement of Claim’, dated 22 November 2000, he commenced proceedings in the District Court seeking "to have his entitlement to non-economic loss determined by the court in accordance with the act" (Exhibit I, Annexure C). The Respondent filed a ‘Notice of Grounds of Defence’ to the proceedings inter alia pleading that (Exhibit I, Annexure D):

"8.Further, the defendant says the plaintiff is not entitled to make an election pursuant to the provisions of section 45 of the Safety, Rehabilitation and Compensation Act (and has not done so) as the plaintiff neither had an entitlement to compensation at all nor an entitlement to compensation for permanent impairment as required by that section.”

18.     On 1 June 2001, the Respondent caused to be issued a ‘Notice of Motion’ maintaining that (Exhibit I, Annexure E):

"1.       There is no reasonable cause of action disclosed in the statement of claim.

2.        The proceedings are an abuse of the process of the court.

3.The plaintiff's claim is barred by section 44 of the Safety, Rehabilitation & Compensation Act 1988

4.The plaintiff has not made an election in writing prior to the issue of proceedings as required by section 45 of the Safety, Rehabilitation & Compensation Act 1988

…

6. The plaintiff's proceedings be struck out

…”

19. The position then was that the Applicant had claimed common law damages under section 45 of the SRC Act for injuries he sustained during the course of his employment with the Respondent. The Respondent had previously rejected the Applicant's application for lump sum compensation under section 24 of the SRC Act. Section 45 of the SRC Act allows an employee to elect to bring an action for common law damages against the Respondent where compensation is payable under section 24 of the SRC Act. The Respondent then submitted that the Applicant's statement of claim should be struck out as he was not entitled to bring an action under section 45 because a determination had been made under section 24.

20.     On 8 October 200, the District Court denied the Respondent the relief sought by it in the ‘Notice of Motion’. The Respondent appealed to the New South Wales Court of Appeal contending that: (Exhibit I, Annexure G):

“[The District Court] erred:

(a)in failing to find that a determination by a licensed corporation that liability to pay compensation has ceased, precludes a valid election for the purposes of section 45 of the Safety, Rehabilitation and Compensation Act…

(b)in failing to find that a determination by a licensed corporation that compensation is not payable under section 24 of the Act, precludes a valid election for the purposes of section 45 of the Act;

(c)in deciding the District Court had jurisdiction to review a decision of a licensed corporation that compensation was not payable pursuant to section 24, or at all, such an election pursuant to section 45 of the Act could be made;

…"

21.     On 7 August 2002 the appeal was heard and on 26 September 2002 a decision was handed down allowing the appeal (Telstra Corporation Ltd v Flynn [2002] NSWCA 315) and determining that (Exhibit I, Annexure H):

“(i) As there was a determination under s 24 the respondent had lost his right to make an election to claim common law damages under s 45: Walsh v The Commonwealth (1998) 155 ALR 182, per Sheppard AJA, Janssen v The Commonwealth [1994] 2 Qd R 596 considered.

(ii) The trial judge was incorrect in holding that there needs to be 'at least a final tribunal decision before a court is prevented from making a determination as to whether an employee is entitled to damages under s 45.

…

(Per Hodgson JA)

(i) As the appellant determined the amount of compensation under s 24 to be nil, a necessary pre-condition to a claim for damages under s 45 was not satisfied.”

22.     The Court further relevantly held (para 45):

"If there is an administrative determination under s 24, that determines whether or not a person is entitled to make an election under s 45. If a person is, by virtue of that determination, entitled to compensation for permanent impairment, it is not open to a relevant authority to challenge that entitlement in a common law claim. Likewise, an employee cannot circumvent such a determination by seeking to have the court determining the common law matter determine the s 24 matter again for itself.  This… gives effect to the clear words of the section in circumstances where there has already been an administrative determination."

23.     Whilst agreeing with the above Hodgson JA stated:

"48.In order for the respondent to be entitled to make an election under s 45 of the SRC Act, it was a necessary condition that 'compensation is payable under section 24… in respect of an injury” to him. Although s 24(1) provides that “where an injury to an employee results in a permanent impairment, [Telstra] is liable to pay compensation to an employee in respect of the injury”, s 11 and s 24(3) make it clear that the amount of that compensation is the amount determined or assessed by Telstra. In this case, Telstra determined and assessed the amount to be nil; and accordingly, the combined effect of s 24(1), s 11 and s 24(3) was that no compensation was payable to the respondent under s 24, and so the necessary condition for an election was not satisfied.

49.The provisions of s 11 and s 24(3) are subject to the provisions of the SRC Act providing for appeal to the AAT from the determinations and assessments of Telstra; but that cannot assist the respondent in circumstances where his appeal was withdrawn.

…"

24. The opinion of Counsel that motivated the advice given to the Applicant on 16 August 2000 was not in accord with that expressed by the Court of Appeal. It was necessary for there to be a determination under section 24 that compensation be payable in respect of an injury resulting in permanent impairment.

25. The Applicant by his application now before the Tribunal seeks to have the determination by the Respondent on 6 April 1999, whereby the amount of compensation was determined and assessed to be nil, reviewed. He asks that there be granted to him an extension of time in which he may lodge a fresh application (an application for review of the same decision having been dismissed by consent on 16 August 2000) under section 29(7) of the Administrative Appeals Tribunal Act 1975 or reinstatement under section 42A(10) of that Act.

a second application

26.     On behalf of the Respondent it was conceded that if it was appropriate in the circumstances to extend the time to lodge a second application, referable to the reviewable decision of 6 April 1999, it was competent for the Applicant to lodge such a second application.

27.     The Tribunal is estopped from entertaining a further application for review of a decision where an earlier application for review of the same decision has been disposed of by a decision on the merits or a consent decision (see Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at 311). But as it was stated in Re Nicholson and Secretary, Department of Social Security (1990) 21 ALD 537 at 544:

"… [T]he Tribunal may have exercised all of its powers in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to review of a decision. It follows that the applicant may bring a fresh application to review that decision. "

28.     Substantial review on the merits would then ensue.

29.     A dismissal under subsection 42A(1)(B) pursuant to a ‘Notice of Withdrawal’ does not then preclude a fresh application for review of a decision being made and at the same time the seeking of an extension of time to make the application (Re Greiveson and Repatriation Commission (AAT 12759, 23 March 1998); see also Joyon v Telstra Corporation Limited [1999] AATA 376 para 5).

application for extension of time

30. Section 29(7) of the Administrative Appeals Tribunal Act 1975 provides:

"The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section)."

31. In considering an application for an extension of time pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal is to consider the various factors identified in Hunter Valley Development Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344, as discussed in Re Mulheron and Australian Telecommunications Corporation (supra), and as elaborated upon in Itek Graphix Pty Limited v Elliott (2001) 54 NSWLR 207 especially at 225, 226 (paras 91, 97 and 98).

32.     The relevant principles that are to guide the exercise of the Tribunal’s discretion, although not exhaustive may be summarised as follows:

·     such an application will not be granted unless the Tribunal is positively satisfied that it is proper so to do

·     the application for extension of time is to show an acceptable explanation of the delay

·     the Applicant is to show that it is fair and equitable in the circumstances to extend time

·     action taken by the Applicant, other than by making an application for review, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished

·     a distinction is to be made between the case of a person who, by non curial means, has continued to make the decision-maker aware that he contests the finality of the decision, and a case where the decision-maker was allowed to believe that the matter was finally concluded

·     prejudice to the Respondent including any prejudice in defending the proceedings occasioned by the delay

·     the mere absence of prejudice is not enough to justify the grant of an extension

·     a delay which may result, if the application is successful, in the unsettling of other people or established practices is likely to prove fatal to an application

·     the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted

·     considerations of fairness as between the Applicant and other persons

·     a deliberate decision to allow a statutory limitation period to expire is a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it would be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave.

passage of time explanation for delay

33.     There is no doubt that the Applicant has consistently sought to advance his claim for compensation. He acted on the advice of his Counsel when earlier proceedings in the Tribunal were withdrawn and dismissed. They had, by that time, progressed to a date for a hearing. He maintained his position in the District Court and Court of Appeal proceedings. At all relevant times the Respondent was well aware of the Applicant's intention to seek compensation and to seek to set aside the nil determination made by the Respondent. The decision of the District Court, if allowed to stand, would have resulted in the matter going to trial. A dismissal of the appeal would likewise have led to a hearing on the merits.

34.     The period elapsing between 26 September 2002 and 17 January 2003 was attributable to consideration being given as to whether the Applicant should seek leave to appeal to the High Court. At no time has the Applicant desisted in his efforts to have his claim heard and determined on the merits. The Respondent has at all times been aware that the decision was being contested. The Applicant took the course he did solely on legal advice. There is no fault on his part.

35.     This is not, as the Tribunal sees it, a situation where the Applicant has made a deliberate decision to allow the statutory period to expire. The special circumstances of the common law proceedings and the finding of absence of jurisdiction explain satisfactorily the conduct of the Applicant.

significant prejudice to the respondent

36.     The Respondent has incurred legal costs and disbursements relating to the District Court and Court of Appeal proceedings estimated in an amount of $53,000; $11,000 of which relates to the District Court and the remainder to the Court of Appeal. The Court of Appeal granted the Respondent a certificate under the Suitors’ Fund Act 1951 (NSW). The Respondent also paid the sum of $8,000 at the time the application was withdrawn and dismissed by the Tribunal.

37.     The fact that leave to appeal was granted and the decision on appeal, each indicate a public interest in and benefit from the issue being determined and the statutory provisions clarified.

38.     Any prejudice to the Respondent in time being extended lies not in the lapse of time per se, for the Applicant is still it’s employee. Medical reports are available at least to the time of withdrawal and dismissal of the first application. They can no doubt be shortly updated.

39.     Additional costs will be incurred but they will be relatively modest.

40.     The Respondent says that the Applicant should be estopped from making a second application by reason of the agreement reached entailing payment of the Applicant's costs at the time of withdrawal of the first application.  It may be, as a file note of the Respondent's then solicitor suggests, that the Respondent had no confidence in the Applicant succeeding in the District Court and that it paid the costs in the belief that this would constitute an end to the matter. But in this regard it may, as did the Applicant, have made a mistake. 

41.     It is competent in these circumstances for the Applicant to apply to have time extended to make a second application. Estoppel does not operate to preclude his doing so.

wider prejudice to the general public

42.     There is not any evidence as to a disruption to established practices being consequent upon an extension of time.

merits of substantive application

43. The Respondent does not deny that the Applicant has evidentiary medical material supportive of his case and does not say that there is no merit in an application for review. This material would have been before the Tribunal if it had proceeded to a hearing of the initial application, as would the medical material to be tendered on behalf of the Respondent. The documents required to be lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 disclose that the Applicant has, at the least, an arguable case.

44.     The Tribunal is satisfied that there is merit in the substantive application. The Applicant has to this time been precluded from having his application heard and determined on its merits.

fairness of granting extension of time

45.     It is said on behalf of the Respondent that it is not fair and equitable to extend time as the Applicant of his own accord - be it on legal advice – “went off to pursue other proceedings.." This he did, but in the circumstances discussed earlier in these reasons.

justice of case requiring exercise of the discretion and decision

46.     The Tribunal is satisfied that it is fair and equitable in the circumstances of this matter to extend time to the Applicant to make a second application for review of the April 1999 reviewable decision up until 17 January 2003. The Applicant has not had his application considered on the merits. The course he took by withdrawing his application before the Tribunal and commencing proceedings at common law did not lead to a determination of the substantive issue but only a finding as to absence of jurisdiction and a statutory bar to action in the District Court. The reason for the delay is solely attributable to the decision by the legal advisers to maintain proceedings in another place. The Respondent at all times has been aware that the Applicant contests the finality of the decision and was not placed in a position where it might have believed the matter was finally concluded. Prejudice to the Respondent does exist in a financial sense but this is insufficient to override the other guiding factors. There is undoubtedly merit in the Applicant's application for review.

47. In view of the decision of the Tribunal, referable to the application for extension of time, it is not necessary for it to entertain the competency of an application for reinstatement under section 42A(10) of the Administrative Appeals Tribunal Act 1975.

48.     Having considered the principles relevant to the exercise of it’s discretion, the Tribunal is satisfied that the Applicant should be granted an extension of time, to make a second application for review of the reviewable decision of 6 April 1999.  Extension of time is granted up until 17 January 2003 for the lodging of such application. To the extent that it is necessary to be more specific the letter of 17 January 2003 from Messrs Brydens Law Office to the Tribunal is deemed to be such application.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, QC Deputy President

Signed:         A. Krilis
  Associate

Date/s of Hearing  25, 26 September 2003
Date of Decision  16 October 2003
Counsel for the Applicant         Mr Mark Daley
Solicitor for the Applicant          Ms Togiao Kha
Counsel for the Respondent     Mr Brendan Kelly
Solicitor for the Respondent     Ms Natalie Fisher