Hawkins and Repatriation Commission

Case

[2005] AATA 132

14 February 2005

No judgment structure available for this case.

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 132

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/476

VETERANS’ APPEALS DIVISION )
Re KEVIN HAWKINS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date14 February 2005  

PlaceBrisbane

Decision

The decision under review is affirmed.  This means Mr Hawkins’ application for review is unsuccessful.

.        ..........[Sgd] .........

EK Christie
  Member

CATCHWORDS

VETERANS AFFAIRS – reasonable hypothesis – cervical spondylosis and operational service – Statement of Principles and up-to-date medical and science – words and phrases:  “carrying loads … on the head while upright….”  

Veterans’ Entitlements Act 1986 ss 6D, 120

Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366
East v Repatriation Commission (1987) 74 ALR 518; (1987) 12 ALD 389
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 29 ALD 1
Deledio v Repatriation Commission (1997) 47 ALD 261
Dixon v Repatriation Commission (1999) 29 AAR 235; (1999) 59 ALD 315
Byrnes v Repatriation Commission (1993) 177 CLR 564

Metropolitan Gas Co v Federated Bas Employees’ Industrial Union (1925) 35 CLR 449

Bourne v Norwich Crematorium [1967] 1 WLR 691

Avondale Motors (Parts) Pty Ltd v Federal CommissionerofTaxation (1971) 45 ALJR 280

REASONS FOR DECISION

14 February 2005   Dr EK Christie, Member

1.      This is an application by Kevin Hawkins to review a decision of the Veterans’ Review Board (“the VRB”) made on 28 February 2003 that decided Mr Hawkins’ cervical spondylosis was not war caused.

2.      At the hearing, Mr Hawkins was represented by Mr N Dawson of Counsel.  Mr B Williams, a Departmental Advocate represented the respondent.

3. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative appeals Tribunal Act 1975 (the “T” documents, Exhibit R1) and the various documents tendered by the parties.

Facts

4. Mr Hawkins served in the Royal Australian Navy from 7 September 1950 to 6 September 1956. He rendered eligible war service in the form of operational service on HMAS Sydney from 31 August 1951 to 23 February 1952 in Korean waters and from 27 October 1953 to 2 June 1954 in Japanese and Korean waters, pursuant to section 6D(1) of the Act.

Issues to be Decided

5.      At the commencement of the hearing, the parties agreed that the only issue for the Tribunal to decide was the interpretation of Factor 5(j) of the Statement of Principle No 50 of 2002, “Cervical Spondylosis”:

“(j)carrying loads of at least 15 kg on the head while upright to a cumulative total of 72 000 kg within any 10 year period, before the clinical onset of cervical spondylosis; or”

6.      Furthermore, the parties agreed that, in relation to Factor 5(j):

(a)The SoP threshold for carrying 15kg was not in dispute in terms of the weight of the parachute bundles;

(b)The SoP threshold of carrying a cumulative load totalling 72,000kg within any 10 year period was not in dispute; and

(c)That the requirements imposed by the SoP for the clinical onset of spondylosis was satisfied.

7.       Accordingly, the question of law for the Tribunal to decide was the meaning of the phrase “carrying loads … on the head while upright” as qualified by the weight and time thresholds contained in Factor 5(j).

Examination of the Factual Evidence

8.      Mr Hawkins gave oral evidence to the Tribunal.  Neither party called expert medical witnesses or any other lay witnesses.

Evidence of Kevin Hawkins

9.      Mr Hawkins described the procedures involved in carrying parachute bundles to and from hangar storage racks to aircraft.  The parachute bundles comprised the parachute, a dinghy and a water cushion.  The parachute bundles were removed from racks 5 foot above “ground” level, then carried up a narrow 6 foot high ladder to the flight deck.  This procedure was difficult because the ship would be rolling at sea, necessitating him having to hang on to a rope with his free hand.

10.     The parachute bundles were carried on his shoulders and he would be leaning the whole time.  He said that the parachute bundle lay against his head and neck.  He said that on reaching the flight deck, the parachute bundle would be placed on to the plane by dumping it on to the wing before leaning over and placing it into the aircraft.  This process was repeated in reverse to return parachute bundles from the aircraft to the hangar storage racks. 

11.     Mr Hawkins’ oral evidence made it quite clear how the parachute bundles were carried.

(a)In his evidence-in-chief when asked “how the parachute bundle was positioned against you when you were going up the ladder” he replied “we had to lift them on to the shoulder”.  Later he acknowledged that the parachute bundle was against his head”;

(b)During cross-examination he stated that the parachute bundles were carried on his shoulder “all the time” and that he had not carried the parachute bundles on top of his head or on his head; and 

(c)He acknowledged in a question asked by the Tribunal that the parachute bundle “was laying on [his] shoulder and pushing against [his] head and [his] neck”. 

Contentions and Submissions of the Parties

12.     Mr Dawson submitted that Mr Hawkins satisfied the relevant SoP with respect to carrying the load (i.e. the weight of the parachute bundle) on the side of his head.  In this regard, he referred to Mr Hawkins’ evidence wherein he stated that he carried the load on his shoulder and the side of his head.

13.     It was his submission that the SoP was a statutory instrument and should be read in the same principles which apply to statutory interpretation.  Furthermore the word “upright” carried on normal meaning and the word “upright” referred to the applicant’s position – but did not have any reference to the head.  It was also his contention that, whilst the SoP required the veteran to be “upright”, it did not require the load to be on the top of his head.

14.     Mr Dawson challenged the respondent’s proposition that Factor 5(j) of the “Cervical Spondylosis SoP” was to be constructed by “reading words into it”.  That is, in order for Factor 5(j) to be satisfied, the load of the parachute bundle must be on top of the head.

15.     Mr Dawson contended that the following publications contained in the RMA “Cervical Spondylosis Reference List” (78-3) as at 4 June 2002:

“RMA ID Number 5535:  Jumah KB and Nyame PK (1994). Relationship between load carrying on the head and cervical spondylosis in Ghanaians. Correspondence West African Journal of Med. 13(3) pp 181-182.”

provided to the parties as part of a Tribunal Direction issued on 30 November 2004 and for which supplementary submissions were invited, was of no assistance to the interpretation of the Statement of Principles.

16.     Mr Williams submitted that Factor 5(j) of the “Cervical Spondylosis SoP” should be read in its entirety and that the intention of Factor 5(j) required the load or weight be on top of the head.

17.     However, in Mr Hawkins’ circumstances this requirement was not satisfied as the load burden of carrying parachute bundles was taken on his shoulder whilst his head was inclined.

18.     Mr Williams contended that the words in Factor 5(j) of the SoP should be given their literal meaning.  He referred to the following meanings contained in the Macquarie Dictionary:

§“carrying”:    “to convey from place to place to another in a vehicle, ship,   picket, hand etc”; and

§“load”:         “that which is laid on or places in anything for conveyance”

19.     It was Mr Williams’ contention that the phrase contained in the SoP factor “carrying loads of at least 15 kg on the head while upright” described a force applied vertically to the spine; a force against the spine, as contended by the applicant, was not consistent with the plain meaning of the factor.  (Emphasis added)

20.     Mr Williams further contended, with the submission that the raised facts were not consistent with the SoP factor 5(j) as the applicant was not “carrying loads on the head”.  Consequently, a reasonable hypothesis was not raised when assessed against this SoP factor.

21.     Mr Williams concluded with the submission that the publication contained in the “RMA Cervical Spondylosis Reference List” (78-3) as at 4 June 2002 was not an aid to statutory interpretation as there was no ambiguity, obscurity or unreasonableness in the interpretation of Factor 5(j) of the SoP that warranted its consideration. 

Statutory Requirement and Legal Principles

22.     Section 120(1) of the Veteran’s Entitlement Act 1986 provides that, where a claim under Part II for a pension in respect of an injury, disease or death of a veteran relates to the operational service rendered by the veteran, “the Commission shall determine … that the injury, disease or death of the veteran was war caused …unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”

23. Section 120(3) of the Veteran’s Entitlement Act provides that in applying subsection (1), “the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining … that the injury, disease or death was war-caused …if the Commission, after consideration of the whole of the material before it des not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person”.

24.     Following the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four steps which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service.  In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four steps as follows:

“1.      The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.        If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 

3.        If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.

4.        The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved” (emphasis added). (at 49 ALD 206).

The following legal principles are relevant with respect to the Tribunal’s consideration of the four steps in the “Deledio methodology”.

§  Step 1: “Hypothesis

25.     A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.

§  Step 2: “Statement of Principles”

26.     The purpose of Statements of Principles was discussed in Stoddart v Repatriation Commission [2003] FCA 334 (by giving effect to the observations by Allsop J in Gorton at 335 [58-59]) as being to represent:

“…sound medical-scientific evidence and to identify, on that sound contemporary science, minimum factors relevant to the issue of the causal connection between injury, disease or death and service.”

and as deploying:

“...the most up-to-date medicine and science to identify or refine the proper scientific and medical frame of reference or universe of discourse for the reliable answering of the question whether the death, injury or disease was caused by the service.”

The Full Court concluded that Statements of Principles must be construed or understood in that context.

27.     The Explanatory Memorandum to the 1994 Amendments to the Act reads as follows at p(i) – (ii):

“The Repatriation Medical Authority will provide the appropriate forum for the resolution of technical medical-scientific issues.  This will ensure that there will be consistency on medical-scientific issues at all levels of the determining system…

The Authority will prepare Statements of Principles based on sound medical-scientific evidence that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service.

Statements of Principles prepared by the Repatriation Medical Authority will be disallowable legislative instruments that will be binding on the Repatriation Commission, the Veterans’ Review Board and the Administrative Appeals Tribunal.”

Step 3: “Reasonable Hypothesis

28.     In East v Repatriation Commission (1987) 74 ALR 518 the Full Federal Court at 534 said:

“A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts.  It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”

29.     In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges concluded:

“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”

30.     In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is:

“obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”

and

“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which supports the hypothesis and if the hypothesis can be regarded as` reasonable if the facts are true”

31.     With respect to the third step referred to in Deledio v Repatriation Commission (1997) 47 ALD 261, Heerey  FCJ stated:

“The particular claim then has to fit the template laid down in the SoP …Do the facts raised by the claimant give rise to a reasonable hypothesis. Proof of facts is not in issue at this point.”

§  Step 4: “Proof of Facts

32.     With respect to the fourth step referred to in Deledio, Wilcox J in Dixon v Repatriation Commission (1999) 29 AAR 235 at 242-2 stated:

“… As the Full Court said in Deledio it is only at the step 4 of the process that the Tribunal will be required to find facts from the material before it.”

33.     In Byrnes v Repatriation Commission (1993) 177 CLR 564, the High Court, in its analysis, said at 571:

“The position may be summarised as follows: 

(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran’s service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.

(2) If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:

(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the

Consideration of the Issues

34.     The Tribunal has taken into account all evidence, submissions, legislation and all law in order to make the correct and preferable decision regarding whether Mr Hawkins cervical spondylosis condition was war-caused.  The Tribunal has adopted the sequential stages in Deledio’s case with respect to resolving the issues in dispute.

Step 1:  Whether the material before the Tribunal points to an hypothesis that connects the injury of the veteran with the circumstances of service

35.     The hypothesis raised by the applicant connecting Mr Hawkins’ operational service with his injury was that his activities in the Fleet Air Arm of carrying the weight of a load (parachute bundles) on the side of his head to aircraft on the flight deck, during operational service, led to his cervical spondylosis condition.

36.     There is no dispute that Mr Hawkins was engaged in such activities during operational service and that he now suffers from the condition of cervical spondylosis.

37.     Applying the principles in Stares, the Tribunal concludes that the essential elements are pointed to by the material before the Tribunal and so raises an hypothesis connecting the cervical spondylosis condition of Mr Hawkins with the circumstances of his service.

Step 2: Whether a SoP is in Force

38.     The Statement of Principles for “Cervical Spondylosis” was introduced on 3 March 1999 (No 31 of 1999).  Since that date, the Statement of Principles has been amended or revoked on 7 occasions.  The current “Cervical Spondylosis Statement of Principles”, No 50 of 2002, was introduced on 12 June 2002.  This Statement of Principles contained, for the first time, the following factor – inter alia, that must as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis [or death from cervical spondylosis] with the circumstances of a person’s relevant service:

“5(j)     carrying loads of at least 15kg on the head while upright to a cumulative total of 72,000 kg within any 10 year period, before the clinical onset of cervical spondylosis; or….”

39. The question that s120(3) requires to be asked is whether some, or all of, the facts raised by the material before the decision-maker gives rise to a reasonable hypothesis connecting Mr Hawkins’ cervical spondylosis condition with his operational service: see Byrnes case at 571.

40.     Accordingly, Factor 5(j) of the “Cervical Spondylosis SoP” is the relevant factor in relation to the hypothesis advanced by the applicant.’

Step 3:  Whether the Hypothesis is a Reasonable One

41.     Before this step can be considered, the statutory interpretation of Factor 5(j) must be determined in order to conclude whether the hypothesis raised is consistent with the relevant template viz. Factor 5(j) of the “Cervical Spondylosis SoP”.  Specifically, the meaning of the phrase “carrying loads… on the head while upright” within the context of the qualifications imposed by the weight and time thresholds.

“It is a received canon of interpretation that every passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument: ex antecedentibus et consequentibus fit optima interpretation.  In construing an instrument ‘every part of it should be brought into action, in order to collect from the whole one uniform and consistent sense, if that may be done; or, in other words, the construction must be made upon the entire instrument, and not merely upon disjointed parts of it; the whole context must be considered, in endeavouring to collect the intention of the parties although the immediate object of inquiry be the meaning of an isolated clause’ (Broom’s Legal Maxima, 9th ed., pp. 367-368, and cases there cited; and per Lord Haldane, L.C., in Toronto Suburban Railway v Toronto Corporation [1915] A.C. 50-, at 597). If, when so read, the meaning of the section is literally clear and unambiguous, nothing remains but to give effect to the unqualified words. But unless that so appears, other considerations arise to assist the court to the true construction”:

see Isaacs and Rich JJ Metropolitan Gas Co v Federated Bas Employees’ Industrial Union (1925) 35 CLR 449.

42.     The “Cervical Spondylosis SoP” prepared by the RMA contains both medical and technical terms.  “Many words and phrases have both an ordinary and a technical meaning.  In deciding which is intended, it is necessary to consider the surrounding words.  If these are technical, it is a reasonable assumption that the term is intended to bear its technical meaning.  If however the term is used in a non-technical context it is presumed to have its ordinary meaning…”  See Bennion on Statutory Interpretation (Fourth Edition) 2002, Butterworths, London.

43.     The term “head” has the following ordinary meaning:

1.The upper part of the human body joined to the trunk by the neck:  Macquarie Dictionary (3rd Edition, 2001).

2.The upper part of the human body … typically separated from the rest of the body by a neck and containing the brain, mouth and sense organs:  The Concise Oxford Dictionary (10th Edition 1999).

44.     The term “head” has the following technical meaning:

1.That part of the animal body containing the brain and organs of sight, hearing, smell and taste: Tabers Encyclopaedia Medical Dictionary (17th Edition, 1993).

2.The uppermost part of the body, containing the brain, organs of sight, smell, taste, hearing and part of the organs of speech:  Gould Medical Dictionary (4th Edition, 1979).

45.     The Tribunal concludes that there is consensus between the ordinary meaning and technical meaning of the word “head”.  Accordingly, the Tribunal concludes that it would be reasonable to presume that the ordinary meaning applies with respect to its use in the “Cervical Spondylosis SoP”.

46.     The Tribunal further concludes that the term “upright” has its ordinary meaning.  The term “upright” is defined as:

1.erect or vertical, as in position or posture: Macquarie Dictionary (34rd  Edition 2001)

2.vertical, erect: The Concise Oxford Dictionary (10th Edition 1999).

47.     However, there is a further principle of statutory interpretation that must be considered in applying the meanings of these two terms contained in Factor 5(j) ie. their meaning should be derived from the context of the whole SoP.  In Bourne v Norwich Crematorium [1967] 1 WLR 691 at 696 (cited in Pearce & Geddes “Statutory Interpretation in Australia” 5th Edition, Butterworths (2001) at page 102), Stamp J states:

“Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases and then put back again into the sentence with the meaning which one has assigned to them as separate words so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.”

48.     This principle has been recognised by our courts and in Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 45 ALJR 280 at 283, Gibbs J stated “The meaning of the phrase like that of any other ambiguous expression, depends on the context in which it appears.”

49.     Accordingly, applying the principles in Metropolitan Gas, Bourne and Avondale Motors the Tribunal considers the context in which the terms “head” and “upright” appear in the phrase in Factor 5(j) and the “Cervical Spondylosis SoP.

50.     Clause 2(b) of the “Cervical Spondylosis SoP sets out the context of the phrase in Factor 5(j):

“For the purposes of this Statement of Principles, ‘cervical spondylosis’ means degenerative changes affecting the cervical vertebrae or intervertebral discs, causing affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis.”

51.     Statements of Principles prepared by the RMA not only represent mainstream medical opinion – but are based on sound medical-scientific issues at all levels of the determining system [see para 26, 27 of this decision].

52.     The Tribunal makes the observation that the RMA Article 5535: Jumah KB and Nyame PK (1994) “Relationship between load carrying on the head and cervical spondylosis in Ghanaians”  Correspondence,  West African Journal of Med. 13(3) pp 181-182, provided to both parties, identifies the aetiology of cervical spondylosis [1], as well as determining the statistically significant relationship between load carrying on the head and cervical spondylosis viz. “average weight of about 15kg or more over a period of 10-15 years or more”;  these weight and time limits are analogous to the thresholds contained in Factor 5(j).

[1] “The aetiology of cervical spondylosis with or without myelopathy is probably multifactorial and related to congenitally narrow spinal canal, direct spinal cord compression, as well as the blood supply to the spinal cord” (at p 182)

53.     The Tribunal concludes that the meaning of the words “head” and “upright” as contained in the phrase “carrying loads … on the head while upright” have qualifications imposed by the weight and time thresholds, and is dependent on the context of the SoP.  That is, the purpose of the “Cervical Spondylosis SoP” at clause 2(b).

54.     Mr Hawkins’ evidence to the Tribunal was quite clear in relation to the loads he carried whilst on operational service. 

(a)In his Witness Statement (Exhibit A3, 1 March 2004), Mr Hawkins states:

“6.Parachute combinations were carried on shoulders, and the placing of these combinations especially the rear cockpit of fire fly aircraft placed a great strain on back, shoulders and legs.

12.During my six years service I never saw any serviceman carry weights of 15 kg on his head”; and

(b)In his oral evidence, Mr Hawkins stated that the parachute bundles were carried on his shoulder and that the bundle pushed against his head and neck (para 11). 

55.     Accordingly, the Tribunal concludes that the 15kg threshold load as prescribed by the SoP [the parachute bundle] was carried by Mr Hawkins on his shoulder, against his head and against his neck.

56.     The Tribunal further concludes that the phrase “carrying loads on the head” in the context in which it appears in factor 5(j) of the “Cervical Spondylosis SoP” can be clearly distinguished from Mr Hawkins’ factual circumstances.  That is, the load of the parachute bundles were carried, inter alia, against his head.  The load was not carried on his head as required by the SoP. (Tribunal emphasis)

57.     The requirements imposed by the “Cervical Spondylosis SoP” specify “carrying loads on the head” – not against the head.  To read and interpret Factor 5(j) of the “Cervical Spondylosis SoP”, in any other way, would result in inconsistency in the determination of medical-scientific issues: see Explanatory Memorandum to the 1994 Amendments.

58.     For these reasons, the Tribunal finds that the hypothesis raised by the applicant is not consistent with the template as laid down in the SoP.  A reasonable hypothesis has not been raised that connects cervical spondylosis with the circumstances of Mr Hawkins’ operational service.  That is, the facts raised by the applicant do not give rise to a reasonable hypothesis: Deledio’s case.  Therefore the third step in Deledio is not met.  Accordingly, there is no need for the Tribunal to consider the fourth step in Deledio. 

59.     For all of the above reasons, the Tribunal affirms the decision under review. 

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed: ..Camille Banks

Associate

Date/s of Hearing  22 November 2004

Supplementary Submissions

Filed:  20 December 2004
Date of Decision  14 February 2005
For the Applicant  Mr N Dawson of Counsel
Solicitor for the Applicant              Legal Aid NSW
For the Respondent  Mr B Williams, Departmental Advocate

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