Homewood and Repatriation Commission - [2001] AATA 1043

DECISION AND REASONS FOR DECISION [2001] AATA 1043

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/870

VETERANS APPEALS DIVISION           )
           Re      STANLEY HAIG HOMEWOOD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date5 December 2001
PlaceMelbourne

Decision      The decision of the Veterans Review Board made on 22 October 1999 is affirmed.
  .....……………………………….
  Senior Member
CATCHWORDS
Veterans Entitlement - Fall in service - whether hips and back injured - whether factors under SoP's satisfied - decision affirmed.
Repatriation Commission v Gorton 2001 FCA 1194
Repatriation Commission v Keeley 2000 98 FCR 108
Repatriation Commission v Flynn 2001 60 ALD 453
Arnott v Repatriation Commission 2001 FCA 262

REASONS FOR DECISION

5 December 2001 Mr J. Handley, Senior Member

The applicant applies to review a decision made by the Veteran's Review Board made on 22 October 1999 refusing his claim for acceptance of the conditions of osteoarthrosis of his hips and lumbar spondylosis. In making that decision the VRB affirmed a decision previously made by the respondent.
The applicant presently receives pension at 70% of the general rate for the accepted conditions of osteoarthritis of his knees. The rejected disabilities of the applicant concern his right hip, his left hip, lumbar spondylosis, hypertension and right rotator cuff syndrome. The applicant is proceeding only with respect to the left hip osteoarthrosis and lumbar spondylosis. Review of the decision concerning osteoarthrosis of the right hip was withdrawn and there was no appeal with respect to the rejection of hypertension. The condition of right rotator cuff syndrome was not before the VRB with respect to the present review. It was rejected in 1991.
The hearing of the application commenced in Albury on 16 March 2001 but did not conclude. The Tribunal was constituted then by Doctor Re and myself. Prior to the resumption of the hearing on 23 August 2001 the term of appointment of Dr Re to the Tribunal expired. The representatives of the parties did not oppose the Tribunal being reconstituted for the purposes of continuing the hearing. On 23 August both representatives indicated that no further evidence would be called and by reason of an outstanding medical report and an illness of the applicant at the time the representatives requested that the hearing be adjourned to a date to be fixed and that written submissions be filed.
Both representatives have subsequently lodged written submissions and a medical report has also been lodged by the applicant's solicitor from Mr Coates an orthopaedic surgeon in Shepparton.
This decision has therefore been prepared having regard to the evidence heard on 16 March and a number of documents namely:
° documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act
°          Notes of evidence taken at Albury on 16 March 2001 (transcript was not available)
°          Transcript of proceedings of Veteran's Review Board hearing - 16 May 2000
°          Report of Mr Roger Coates dated 12 July 2001
°          Report of Dr Chan, 5 May 2001
°          Clinical Notes of Dr Chan (112 pages)
°          Physiotherapy assessment of Mr Marx dated 29 September 1988
°          Statement of the applicant dated 23 October 2000
°          Statement of Mrs Homewood dated 30 March 2001
°          Statement of Facts and Contentions lodged by the representatives of both
parties

° Written submissions lodged by the representatives of both parties
° Statements of principles (refer later)
Statements Of Principles

On 29 August 2001 a Full Federal Court in Repatriation Commission v Gorton 2001 FCA 1194 reviewed a number of decisions with respect to the application of Statements of Principles. Particularly, the Court reviewed the application of former decisions of the Federal Court most notably Repatriation Commission v Keeley 2000 98 FCR 108. Heerey J, being one of the Full Court Judges in Gorton decided at paragraphs 42 and 43 as follows-
"Consistently with Keeley can a later SoP nevertheless apply?
I have framed the question in this way because in my view the problem does not involve any question of election on the part of a claimant. Rather the system operates in the following way. Assume an SoP in force at the time of the claim is revoked by another SoP which is in force at the time of the AAT decision. The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which "is in force": s120A(3): see s43 AAT Act. If the current SoP "upholds" the claimant's hypothesis then the AAT moves, pursuant to s120(1), to consider whether it has been disproved beyond reasonable doubt.
If however the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he/she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s.120(1)."
Throughout the assessment period the only Statement of Principle in force with respect to lumbar spondylosis was Instrument No. 27 of 1999. Both representatives agree that this is so and Mr DeMarchi on behalf of the applicant submitted that the applicable factor was 5(h) namely
"suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; …….".
The definition of the words "trauma to the lumbar spine" as those words appear within the above factor are defined at paragraph 8 of the Statement of Principle, as follows-
"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
a) immobilisation of the lumbar spine by splinting, or similar external agent; or
b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
c) surgery to the lumbar spine".
Both representatives submitted that the applicable Statement of Principles with respect to osteoarthrosis of the left hip was Instrument No. 41 of 1998. Mr Douglas correctly noted that within the assessment period that Instrument was amended by Instrument No. 19 of 1999. However, subsequent to the lodging of the written submissions by both representatives, the Repatriation Medical Authority on 9 October 2001 issued another Statement of Principle with respect to osteoarthrosis namely Instrument No. 81 of 2001. Mr De Marchi submitted that the applicable factor under Instrument No. 41 of 1998 was factor 5(j) namely "suffering a trauma to a joint before the clinical onset of osteoarthrosis in that joint: …….".
In that Instrument the words "trauma to a joint" are defined in paragraph 8 as follows-
"trauma to a joint means a discrete joint injury that causes the development within 24 hours of the injury being sustained of acute symptoms and signs of pain, swelling, tenderness and altered mobility or range of movement of that joint. These acute symptoms and signs must last for a period of at least 7 days immediately after the injury occurs".
Instrument No. 41 of 1998 was issued on 29 June 1998. The applicant's claim and the primary decision of the respondent were both made in October 1999. Instrument No. 19 of 1999 which was issued on 14 January 1999 amended Instrument No. 41 of 1998 only insofar as it substituted a new definition of the words "trauma to a joint". It follows that the substituted definition of "trauma to a joint" was in force at the commencement of the assessment period. The amended definition as found in Instrument No. 19 of 1999 reads as follows-
"trauma to a joint" means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least 7 days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint;".

Instrument No. 81 of 2001 revoked Instrument No 41 of 1998 and Instrument No. 19 of 1999. It contains an altered factor 5(j) namely-
"suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint; or …….".
Accordingly, the Instrument 'in force' at the time of the hearing was No 81 of 2001. It is identical to the only other applicable Instrument during the assessment period, namely No. 19 of 1999 except the most recent Instrument refers to the 'affected joint'.
Unlike Instrument No 41 of 1998, the two Instruments within the assessment period do not refer to 'acute' symptoms nor to 'swelling'.
Stanley Haig Homewood
In evidence Mr Homewood said that in about 1941 or 1942 he suffered injury when he fell from a truck when stationed at Williamstown in Victoria. In giving his evidence he referred to his Statement dated 23 October 2000. Mr Homewood said that he fell onto his left hip and his back. He said his hip was fractured and subsequently it was x-rayed. He said his spine was also bruised. Mr Homewood recalled then suffering immediate pain in his left hip and back. When pressed on this issue he also recalled having pain in his knees. Mr Homewood recalled that he attended a Regimental Aid Post where his knees and back were massaged and was given pain relieving tablets. Thereafter he said he had back and hip pain for the remainder of the 3 ½ years of his enlistment. He described the pain as being like a toothache, which interfered with his sleep and was worsened upon walking. Later when he was transferred to Queensland, prior to departure for New Guinea, Mr Homewood said that he was hospitalised at both Brisbane and in Townsville.
After discharge Mr Homewood said that he continued to suffer back and hip pain.
In cross-examination Mr Homewood was taken by Mr Douglass to some medical records found at pages 10 and 11 of the T-documents. Because of the absence of a documented history of treatment with respect to back or hip injuries, Mr Homewood explained that the doctors "didn't know about it" but was adamant that he was hospitalised because of back pain. He also denied having had x-rays despite the reports of x-ray found at pages 12 and 13 of the T-documents.
Mr Homewood said that he complained to his General Practitioner after he was discharged from service and said that it was explained to him that "everyone gets back pain when they get older". At that time Mr Homewood was 25 years of age.
Mr Homewood was also taken to a medical report completed by a "Medical Board" (the date is unclear but it appeared at pages 15 and 16 of the T documents). When Mr Homewood was acquainted with the contents namely that there was a reference to a recurrent dislocation of his right knee, the cause of which was described as being "weak ankles", Mr Homewood said that it "was smeared over - there was nothing wrong with my ankles at all". Again he was adamant that he had back and hip pain but could not explain why the report of the Medical Board containing the above contents was also signed by him. He said that all "signatures are copyrighted - every signature is the same".
Mr Homewood denied that he slipped when attempting to climb into a truck as was reported at page 17 of the T-documents (being the suspected cause of right knee injury) and when referred to a "medical examination for reclassification" found at page 19 and dated 22 June 1944 referring only to knee injury, Mr Homewood said that "they didn't want to know about my back. I had a fractured hip. Pain was taken away by painkillers". Mr Homewood was unable to explain why the members of the medical panel "didn't want to know" about his back and hip injuries. Thereafter Mr Homewood was taken to a number of documents, which did not contain references to his back and hip injuries. He denied attending the places where treatment is recorded to have been provided.
Mr Homewood said that he was ultimately given a B classification but denied that it was because of his knee injuries and was adamant that it was because of his back injury. He was unable to explain why there was an absence of medical information recording the altered classification by reference to his back injury and could not also explain why he did not (apparently) have treatment or complain to his doctors after discharge concerning his back injury. He said a report completed by him found at page 41 recording that the symptoms of osteoarthrosis of his left hip were first noticed when he returned to Australia could be explained by him "probably being drunk" at the time he completed the report. Mr Homewood denied a statement apparently written by him found at page 78 of the T-documents and dated 28 March 2000 recording injury to his right hip and spine as a result of falling from the truck. He was adamant that he suffered left hip injury and explained that "half of the evidence is pre fabricated". He was sure that he suffered left hip injury at the time he fell from the truck because the left hip was ultimately replaced by surgery in 1990 and not the right hip.
It occurred to Dr Re and myself, subsequent to hearing the evidence of Mr Homewood, that consideration should be given to whether any back and/or hip injuries were associated with any limp that he may have had by reason of his obvious knee injuries. Arrangement were subsequently made by Mr De Marchi to have the applicant examined by Mr Roger Coates, his treating orthopaedic surgeon in Shepparton to consider this and assessment and entitlement issues. Mr Coates did not comment upon the association, if any, between the applicant's limping and his back and hip injuries. Additionally we were concerned, having regard to the unusual and animated manner in which Mr Homewood gave his evidence, that enquiries should be made from his treating general practitioner whether he suffered from either dementia or an emotional disorder. The report was subsequently received and filed with the Tribunal from Mr Coates and it will be referred to later. A report was also received from Dr Chan. He has treated Mr Homewood for many years and has never diagnosed dementia. Mrs Homewood lodged a written statement on 30 March (2 weeks after the hearing). In her statement she has recorded, in part, that she was present when her husband gave evidence. (The evidence of Mr Homewood was received by telephone). She said he was then very agitated and upset and she was "counselling him to steady himself". She reported that he was "not giving a very rational account of his history". She also reports that Mr Homewood "is a very nervous person and becomes agitated easily".
The Documents
In a "medical examination prior to discharge" found at page 8 of the T-documents and dated 27 August 1945 the only injuries recorded were a "slipped cartilage (R knee)" and described as having occurred in February 1942 at the Williamstown camp. In another part of the form the applicant has recorded that he suffered a right knee injury at football prior to joining the army. This document is signed by the applicant. ("Prior" right knee injury is not recorded in the medical examination prior to enlistment - p.5). The clinical examination prior to discharge at Royal Park on 27 August 1945 records left and right knee injuries only.
The records of the applicant's treatment in hospital in 1943 are found at pages 10 to 13 inclusive. On 16 April 1943 the applicant is recorded as having been admitted for a period of 9 days for the condition of "recurrent dislocation of right patella". The injury is recorded as having occurred "in about February 1942" when he fell from a truck. Specifically the notes record "the main worry of this man is not the dislocation of his patella which only occurs at infrequent intervals but the aching that occurs in his knee with much standing or walking". There is no reference in those notes to any back or hip injuries. X-rays taken on 9 and 12 April 1943 - pages 12 and 13 - were of the right and left knee only.
At page 14 of the T-documents the respondent has provided a document entitled "sick report" which is dated 22 or 23 May 1945. Having regard to either of those dates and to the service and casualty form found at page 3 of the T-documents, the applicant was then stationed at Royal Park in Victoria. Under the heading of "diseases" the word "back ache" appears.
A document found at pages 15 and 16 of the T-documents is a report of the AMF Medical Board. The date of the examination is not clear but it would appear to be in 1943 and have been undertaken in Queensland. The disability then assessed was "recurring dislocation of right knee cap" said to be because of "weak ankles". Another part of the form records the hospitals for which this condition had been treated and the dates of treatment. The entry records treatment at hospitals on 29 March 1943 and 9 May 1943. At 9 May it would appear that the applicant was then in Queensland because he was then assessed for an altered classification by a doctor who has described himself as being attached to the "Q'LD line of command headquaters". The results of that examination are found at pages 17 and 18 but refer only to right knee injury, pain in the knee after walking and a suspicion of the likelihood of left knee dislocation. The applicant was reclassified to class B however there is no reference by these documents to any back and hip injuries. Another examination conducted on 25 June 1944 with respect to the applicant's reclassification has reference only to right knee injuries. The cause of that injury is said to have been by reason of the applicant having fallen from a truck (p. 19).
A summary of the applicant's medical history between enlistment and discharge is found at page 6 of the T-documents. The injuries described as having been treated at a number of different locations are rubella, upper respiratory tract infection, and recurring dislocation of right patella.
At pages 20-23 inclusive of the T-documents is a report of a medical examination of the applicant conducted on 11 March 1982. The purpose of the assessment (by the respondent) is not clear but the disabilities then claimed to have been related to service were "disability to knee, disability to back, blood pressure". At the date of this examination the respondent had accepted that Mr Homewood had suffered osteoarthritis of his knees by his service. It is noted that on 14 May 1982 the claims made for osteoarthritis of the hips and spondylosis of thoracic and lumbar spine and hypertension were rejected. It is assumed that this medical examination was a prelude to those decisions.
In addition to a history of right knee injury, the medical officer has recorded with respect to the applicant's back "11 Y on and off - bending or lifting - type of stitch in back and goes down right leg: no injury known: if walk with limp put pressure on back". There is also a reference of "not in hosp for back pain".
The "provisional diagnosis" made by the medical officer was of osteoarthritis of knees, osteoarthritis of hips, spondylosis of lumbar and thoracic spine and hypertension. (I suspect that one of the pages of this examination is missing because there is no reference in the examination or in the history taken to hip injuries however there has been a diagnosis made of osteoarthritis of the applicant's hips. I also note that the applicant did not claim hip injuries as being related to service prior to that examination).

At page 24 of the T-documents is a typed copy of a report referring to the report of an 'orthopaedist' dated 11 March 1982. That report does not seem to be part of the T-documents yet it records with respect to the applicant's back that he gave a history of "no injuries or accidents. First pain 6 years ago, gradual onset. Intermittent: brought on by walking, lifting quick turning". Another entry records "ten years intermittent burning prolonged standing". There is a reference to the applicant suffering "pain in knee intermittent since 1940". An x-ray report records the presence of degenerative changes at the thoracic and lumbar spines and osteoarthritis of the applicant's hips. The diagnosis then made was of thoracic and lumbar spondylosis, and osteoarthritis of the hips and knees.
On 4 May 1993 the applicant was in receipt of 50% of general rate pension for his accepted knee injuries. Mr Homewood then made an application for an increase in pension (which was subsequently approved and pension was increased to 70% of the General Rate). The injuries claimed as war-caused disabilities were recorded by Mr Homewood as "damaged right knee joint". There is no reference in the application to hip or back injuries.
In September 1999 Mr Homewood claimed osteoarthritis of his hips and lumbar spondylosis. A medical form completed by Dr Chan and Mr Homewood recites the hip and back injuries as having originated from a fall from a motor vehicle at the Williamstown camp. The medical form was attached to the claim form.
In a form found at page 39 where Mr Homewood was asked to describe when the symptoms of osteoarthrosis of right hip were first noticed he recorded 'when I applied for pension and was x-rayed at Melbourne medical unit'. In a form at page 41 where he is asked "When were the symptoms of osteoarthrosis of left hip first noticed", he recorded "when I returned to Australia. The local doctor told me everybody gets pain in back with age - approximately 1947". In the same form when asked to describe how the injury occurred, Mr Homewood recorded "getting into Army Transport and it started before I was on board. I was tipped out on my back and hurt my leg and hip".
In a form found at page 44 of the T-documents with respect to the lumbar spondylosis the applicant is asked "when were the symptoms of lumbar spondylosis first noticed". He responded "by my local doctor when I returned to Shepparton". The injury is described as having occurred after falling from an army vehicle and in another part of the form where Mr Homewood was asked "how soon after the injuries did the symptoms begin" he responded "immediately".
Doctor Chan recorded in his part of the 1999 application that the trauma to the applicant's right hip, left hip and lumbar spondylosis occurred in 1940-1941 as a consequence of falling from a truck. He recorded that the applicant has been in pain since that episode.
On 29 September 1988 Mr Homewood was referred to Mr Marx, a physiotherapist in Shepparton. The "subject assessment" as recorded by Mr Marx was of the applicant "complaining of left sided back and leg pain - insidious onset". The condition then being treated was described as "left sciatica". The applicant was subsequently treated on 10 occasions over a period of six weeks and it is recorded "discharged from treatment. Pain free range of movement". In his report of 12 July 2001 Mr Coates recorded that the applicant was "quite specific that the pain in his back never resolved and he continued to experience pain about the left hip". In his opinion Mr Coates said that the applicant had given him a history of back and left hip injury during his military service and he (Mr Coates) would expect that his medical records would contain documentation with regard to this particularly as he was admitted to hospital". Mr Coates found clinical and x-ray evidence of degenerative changes affecting the applicant's lumbar spine since 1988. The applicant in fact underwent total left hip replacement in 1990, which was performed by Mr Coates. He could not find any connection between service and right hip pain.
When Mr Homewood was before the Veterans Review Board he was asked questions in relation to the onset of back and hip pain. He was taken to his statement made on 28 March 2000 (found at page 78 of the T-documents where he described falling from the truck onto his right hip and spine). Mr Homewood told the members of the VRB that his "knee buckled" and he hit the ground with a "thump. Actually it injured my left hip more than it did my right hip". Later in his evidence Mr Homewood said that his "main injury" at the time of the fall was his left hip. He said he attended a regimental aid post at Williamstown and was given some aspro tablets and massage.
In response to further questions from the VRB members with respect to the applicant's hospitalisation in Queensland, Mr Homewood said that he had treatment for his back and knee. He said "the back mostly started to get bad when I got up there". My back started to - go on me but they never said what it was. They never said that you've got an injury or anything at all. They never said a word - nothing". When he was asked to clarify whether he was being treated for his back or his hips or his knees in Queensland Mr Homewood said "yes, well, the hip actually - well, I don't know where the pain was coming from. All I know it was in my back - whether me hip was causing it or my spine was causing it, I don't know and they never told me at all - never said a word - the pain got worse and when I got to New Guinea it was worse still - got worse and worse as I got up there".
When Mr Homewood was taken to the notes of his hospital treatment in Queensland in 1943 by one of the VRB Members where it was suggested that there was no reference to back or hip injuries, Mr Homewood replied "no, well, how could I tell them there was something wrong when I didn't know? nobody told me that you've hurt your spine or hurt your hip. Nobody said anything at all to me. Nowhere, no hospital, no nothing".
Conclusion & Reasons For Decision
At the commencement of the hearing the applicant withdrew his claim for right hip osteoarthrosis. There was no application before this Tribunal with respect to hypertension, it not having been determined by the Veteran's Review Board. The injuries remaining for review were the applicant's lumbar spondylosis and left hip osteoarthrosis.
Although there are two differing Statements of Principles there is a commonality to the extent that each relevant factor requires an analysis of the definition of "trauma to a joint" (lumbar spondylosis) and "trauma to the affected joint" (osteoarthrosis). Whilst the words "acute" and "swelling" do not appear in the osteoarthrosis Statement of Principles, the common feature for analysis is whether the veteran suffered a "discrete joint injury" which caused symptoms and signs of pain and tenderness and either altered mobility or range of movement of the joint within 24 hours of the injury being sustained.
A Full Federal Court in Repatriation Commission v Deledio 1998 49 ALD 193 at 206 found that there were four stages that needed to be undertaken in order to determine whether a reasonable hypothesis exists.
At stage one the Tribunal must consider all the material before it and determine whether the material points to a hypothesis connecting the injury with the circumstances of service. There is no need at this stage to make any finding of fact.
To the extent that a hypothesis is no more than a proposal or an explanation for the occurrence of some specified group of phenomena or a proposition assumed as a premise (refer Macquarie Dictionary) the applicant at this stage has raised an hypothesis with respect to each injury. It is put no higher than an assertion of connection between service and resultant injury (Refer analysis of 'hypothesis' in Repatriation Commission v Flynn 2001 60 ALD 453 at 461 & 462).
Being satisfied that the material does raise a hypothesis and that there are applicable Statements of Principles, I am accordingly satisfied that stage 2 of Deledio is also satisfied.
However for the reasons that follow I am not satisfied that the hypothesis raised is "reasonable" (as discussed at stage 3 of Deledio).
The Full Court decided that only if the hypothesis fits or is consistent with the "template" found within the Statement of Principle can it be regarded as being reasonable. The hypothesis must contain one or more of the factors that the Repatriation Medical Authority has determined to be the minimum that must exist and be related to service. If the hypothesis satisfies the Statement of Principle by meeting the factors it cannot be said to be contrary to known or proved scientific fact nor fanciful.
The significant feature in my view of the material raised by this review is that on the one hand the applicant said in evidence (and at the VRB) that he suffered back and hip injuries when he fell at Williamstown in 1942. I do not believe that there is any doubt that that incident gave rise to knee injuries which have subsequently been accepted by the respondent as war-caused. The applicant said then that he suffered back and hip pain and that he suffered it for the remainder of his service and subsequently as a civilian. Indeed he pointed to the left hip replacement in 1990 as being a consequence of the fall in 1942.
On the other hand there is almost a total absence of any documentation with respect to complaint or treatment of the hip and back injuries within service despite many periods of hospitalisation and many attendances upon doctors.
Even allowing for imperfections of memory, adopting a beneficial approach to the implementation of the Veterans Entitlement's Act and giving the applicant credit for being stoic, there is no material at all which points to - with respect to either injury - of a discrete joint injury causing symptoms and signs of pain, tenderness and altered mobility or range of movement within 24 hours of the injuries having been sustained. Additionally there is no material, which points to the symptoms and signs lasting for a period of at least 7 days immediately after the injury occurs.
In the interpretation of the above definitions I am mindful of the decision of Merkel J in Arnott v Repatriation Commission 2001 FCA 262 where the word "acute" was discussed. Additionally, I am satisfied that the words "a period of at least 7 days" means a continuous period of 7 days as opposed to symptoms manifesting on a number of occasions which in total amount to seven days.
It is not clear from the above, I am unable to find that the hypothesis advanced by the applicant is 'reasonable' under the Instrument in force at this time or any earlier Instrument within the assessment period.
In all of the circumstances I am obliged to find that the decision under review is affirmed.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         .........Carolyn Irons.........................
  Secretary
Date/s of Hearing  16 March 2001
Date of Decision  5 December 2001
Counsel for the Applicant        Mr D. DeMarchi
Solicitor for the Applicant
Counsel for the Respondent    Mr R. Douglass
Solicitor for the Respondent