Howard v Repatriation Commission
[1999] FCA 1030
•30 JULY 1999
FEDERAL COURT OF AUSTRALIA
Howard v Repatriation Commission [1999] FCA 1030
VETERANS ‑ Disability pension ‑ Statements of Principles ‑ Claim for post traumatic stress disorder as a result of “experiencing a stressor” during service ‑ Claim for hypertension resulting from psychoactive substance abuse or dependence, which developed as a result of “experiencing a stressful event” during service ‑ Whether Tribunal erred in failing to consider hypertension claim ‑ Whether hypothesis linking post traumatic stress disorder with veteran’s service ‑ Whether hypothesis “consistent with” Statement of Principles for post traumatic stress disorder
Veterans’ Entitlements Act 1986 ss 120, 120A, 196B
Delediov Repatriation Commission (1997) 47 ALD 261 applied
Repatriation Commission v Deledio (1998) 27 AAR 144 appliedMcKenna v Repatriation Commission (1999) 86 FCR 143 cited
Repatriation Commission v Law (1980) 31 ALR 140 citedDAVID GEORGE HOWARD v REPATRIATION COMMISSION
VG 561 OF 1998SUNDBERG J
30 JULY 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 561 OF 1998
BETWEEN:
DAVID GEORGE HOWARD
ApplicantAND:
REPATRIATION COMMISSION
Respondent
JUDGE:
SUNDBERG J
DATE OF ORDER:
30 JULY 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The matter be remitted to the Administrative Appeals Tribunal to be determined according to law.
3.The respondent pay the applicant’s costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 561 OF 1998
BETWEEN:
DAVID GEORGE HOWARD
ApplicantAND:
REPATRIATION COMMISSION
Respondent
JUDGE:
SUNDBERG J
DATE:
30 JULY 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BACKGROUND FACTS
The respondent decided that the applicant’s generalised anxiety disorder and hypertension were not war‑caused for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”). The decision was affirmed on review by the Veterans’ Review Board. The Board’s decision was in turn affirmed by the Veterans’ Appeals Division of the Administrative Appeals Tribunal. At some stage the diagnosis of “generalised anxiety disorder” was changed to “post traumatic stress disorder”, and the matter appears to have proceeded on that basis before the Board and the Tribunal. The applicant has appealed to the Court from the Tribunal’s decision.
THE LEGISLATION
Section 120(1) of the Act provides:
“Where a claim under Part 11 for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
Sub‑section (3) provides in part:
“In applying subsection (1) … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury …;
(b)that the disease was a war‑caused disease …; or
(c)that the death was war‑caused …;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”
Section 120A modifies the operation of s 120 in relation to claims made after 1 June 1994. Section 120A(3) provides:
“For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) …
…
that upholds the hypothesis.”
The Repatriation Medical Authority is established by s 196A. Its functions are set out in s 196B. Section 196B(2) provides in part:
“If the Authority is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans …
…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
Section 196B(14)(b) provides that a factor causing or contributing to an injury, disease or death is related to service rendered by a person if “it arose out of, or was attributable to, that service”.
In Repatriation Commission v Deledio (1998) 27 AAR 144 at 159‑160 a Full Court set out the steps that ss 120 and 120A require the Tribunal to take in relation to a claim lodged under Part II of the Act for a pension arising out of operational service rendered by a veteran. The first three steps are 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 s 196B(2) ….
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will [be] 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 …. 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.”
The Full Court approved (at 158) the following passage from the decision of the primary judge reported at (1997) 47 ALD 261 at 275:
“it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical‑scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis.
…
Therefore when s 196B(2) says a factor ‘must … exist’ and ‘must be related to service’, it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). … The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i)contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.”
In McKenna v Repatriation Commission (1999) 86 FCR 143 a Full Court held that s 120A(3) permits a hypothesis to be upheld by more than one Statement of Principle (“SoP”), and in such a case, the hypothesis must be upheld by each relevant SoP.
THE SOPs
Instrument No 15 of 1994 is the SoP concerning Post Traumatic Stress Disorder (“PTSD”). Clause 1 lists the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of operational service. The factor relied on by the applicant is that in par (a) – “experiencing a stressor prior to the clinical onset of post traumatic stress disorder”. The expression “experiencing a stressor” is defined in clause 4 as
“(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s, or other people’s, physical integrity; and
(b)the person’s response to that event involved intense fear, helplessness or horror.”
Instrument No 5 of 1994 is the SoP concerning Psychoactive Substance Abuse or Dependence (“PSAD”). Clause 1 lists the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PSAD with the circumstances of operational service. The factor relied on by the applicant is that in par 1(a) – “experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post service”. The expression “stressful event” is defined in clause 4 as
“an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.”
The expression “psychoactive substance abuse or dependence” is defined as
“a maladaptive pattern of use, attracting ICD code 803 or 804, that is indicated by either –
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example driving while intoxicated).”
Instrument No 83 of 1995 is the SoP concerning Hypertension. Clause 1 lists the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the hypertension with the circumstances of operational service. The factor relied on by the applicant is that in clause 1(b) – “suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension”. The expression “psychoactive substance abuse” is not defined, though there is a definition of the expression “psychoactive substance abuse or dependence” which is substantially the same as that used in Instrument No 5 of 1994.
EVIDENCE BEFORE THE TRIBUNAL
The applicant was born in 1940. He enlisted in the Royal Australian Navy in April 1958 and was discharged in 1967. He saw operational service as an able seaman/fireman on HMAS Sydney between 27 May and 26 June 1965 and between 14 September and 20 October 1965. On two occasions the applicant was on board when Sydney delivered to Saigon equipment and stores for Australian ground troops in Vietnam. Sydney’s cargo was unloaded in Saigon harbour. On the first occasion the unloading took four days. During this time Sydney was within sight of land, and the applicant believed the ship was at risk of attack. He became aware that the Viet Cong were releasing mines which were intended to float towards the ship. He was told that the Viet Cong had divers who could attach mines to the underside of ships. The applicant said he was in fear of a mine exploding. From time to time Sydney dropped charges into the water to deter divers approaching. The applicant said charges were going off all the time while the ship was at anchor. He could not recall Sydney firing upon enemy troops, but the ship was stationed only 1000 metres off shore, and United States helicopters were strafing the shoreline which was visible from the ship. He was in fear throughout the four days at anchor, especially when he was on deck and when he was on his own.
When the applicant returned to Australia, instead of going home to his wife, whom he had married shortly before he first went to Vietnam, he stayed at a hotel in Sydney for some days and got drunk. He had consumed little alcohol before his time in Saigon. After his return he smoked many more cigarettes than he had before he left.
The applicant sailed to Vietnam again on 14 September 1995. This time Sydney was unloaded in three days. He said there was heavier air activity around Saigon harbour than on the earlier visit. Again he was fearful of underwater activity by Viet Cong divers, and charges were again dropped overboard to deter them. Mines were still being released by the Viet Cong. The applicant said the second voyage was much more stressful than the first. The ship’s capacity to defend itself was limited because it was fitted with only four Bofors guns, which he said were outdated.
The applicant said he sleeps poorly and often wakes at night sweating. He avoids discussion of his service and has avoided the RSL and other service institutions. The applicant was questioned about a motor vehicle accident which occurred in May 1966 in which he suffered severe facial lacerations which required thirty two stitches. He agreed that the stitches had been removed too early, which caused him pain and required further stitches.
The applicant’s wife confirmed that he had come home drunk after his return from the first voyage. She noted that he became angry and was unable to sleep, and sweated profusely. He was “ten times worse” after the second voyage. His moods were volatile. He was quite different from the person she married. He reacts adversely to noise, and when he is angry he punches doors and walls. He shakes, wrestles, fights, thrashes and sweats profusely in his sleep. Sudden noises upset him.
Mr Trevor Corran, a clinical psychologist who had treated the applicant, gave evidence that the applicant’s two visits to Vietnam provided a connection with the subsequent diagnosis of PTSD. He agreed that motor car accidents can be responsible for PTSD, but dismissed any connection between the applicant’s accident and the PTSD. He said that although the applicant had been on board Sydney for relatively short periods, the shelling and firing described by the applicant would be enough to create a perception of fear and threat and precipitate the eventual condition of PTSD.
Dr Lester Walton, a consultant psychiatrist, gave evidence on behalf of the respondent. He was of the opinion that the applicant suffers from PTSD, but regarded the accident as the most significant event leading to the PTSD because of the facial lacerations and scarring and consequent social embarrassment incident upon it. Dr Walton had mistakenly thought the accident occurred between the applicant’s two visits to Vietnam, but when this was pointed out nevertheless maintained his opinion. He was of the view that the applicant did not suffer “serious stressors” by reason of his Vietnam experiences.
TRIBUNAL’S REASONING
It was common ground before the Tribunal that the applicant suffered PTSD, but the respondent contended that the applicant had not experienced a stressor within the meaning of the PTSD SoP. The respondent also argued that the applicant had not suffered a “stressful event” within clause 1(a) of the PSAD SoP. It was conceded that the applicant suffered hypertension, but it was claimed that it had not been shown that he suffered from “psychoactive substance abuse or dependence” as defined in the Hypertension SoP.
The Tribunal said that the parties had agreed that the applicant’s case depended entirely on whether he satisfied factor (a) in clause 1 of the PTSD SoP (“factor (a)”), and that the hearing proceeded on that basis. In explanation of this the Tribunal said:
“The applicant submitted that he satisfied (in establishing his reasonable hypothesis) the concept envisaged by the definition of ‘experiencing a stressor’ as it appears at paragraph 4 and as that phrase appears in factor 1(a) of [the PTSD] Instrument. For our part we would be satisfied that that definiton is far more onerous than ‘stressful event’ as it appears in Instrument No 5 of 1994. That is to say, if we were satisfied that the applicant was ‘experiencing a stressor prior to the clinical onset of post‑traumatic stress disorder’ that he would have suffered a ‘stressful event’.”
I understand the last sentence to mean that if the Tribunal was satisfied that the applicant had “experienced a stressor”, it would necessarily be satisfied that he had suffered a “stressful event”.
According to the Tribunal, the hypothesis advanced by the applicant was that he was at risk of injury or death as a result of enemy activity in Vietnam. After noting the various aspects of the evidence relied on by the applicant, the Tribunal said:
“It has to be acknowledged however … that … he did not confront, at any time, enemy forces nor were any explosive devices ever detonated by the enemy, nor indeed is there any evidence that he ever fired a single round from his own rifle. There was an episode as the applicant recalled of a grenade being located at or near the rudder of his ship but it did not explode. … Whilst he was aware of strafing on shore, he did not observe enemy forces and whilst he heard the release of a five inch mortar from Preston located approximately 1000 metres away, he did not observe it land on shore. His vessel was not fired upon nor did it fire upon any other person or vessel. On the applicant’s evidence he was in Saigon harbour for a total 7 days over 2 different voyages. On the respondent’s evidence it was 5 days. On all the material before us, we cannot conclude that it points to a hypothesis, which is reasonable, connecting the operational service with PTSD.”
The Tribunal went on to say that if it was wrong in rejecting the applicant’s hypothesis, it would not have been satisfied that the hypothesis was consistent with or upheld by an applicable SoP. It said:
“Although the language of the definition of ‘experiencing a stressor’ is clearly subjective and requires an analysis of a veteran’s own perceptions … the criteria within the definition does not apply. That is to say, there is nothing open to us to find that Mr Howard experienced, witnessed or confronted an event that involved actual or threatened death or serious injury or a threat to his or another person’s physical integrity and to or from which his response involved intense fear, helplessness or horror.”
THE APPLICANT’S CASE ON APPEAL
The applicant’s case on appeal can be summarized as follows:
(a)In saying that the applicant’s case depended entirely on whether he satisfied factor (a) the Tribunal misunderstood the way his case was put. It is true that if factor (a) was satisfied, the relevant factor in the Hypertension SoP would also be met. But if factor (a) was not met, the Tribunal would need to consider whether the Hypertension factor was met. Since it was not satisfied about factor (a), it was obliged to consider the Hypertension factor, but failed to do so.
(b)The Tribunal wrongly imposed an onus on the applicant to show that he satisfied factor (a).
(c)The Tribunal failed to observe that a factor contained in a SoP is related to service rendered by a veteran if it “arose out of, or was attributable to, that service”. The question was whether the war service was one of the causes of the relevant factor.
(d)In rejecting the applicant’s hypothesis, the Tribunal ignored the evidence of Mr Corran. The question was whether there was some credible medical evidence which supported the hypothesis. The Tribunal misunderstood its role in implicitly rejecting Mr Corran’s evidence and implicitly accepting Dr Walton’s.
(e)The Tribunal did not apply ss 120 and 120A in accordance with Deledio.
(f)The Tribunal’s reasons do not identify why the applicant did not satisfy factor (a). The Tribunal is obliged to expose its reasoning so as to enable a party to determine whether an error of law has been made.
Tribunal’s misunderstanding
The respondent accepts that the Tribunal failed to ask the question posed by the PSAD SoP, namely whether the applicant had “experienced a stressful event”, and thereby made an error of law. It was conceded that the matter must be remitted to the Tribunal for determination of this question. The Tribunal’s error is perhaps understandable. Counsel for the applicant told the Tribunal that “everything depends upon the SoP in relation to PTSD”, and later, after saying that he would not “go into the hypertension … because it follows the same way via the mechanism of psychoactive substance abuse”, affirmed that “The whole linchpin of issue in this case revolves around PTSD”. Parts of the submissions of counsel for the respondent are equivocal, but at one stage she agreed with a statement by the Tribunal that if the applicant could not satisfy factor (a), he could not satisfy the Hypertension or PSAD SoPs.
Deledio step one
In par 70 of its reasons the Tribunal said it was unable to conclude that the material before it “points to a hypothesis, which is reasonable, connecting the operational service with PTSD”. In the next sentence (with which par 71 commences) the Tribunal said that if a hypothesis did exist, it would be obliged by Deledio to ascertain whether there was a SoP and whether the hypothesis was consistent with or upheld by the SoP. Read together these passages strongly suggest that in the par 70 sentence the words “which is reasonable” were inserted in error. The Tribunal had set out the four Deledio steps, and clearly had them in mind in the passages referred to. That the Tribunal was purporting in par 70 to deal with Deledio step one is made clear by its reference to steps two and three, which it said would need to be considered “if a hypothesis does exist”. For those reasons I am unable to accept the respondent’s submission that the words “which is reasonable” in the par 70 sentence show that the Tribunal was at that stage dealing with Deledio step three.
The Tribunal did not spell out the elements of the hypothesis advanced by the applicant. However, it appears from the applicant’s evidence, read in conjunction with Mr Corran’s report of 15 December 1997, that it was based on factor (a) together with the definition of “experiencing a stressor”. In his report Mr Corran described the applicant’s account of his time on Sydney, which substantially accords with the applicant’s evidence before the Tribunal. Mr Corran then set out the definition, and expressed the view that the applicant’s experience satisfied its elements. Mr Corran was of course seeking to demonstrate that those elements were in fact satisfied. But it is clear that what he was concerned to “prove” was a hypothesis that the applicant’s PTSD was related to his service in Vietnam because he had experienced events that involved the threat of injury which provoked a feeling of intense fear.
In concluding that the material before it did not point to a hypothesis connecting the applicant’s operational service with PTSD, the Tribunal did not mention Mr Corran’s evidence which supported the hypothesis. It was an expert opinion, and the Tribunal was not, at this stage of its inquiry, entitled to reject or ignore it. As the Full Court said in Deledio, no question of fact finding arises in step one.
The Tribunal made an error of law in its application of Deledio step one in that it required the hypothesis the subject of that step to be a reasonable one. Whether the hypothesis is reasonable does not arise at that stage. Although counsel for the respondent did not accept that in par 70 of its reasons the Tribunal was dealing with step one, he conceded that if it was, it erred in concluding that the whole of the material did not point to a hypothesis connecting the operational service with PTSD.
Onus of proof
In support of the contention that the Tribunal had placed an onus on the applicant, reference was made to three paragraphs of its reasons. In two of them the Tribunal uses entirely neutral language, devoid of any suggestion that the applicant had to prove or satisfy the Tribunal about anything. The third paragraph, to which reference has already been made, records the parties’ agreement that the applicant’s case “would rise or fall upon him establishing a reasonable hypothesis that was consistent with or upheld by” the relevant SoP. That might suggest an onus, but the balance of the paragraph is expressed in language consistent with the fact that the Tribunal is an inquisitorial body, that the parties do not have to satisfy it about anything, and that the question is whether the Tribunal has satisfied itself about the matters committed to it. Thus, the Tribunal said ‑ “if we were satisfied that the applicant was ‘experiencing a stressor …’. And again ‑ “the hearing proceeded entirely on whether the applicant satisfied factor 1(a) …”. As the Full Court said in Deledio at 157, a full reading of the decision‑maker’s reasons may disclose a proper approach to its function, even though it has used terminology more appropriate to the legal process. That is the case here. Counsel for the applicant did not pursue the onus submission in his oral argument.
“attributable to” – s 196B(14)(b)
Three paragraphs of the Tribunal’s reasons were pointed to as showing that it had overlooked that a factor contained in a SoP is related to operational service if “it arose out of or was attributable to, that service”. On examination, the paragraphs do not contain any reasoning on the part of the Tribunal, but are a summary of the evidence of three of the witnesses. Reference was made to the discussion in the Full Court in Repatriation Commission v Law (1980) 31 ALR 140 at 151 of the phrase “attributable to”, and it was submitted that the Tribunal had insisted upon it being established that the applicant’s operational service be the sole cause of the existence of factor (a). But the Tribunal did not do that. Its conclusion was that there was nothing in the material before it that would enable it to find that the applicant experienced, witnessed or was confronted with an event of the type described in the definition of PTSD. That is not the language of “sole cause”. Counsel for the applicant did not pursue this submission in oral argument.
Deledio step three
The Tribunal assumed, contrary to its own opinion, that the material before it pointed to a hypothesis connecting the PTSD with the applicant’s service, and entered upon Deledio step three. The Tribunal asked itself the correct question – was the hypothesis “consistent with or upheld by” the SoP. What is involved in answering such a question is shown by the facts of Deledio. In that case the four components of the hypothesis were spelt out. The only one relevant to the applicable SoP was that the veteran’s disease – “can be caused by animal fat consumption increasing by at least 40% and to at least 70 gm/day for at least 20 years before the clinical onset of the disease”. The relevant part of the SoP was “increasing animal fat consumption by at least 40% and to at least 70 gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate”. The hypothesis clearly fitted the template. What step three involves is a comparison of the hypothesis and the template. If they are consistent, the SoP upholds the hypothesis. Counsel were agreed that this was what was involved in step three. The respondent’s counsel put it in this way: “Once a hypothesis has been identified, one asks whether that hypothesis, which consists of a number of elements, contains the elements which are prescribed by the SoP. If it does, then it is a reasonable hypothesis. If it does not, it is not a reasonable hypothesis”. In my view that is the correct approach. Counsel differed as to whether that is what the Tribunal had done. For the respondent it was submitted that in par 71 the Tribunal was not determining whether the applicant suffered an experience and a response of the type required by factor (a), but was asking whether the hypothesis included these elements. I do not think that it is fair reading of par 71. Although the opening lines of the paragraph lead one to expect that the balance will consist of a comparison of the hypothesis and the elements of the definition, that is not what happens. After observing that the definition invited a subjective inquiry – an analysis of the veteran’s own perceptions – the Tribunal said “the criteria within the definition does not apply”. That must mean that the elements of the definition are not made out. That this is so is made clear by the Tribunal’s explanation of what it meant by “the criteria within the definition does not apply”. There was, in its view, nothing in the material that enabled it to find that the applicant experienced an event that involved actual or threatened death or serious injury or a threat to his or another person’s physical integrity, the response to which was intense fear, helplessness or horror. In my view the Tribunal did not deal with step three in the manner required by Deledio and thereby made an error of law.
Reasons for Tribunal’s conclusions
In view of the conclusion I have reached on Deledio step three, it is not necessary to deal with the submission that the Tribunal did not adequately set out the reasons for its decision on that step.
CONCLUSION
The Tribunal’s decision should be set aside and the matter remitted to it for determination according to law.
I certify that the preceding thirty‑one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate:
Dated: 30 July 1999
Counsel for the Applicant: M J Croyle Solicitor for the Applicant: Peter J Liefman Counsel for the Respondent: P J Hanks Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 July 1999
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