Leary and Repatriation Commission
[2002] AATA 855
•27 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 855
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1763
VETERANS' APPEALS DIVISION )
Re KEVIN JOHN LEARY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member Dr JD Campbell, Member Mr S Webb, Member
Date27 September 2002
PlaceSydney
Decision The Tribunal determines that pursuant to section 43 of the Administrative Appeals TribunalAct 1975 the decision under review be set aside and in substitution therefor decides that: 1. The Applicant's osteochondritis of the costochondral junctions of the left ribs and osteoarthritis of the right knee are war-caused disabilities with effect from and including 6 March 2000; and 2. The matter is remitted to the Respondent for assessment of the correct rate of the Applicant's Disability Pension.
..............................................
Ms SM Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Operational Service – Reasonable Hypothesis - Osteoarthritis – Osteochondritis – Diagnosis – Reasonable Satisfaction – Deficiency in Records - Poor Memory
LEGISLATION
Veterans' Entitlements Act 1986 ss 5D, 9, 13, 14, 119, 120, 120A, 196B
AUTHORITIES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Dell and Repatriation Commission (1986) 9 ALD 596
Repatriation Commission v Bushell (1991) 23 ALD 13
Repatriation Commission v O'Brien (1985) 155 CLR 422
Repatriation Commission v Bey (1997) 79 FCR 364
Owens v Repatriation Commission (1994) 35 ALD 278
Lowerson v Repatriation Commission (1994) 33 ALD 385
Critch v RepatriationCommission (1996) 43 ALD 574
Repatriation Commission v Stares (1996) 66 FCR 594
REASONS FOR DECISION
27 September 2002 Ms SM Bullock, Senior Member Dr JD Campbell, Member Mr S Webb, Member
This is an application for review of a decision of the Veterans' Review Board ("the Board") made on 3 August 2001 (T11) to affirm a decision of the Repatriation Commission ("the Respondent") dated 16 March 2001 (T2) to grant Disability Pension at 20 per cent of the General Rate from 6 March 2000, accepting the claim for chronic solar skin damage and sensorineural hearing loss but refusing the claim for liver damage, hypertension, ischaemic heart disease, osteoarthritis of the right knee, moderate anxiety disorder and bruised rib cartilage.
At the hearing of this matter on 27 August 2002, Mr Leary ("the Applicant") was represented by Mr R Sherlock of the Veterans' Advocacy Service, Legal Aid Commission of New South Wales. The Respondent was represented by Ms P Hook of the Advocacy Section of the Department of Veterans' Affairs.
At the hearing oral evidence was provided by Mr Kevin John Leary. Documents ("T1 - T18") were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and were taken into evidence. Statements of Facts and Contentions were provided by the Applicant, dated 15 July 2002, and the Respondent, dated 19 August 2002. The following documents were tendered and taken into evidence at the hearing:
Exhibit No. Description Date
A1 Statement by Mr K Leary 18 February 2002
A2 Report by Dr D Bornstein 4 June 2002
A3 Report by Dr D Bornstein 24 July 2002
R1 Decision and Reasons by Ms C Stuart, Repatriation Commission 16 March 2001
R2 Service Records for Kevin Leary including Medical History Sheet for Naval Ratings Various
LEGISLATION
A decision in this matter requires consideration of relevant provisions under the Veterans' Entitlements Act 1986 ("the Act").
Section 5D of the Act deals with "injury / disease" definitions.
Section 9 of the Act deals with war-caused injuries or diseases.
Section 13 of the Act deals with eligibility for pension.
Section 14 of the Act deals with claims for pension.
Section 119 of the Act reflects that decision-makers, including this Tribunal, are not bound by technicalities and that decision making under the Act is of an administrative rather than judicial nature. Section 119 allows decision-makers to take into account matters such as the effects of the passage of time, the absence of or deficiency in records and the diminution of a veteran's memory.
10. The standard of proof applying in the case of operational service is the reasonable hypothesis standard, as provided by section 120 of the Act, which provides relevantly:"120Standard of proof
(1)Where a claim under Part II 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.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) 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 or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease;
(c) that the death was war-caused or defence-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.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…"
11. Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority ("the RMA") or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
"120AReasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3)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) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
…"
12. Section 196B deals with the functions of the RMA and subsection 196B(2) deals with the determination of Statement of Principles.
STATEMENTS OF PRINCIPLES
13. The relevant Statement of Principles for the condition of osteoarthritis of the right knee is Instrument Number 81 of 2001 concerning Osteoarthrosis. This is the most favourable Statement of Principles for Mr Leary.
14. In relation to the condition of osteochondritis of the costochondral junctions of the left ribs, there is no Statement of Principles. The proper approach in such circumstances is to apply the tests in subsection 120(1) and 120(3) of the Act, as enunciated in the High Court decisions of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.
ISSUES
15. At the commencement of the Hearing, the Tribunal was informed that the Applicant is contesting the Board decision only in so far as it relates to osteoarthritis of the right knee and bruised rib cartilage. The Applicant is not pursuing his claims in relation to liver damage, hypertension, ischaemic heart disease and anxiety disorder.
16. In the event that the Applicant is successful in relation to his entitlement matters, then the parties agreed that the assessment of the correct rate of Disability Pension be remitted to the Respondent.
17. The issues for the Tribunal to determine are:
(1)Whether or not the Applicant's condition of osteoarthritis of the right knee is war-caused; and
(2)What is the correct diagnosis of the Applicant's left ribs condition and whether or not it is war-caused.
BACKGROUND
18. The following information is provided by way of background and is not disputed.
19. The Applicant was born on 22 October 1933 (T4). He played rugby at high school before leaving school at the age of 15. Thereafter he undertook manual work in a variety of positions before joining the Navy at the age of 18 on 24 October 1951 (T3, folio 3). He was an Able Seaman during his six years of Navy service and was discharged on 23 October 1957.
20. While serving in the Navy, the Applicant was posted to the Far Eastern Strategic Reserve ("FESR") and was engaged on operational service during six periods of varying duration between 24 November 1955 to 2 May 1957 (T3, folio 3). During this period the Applicant was a member of the rugby team for the Naval vessels on which he served: HMAS Anzac and HMAS Warramunga.
21. After discharge, the Applicant worked as a conductor on trams and buses before being employed by the State Transit Authority as a bus driver in 1959. He continued in this work for 42 years, attaining the position of first class inspector. He retired from work on 14 April 2000 (T4, folio 26).
22. On 6 June 2000 the Applicant lodged a claim for Disability Pension (T4) under section 14 of the Act. On 16 March 2001 (T2), the Respondent accepted that chronic solar skin damage and sensorineural hearing loss were war-caused. The claimed following conditions were not accepted as war caused:
(a)Liver damage
(b)Hypertension
(c)Ischaemic heart disease
(d)Osteoarthritis of the right knee
(e)Moderate anxiety disorder
(f) Bruised rib cartilage
23. Disability Pension was granted at 20 per cent of the General Rate on the basis of an impairment rating of 10 points, assessed under the "Guide to the Assessment of Rates of Veterans' Pensions" ("the Guide").
24. On 10 April 2001, the Applicant sought review of the decision by the Board (T9). On 3 August 2001, the Board affirmed the decision (T11). The Applicant sought review by the Tribunal on 21 November 2001 (T1).
EVIDENCE
The Applicant
25. The Applicant told the Tribunal that as a younger man he had enjoyed playing rugby. He played rugby league in the "wing" position while at school and played a number of games of rugby union in the "breakaway" and "inside centre" positions while in the Navy. He recalled playing "only a couple" of games on service in Australia before being posted to the FESR. He recalled playing "six or seven" games against teams from other vessels in port while on this posting.
26. The Applicant related an incident in which he injured his left ribs during a rugby game while he was serving on the HMAS Anzac in Malaya. In the game he had tackled one of the opposing players and had fallen hard on the player's boot, hurting the ribs on his left side. He had been taken off the field and taken back to the ship at about six o'clock in the evening. He was not assessed by the ship's Medical Officer, who may have been on shore leave at the time, and was attended by the Sick Berth Attendant ("SBA"). His ribs were strapped with a sticking tape-like bandage and he was given Aspirin for the pain.
27. This injury caused sharp pain, especially when taking deep breaths. The Applicant was not able to climb into his hammock and attempted to sleep on a couch in the sleeping quarters instead for a month or so. He recalled the pain of the SBA ripping off the sticking tape two weeks or so after the injury. It was six to eight weeks before he had fully recovered and was able to play sport again, packing foam round his ribs for the first few games. During this period he was working in the mess, cleaning tables, sweeping and mopping floors. His injury prevented him from doing heavier work. His mates would help out with his work and he stated that he was given special treatment by the Leading Seaman in the mess because he was in the rugby team. He could not recall whether or not he had been officially allocated light duties, it was too long ago, but the mess duties were lighter than the duties he performed on deck, painting, cleaning and doing general duties. The mess duties he initially undertook after the left rib injury were not the complete duties required of an able seaman working in that location.
28. The Applicant could not recall precisely when the injury occurred. He thought it happened within the first two or three months of the posting to Malaya, possibly in January or February 1956. He noted that the injury is not listed in his service medical records, but did not consider this to be unusual – he knew of other people whose records did not detail every occurrence on service.
29. Six or eight weeks after the injury, the Applicant resumed his normal service life and began playing rugby again. He thought he may have hurt his ribs a second time, but this was just a knock that was a bit tender because of the first injury.
30. He related an incident that occurred some time later on service in which he injured his right knee while playing a game of rugby against a team from a New Zealand ship. He tackled an opponent, whose hip or head collided at an angle with his right knee. Play was stopped and he was taken off the field. He was unable to walk and had to spend the rest of the game on the sidelines, while waiting to be taken to the sick berth on board ship. He saw the SBA, the ship's Doctor not being in attendance, and an elastic bandage was applied. The pain in his knee was a "sharp quick pain". His knee was swollen and he could not put weight on it or move about without pain, for which he was given Aspirin – the standard shipboard prescription for a wide variety of ailments. The Aspirin did not relieve the pain, however, which persisted with the other symptoms for several days. He saw the ship's Doctor the following morning and was told that he had severe bruising. No X-ray was required.
31. This injury took three or four weeks to heal and again prevented the Applicant from climbing into his hammock, as a consequence of which he slept on the couch in the sleeping quarters. Once again, he was given duties in the mess, but was not able to sweep or mop the floor for two weeks or so because he could not move about properly. He did not recall whether or not he had been officially allocated light duties. The mess deck was on the same level as his sleeping quarters, which meant he did not have to climb or descend ladders.
32. The Applicant could not recall precisely when he injured his right knee, but thought it was after he injured his ribs, possibly six or eight weeks or more. It was too long ago to remember. They played rugby whenever the ship was in port. He had played in only about six out of ten games that were played while he was on posting to the FESR.
33. In cross-examination the Applicant could not recall injuring his ribs in 1952 or his knee in 1953, as recorded in his service records. He thought if he had injured himself, then the injuries must have been minor. He stated that he only recalled playing a couple of rugby games on service in Australia and did not recall getting injured in either of these games. He could not recall injuring himself in a lift-well nor injuring his thumb, but thought that this may have occurred in a game in Saigon.
34. The Applicant acknowledged that he had difficulty remembering things, but can recall significant events. He told the Tribunal that the injury to his left ribs had caused him trouble since the injury occurred, as lying on his side, especially the left side, aggravated it. The cartilage between his ribs sticks out and becomes painful when he lies on it. He does not sleep well as a result of the discomfort this causes, which has persisted since the injury occurred.
35. The Applicant's right knee did not trouble him for some time, but now his knee gets sore and painful. He exercises each day to keep the joints moving and has taken Celebrex since being advised to do so by Dr Kirsh, an Orthopaedic Surgeon (T7, folio 52).
Medical Evidence
36. Both parties relied on Dr Bornstein's reports (Exhibits A2 and A3) in evidence. It serves no purpose to repeat this evidence here. However, the Tribunal notes that Dr Bornstein:
(a)Gives a clinical diagnosis of "osteoarthritis of the right knee" and "osteochondritis of the costrochondral (sic) junctions on both sides particularly the lower ones." (Exhibit A2, p3); and
(b)States that while the duration of symptoms of the right knee is uncertain:
"There has been a discrete [knee] joint injury which has caused within 24 hours acute symptoms and signs … an effusion in the joint and signs of pain and swelling." (Exhibit A2, p3); and
(c)States that:
"…the patient appears to have had costochondritis. It is possible that this could be the end result of direct trauma" (Exhibit A2, p3); and
"if one accepts Mr Leary's account of injury to his ribs on service I suppose it is a plausible proposition that those injuries could have contributed in some measure to the development of his osteochondritis. The usual method of development of this disorder however is spontaneous and most patients do not give a history of trauma." (Exhibit A3)
SUBMISSIONS
37. The condition of osteoarthrosis is covered by an RMA Statement of Principles issued pursuant to s 196B(2) of the Act, being Instrument Number 81 of 2001.
38. The parties agreed, to their reasonable satisfaction, that the Applicant is not suffering from the rejected condition of "bruised rib cartilage", but is suffering from a condition more properly diagnosed as "osteochondritis of the costochondral junctions of the left ribs", and have agreed to amend the diagnosis accordingly. The condition of osteochondritis of the costochondral junctions of the left ribs is not covered by a Statement of Principles ("SoP").
39. The parties have agreed that if the Tribunal finds for the Applicant then:
(a)the earliest date of effect is 6 March 2000; and
(b)the matter should be remitted to the Respondent for assessment of the appropriate rate of pension.
The Applicant
40. In relation to the left ribs condition, which Mr Sherlock submitted is the only rib condition being claimed, the correct diagnosis is osteochondritis of the costochondral junctions. There is no SoP, and in such circumstances Mr Sherlock drew the Tribunal's attention to Bushell v Repatriation Commission (supra), submitting that the Tribunal must accept the Applicant's account of injury to his left ribs unless there is evidence to the contrary. There is evidence of the injury before the Tribunal and no direct contrary evidence, Mr Sherlock contended.
41. Turning to Dr Bornstein's reports and seeking authority in Bushell v Repatriation Commission (supra), Mr Sherlock opined that the word "plausible" was interchangeable with the word "reasonable", to the extent that the dictionary meaning for both words included, inter alia, "believable". Dr Bornstein is eminent in his field and delivers a reasonable hypothesis connecting the Applicant's injuries on service to his current conditions as claimed. The tests in Byrnes v Repatriation Commission (supra) and Bushell v Repatriation Commission (supra) are therefore satisfied.
42. Mr Sherlock put to the Tribunal that the service records indicating the Applicant received injuries to his left ribs in 1952 and to his knee in 1953 do not provide evidence that the injuries recounted by the Applicant in evidence did not occur. The two sets of injuries may both have occurred, the former possibly in some way contributing to the latter. In any event, the occurrence of the earlier injuries does not harm the hypothesis regarding the later injuries. Either there was no relationship between the injuries, as put forward in evidence, or there was. In either event an hypothesis is raised, albeit with different causal elements. As established in Bushell v Repatriation Commission (supra) there is no competition between alternative hypotheses.
43. The evidence given by the Applicant that the injury to his left ribs may have occurred in January 1956 does not demonstrate that this is when the injury occurred. Rather it demonstrates that the Applicant is unable to remember when the injury occurred with precision. It is not possible, therefore, to be certain about when the injury occurred on the basis of memory alone. Mr Sherlock put to the Tribunal that it is equally reasonable, on the Applicant's evidence, to hypothesise in such circumstances that the injury did not occur in January 1956, but occurred in December 1955 or in February 1956 when the Applicant was on operational service. Further, it is reasonable to hypothesise that the injury to his right knee occurred more than six to eight weeks after the first injury during a period of operational service in February or March 1956.
44. With regard to the contention from Dr Bornstein's observation that the osteochondritis "has been there for 30 or more years" (Exhibit A2, p2) implies that the Applicant's condition occurred after his service in the Navy, Mr Sherlock pointed out that the term is indicative of a period that includes the Applicant's service. To impute that the term means approximately 30 years is to miss the point being made: the condition occurred a long time ago and it is not possible to be precise when it occurred, but this would not have been within the last 30 years. The evidence reveals both a causal injury on operational service and recurring effects thereafter.
45. The Respondent's contention that Dr Bornstein referred to more than one injury in his report is playing with words, Mr Sherlock submitted. In the context in which the reference is used, Mr Sherlock suggested that Dr Bornstein may have been referring to "injuries" occurring within the context of the overall injury, that is to the different ribs affected.
46. Turning to the right knee injury, Mr Sherlock referred the Tribunal to the relevant SoP, being Instrument Number 81 of 2001 concerning Osteoarthrosis. Pointing to Factor 5(j), Mr Sherlock argued that the injury and symptoms described by the Applicant and Dr Bornstein fall within the definition of "trauma to the affected joint" at paragraph 8 of the SoP. Factor 5(j) of the SoP states:
"suffering a trauma to the affected joint prior to the clinical onset of osteoarthrosis in that joint."
"trauma to the affected joint" is defined at paragraph 8 of the SoP to mean:
"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 seven 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 other external agents; or
(b) injections of corticosteroids or other local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint"
47. The fact that Dr Bornstein reported that the Applicant "has no absolute recall of how many days this lasted" confirms that the Applicant's memory is deficient. His evidence reveals that he was inconvenienced for at least seven days with the symptoms enduring for approximately one month. This evidence fulfils the requirements of the SoP.
48. The SoP being satisfied, the reasonable hypothesis test is satisfied. In the absence of evidence to contradict the reasonable hypothesis the Tribunal must find for the Applicant, Mr Sherlock submitted.
49. The deficiency of the records and the Applicant's inability to recall dates with precision because of the passage of time, should not disadvantage the Applicant in accordance with section 119 of the Act.
The Respondent
50. Ms Hook, for the Respondent, acknowledged that the reasonable hypothesis standard of proof presented difficulties for the Respondent in this case. However, the fact that the Applicant's operational service is comprised of six discontinuous periods interspersed between sizeable periods of non-operational service is a difficulty for the Applicant when dealing with two unrecorded injuries. The left ribs injury occurred at least six weeks before the knee injury, both occurred in games of rugby. Hypothetically, if it is accepted that the first injury occurred in the period of operational service between 18 February 1956 and 19 March 1956, the second injury would have occurred, on the Applicant's evidence, within the ensuing period of non-operational service that continued until 6 July 1956. If it is accepted that the first injury occurred in January 1956, as postulated by the Applicant, then this would be outside eligible service. The evidence about dates of injury is especially important when deciding whether or not an injury occurred in one of the fragmented periods of operational service. If the injuries are found not to have occurred on operational service, the claim must fail. If the Tribunal accepts that one injury occurred on operational service, then the other must fail. The hypotheses are contradictory in this element.
51. Referring the Tribunal to East v Repatriation Commission (1987) 16 FCR 517 and Bull v Repatriation Commission (2001) 66 ALD 271, Ms Hook noted that it is not open to the Tribunal to invent facts. Ms Hook put to the Tribunal, in the case of the claimed injury to the Applicant's left ribs, that there is no record, no recollection of the date on which it occurred, no recollection of a second injury, no recollection of the date on which a second ribs injury may have occurred, and an equivocal opinion from Dr Bornstein that a second injury may have contributed and would thus be material to the future development of the condition.
52. With regard to the claimed injury to the Applicant's right knee, Ms Hook conceded that it is not possible with the passage of time and the lack of other evidence to disprove the evidence regarding the length and type of symptoms the Applicant experienced. However, there is no record of the injury and the Applicant does not recall the date on which it occurred.
53. While Ms Hook conceded that it is possible for the Applicant to raise a general hypothesis, the evidence does not contain facts that enable the Tribunal to decide that the claimed injuries occurred during operational service and are, therefore, war-caused, Ms Hook contended.
CONSIDERATION OF THE ISSUES AND FINDINGS
54. The Tribunal finds that the Applicant's evidence is constrained by deficiencies in his memory with the passage of time. The Tribunal found the Applicant to be a witness of truth, who did not set out to deliberately mislead or conceal evidence from the Tribunal in pursuit of his claims.
55. The Tribunal is mindful of the history of litigation arising from aspects of the Act dealing with standards of proof and related authorities. In Bushell v Repatriation Commission (supra) at pp 437-438 Toohey J summarised the position in the following terms:
"The focus must be on s. 120 of the Act, including the relationship between sub-s. (1) on the one hand and sub-ss. (3) and (6) on the other. As to sub-s (3), a Full Court of the Federal Court recently said that "[i]t is accepted that the genesis of sub-s (3) was the dissenting judgment of Brennan J. in Repatriation Commission v O'Brien." In O'Brien Brennan J observed of the legislation then in force:
"If the facts thus ascertained support a reasonable hypothesis that the claimant is entitled to a benefit under the eligibility provisions of the Act, the Board or the Commission must determine to grant the claim. If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt. If the Board or Commission is satisfied that no reasonable hypothesis of entitlement is supported by the facts or that any such reasonable hypothesis is dispelled beyond reasonable doubt, the Board or Commission should reject the claim. Where, on the whole of the material no reasonable hypothesis of entitlement arises, there are `insufficient grounds for granting the claim'."
If s 120(1) stood on its own, there might be little difficulty in the application of the section. While the sub-section does not in terms impose an onus upon any party, its practical operation is to ensure that a claim is granted unless the Commission is satisfied, according to the criminal standard of proof, that there is no sufficient ground for concluding (as in the present case) that the disease in respect of which a pension is sought is a war-caused disease.
Some difficulty arises because of the provisions of sub-s. (3) and, to a lesser extent, of sub-s. (6). The former sub-section is, in my view, epexegetical of sub-s. (1). It dictates that in the circumstances there mentioned the Commission "shall be satisfied beyond reasonable doubt" that there is no sufficient ground for making a determination favourable to the claimant. In the circumstances of the present case, sub-s (3) requires that if the Commission, on the whole of the material before it, is of opinion that the material does not raise a reasonable hypothesis connecting the disease … with the service of the appellant … the Commission must be satisfied in terms of sub-s. (1) that there is no sufficient ground for making the determination sought by the appellant.
The scheme of s. 120 is such that the Commission inevitably turns its attention first to sub-s. (3). In doing so, it does not proceed on the basis of any onus, whether as to "reasonable hypothesis" or otherwise.
…
While sub-s. (3) is epexegetical of sub-s (1), it is not exhaustively so. If the Commission is of the opinion that the material does raise a reasonable hypothesis, it may nevertheless refuse a pension if it is satisfied that there is no sufficient ground for making a favourable determination. Even though sub-s (3) itself has not led to a rejection of a claim, the claim may be dismissed if, in the words of Davies J. in the present case, "the decision-maker is satisfied beyond reasonable doubt on all the evidence that any necessary element of fact did not exist, or that the theory was, in the circumstances of the case completely untenable". It may be, for instance, that the Commission is satisfied beyond reasonable doubt that, on the facts, an applicant did not come by the injury or the disease in the manner claimed. The claim will then be dismissed. But ordinarily, if the Commission is not of the opinion identified in sub-s. (3), a claim for a pension will succeed.
…"
56. The process to be followed when there is no SoP in force is set out by the High Court in Byrnes v Repatriation Commission (supra) at 571 as follows:
"The position may be summarized 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 Commission give rise to a reasonable hypothesis connecting the veteran's injury with 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 hypothesis."
57. As the osteoarthritis claimed by the Applicant is covered by a SoP, Repatriation Commission v Deledio (1998) 49 ALD 193 is also relevant here. In Repatriation Commission v Deledio (supra), the Full Court of the Federal Court set out at 206 the steps to be followed in such cases:
"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.
…
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 ss 196B (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 s 120 (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."
58. In Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615 the Tribunal adopted the following definition of "reasonable hypothesis", that has subsequently been approved of by the authorities:
"A hypothesis may conveniently be defined as: "proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption": The Concise Oxford Dictionary.
…
The addition of the word "reasonable" would however seem to imply that what is required is more than a mere hypothesis… to be reasonable, a hypothesis must possess some degree of acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be "raised" by material… it must find some support in that material — that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis.
…"
Osteochondritis of the Costochondral Junctions of the Left Ribs
59. In considering all the material before it in this case, the Tribunal turns, first, to the question of diagnosis. The Tribunal accepts Dr Bornstein's evidence and finds, to its reasonable satisfaction, that the correct diagnosis of the Applicant's left ribs condition is osteochondritis of the costochondral junctions of the left ribs. This diagnosis is common ground between the parties.
60. It has been put to the Tribunal that the left ribs injury occurred during a game of rugby in Malaya while on operational service and that this injury was, to some extent, material in the subsequent development of osteochondritis of the costochondral junctions of the left ribs. Thus an hypothesis is raised connecting the Applicant's osteochondritis of the costochondral junctions of the left ribs with his operational service.
61. When considering whether, or not, the hypothesis of connection that has been raised is reasonable pursuant to subsection 120(3) of the Act, the Tribunal is mindful of the position stated by the Full Federal Court in East v Repatriation Commission (supra) at 533:
"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."
62. For the purpose of considering whether a reasonable hypothesis is pointed to by the material in the case, the Tribunal notes that the hypothesis must stand on two legs: the first being temporal, linking the occurrence of the Applicant's left ribs injury to his operational service, and the second being causal, linking the left ribs injury to the Applicant's osteochondritis.
63. Drawing authority from East v Repatriation Commission (supra) and Bull v Repatriation Commission (supra), the Advocate for the Respondent argued that, at this point, the Applicant's claim relating to osteochondritis must fail. Submissions were made that the material before the Tribunal does not support the temporal leg necessary to support the hypothesis. It was put to the Tribunal that there is no evidence indicating that the Applicant's left ribs injury occurred during his periods of operational service. The Advocate for the Respondent argued that it is not open to the Tribunal to create facts where no facts are raised, and in the absence of raised facts pointing to the occurrence of the injury during a period of operational service, the hypothesis cannot be considered reasonable and the claim must fail.
64. However, the Tribunal does not agree with this submission and notes that it is not necessary to find facts at this stage, or, in the light of the material before the Tribunal, to create facts. The Applicant could not recall the precise date when he injured his left ribs but recalled it being on operational service in Malaya. Thus it is necessary to assume a "fact" for the purpose of the hypothesis, the assumed "fact" being the precise date on which the injury occurred. The High Court in Byrnes v Repatriation Commission (supra) at 570 stated:
"In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable."
65. Einfeld and Beazley JJ considered the issue of "raised facts" in Lowerson v Repatriation Commission (1994) 33 ALD 385 stating at 393:
"In finding "raised facts" the decision-maker is not to have regard to "conflicts in the material": the material must simply be capable of pointing to or permitting the inference, in a non-technical sense, of facts supporting a hypothesis which is reasonable if the facts are assumed to be true. Thus, as the majority recognised in Bushell at CLR 415: ALR 35, s 120 (3)
...is not concerned with the proof or satisfaction of a claim but with whether there is some "material" which calls for a determination under s 120 (1).
In other words, the subsection requires the decision-maker to assume the raised facts to be true for the purpose of determining whether the hypothesis is reasonable, in the sense that it is not "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous": East v Repatriation Commission (1987) 12 ALD 389; 16 FCR 517 at 532. That is why the subsection does not speak of any standard of proof or satisfaction for the decision-maker to find that the raised facts exist."
66. Merkel J further considered assumed "facts" in Critch v Repatriation Commission (1996) 43 ALD 574 at 577-578:
"An assumed fact cannot arise in the abstract. Obviously it is a fact that is reasonably open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis. Using these criteria ensures that the assumed fact is "raised" by the material and can be relied upon as a relevant matter and therefore a "raised fact" in forming an opinion as to the reasonableness of the hypothesis: see Byrnes at CLR 569-70."
67. In this case, the material neither directly supports nor contradicts the hypothesis that the injury occurred during a period of operational service. Applying the formulation set out in East v Repatriation Commission (supra) and Repatriation Commission v Bey (1997) 79 FCR 364, in the absence of any documentary record or other evidence concerning the precise date on which the Applicant's claimed injuries occurred, the Tribunal must consider the whole of the material before it.
68. The connection of the left ribs injury to an occurrence on operational service relies on the evidence of the Applicant. While an injury to the Applicant's ribs is recorded in the service records occurring in 1952, the Applicant does not recall the injury and strongly asserts, whether or not the prior injury occurred, the injury in question to his left ribs occurred while he was serving in the FESR. The Applicant could not, however, recall precisely when the claimed left ribs injury had occurred, suggesting that it may have occurred in January or February 1956, within the first few months of his posting. The Applicant could not be sure of the dates, it was too long ago and he could not remember.
69. This case differs from that of Bull v Repatriation Commission (supra) and Owens v Repatriation Commission (1994) 35 ALD 278 as the material before the Tribunal points to an hypothesis, that the injury occurred during one of the periods of the Applicant's operational service. There is nothing at this stage of the process of deciding matters pursuant to section 120(1) of the Act, to indicate that the hypothesis is fanciful. Taking into account the deficiency of the official records and the effects of the passage of time on the Applicant's memory, as required by paragraph 119(1)(h) of the Act, the reasonableness of the hypothesis is not reduced by the absence of precise facts; Critch v Repatriation Commission (supra), Lowerson v Repatriation Commission (supra) and Byrnes v Repatriation Commission (supra). The hypothesis is consistent with the known facts, it is not merely left open as a possibility in the abstract, nor is it fanciful, impossible, incredible or too remote or too tenuous. It is therefore reasonable in the context in which it is raised and for present purposes.
70. Furthermore, Dr Bornstein considers plausible the proposition that the Applicant's injury to his left ribs could have contributed in some material way to the development of his osteochondritis. He notes that the usual method of development of this disorder is spontaneous and most patients do not give a history of trauma. There is little to be made of Dr Bornstein's comment that the osteochondritis "has been there for more than 30 years" other than the osteochondritis occurred at some unknown time more than 30 years ago and has been present during this time. In Bushell v Repatriation Commission (supra) at 429-430 Brennan J approved of the approach set out by Davies J in Repatriation Commission v Bushell (1991) 23 ALD 13 at 15:
"A reasonable hypothesis will ordinarily be established if a responsible medical practitioner, speaking within the ambit of his expertise, and after considering the particular facts of the veteran's case, puts forward a theory of a likely, in the sense of a realistically possible, not fanciful, causal connection between war service and the veteran's disability. That being done, the s 120 (1) standard of proof will apply. The veteran's claim may be dismissed if the decision-maker is satisfied beyond reasonable doubt on all the evidence that any necessary element of fact did not exist, or that the theory was, in the circumstances of the case completely untenable."
71. Dr Bornstein is a responsible medical practitioner, speaking within the ambit of his expertise. He has put forward a plausible theory connecting the Applicant's disease and his prior injury to the left ribs while on service. The theory, being plausible rather than merely possible, although not common, is within the known scientific facts pertaining to the aetiology of osteochondritis. Thus the Tribunal finds that the material gives rise to a reasonable hypothesis connecting the Applicant's osteochondritis and the injury to his left ribs.
72. This being the case and having considered all of the material before it, the Tribunal finds that the material raises a reasonable hypothesis connecting the Applicant's osteochondritis of the costochondral junctions of the left ribs with his operational service pursuant to subsection 120(3) of the Act.
73. Turning to subsection 120(1) of the Act, the Tribunal notes that the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or 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 hypothesis.
74. The Tribunal has found a reasonable hypothesis connecting the Applicant's osteochondritis of the costrochondral junctions of the left ribs with his operational service. The Applicant has six periods of operational between 24 November 1955 and 2 May 1957 on HMAS Anzac and HMAS Warramunga while attached to the FESR. The Tribunal finds that the Applicant was a member of the rugby team for each these vessels. Inter-vessel rugby games were played while the vessels were in port. The Applicant's injury to his left ribs occurred during a rugby game during the first few months of the posting on operational service.
75. For the purpose of the hypothesis, which the Tribunal has found to be reasonable, it is necessary to assume that the left ribs injury occurred during a period of operational service as claimed by the Applicant. There is no material or evidence before the Tribunal to disprove this claim beyond reasonable doubt. Nor is any fact that is inconsistent with the hypothesis proved, beyond reasonable doubt. In the absence of evidence to the contrary, the claim must succeed. The Tribunal finds that the Applicant's osteochondritis of the costochondral junctions of the left ribs is war-caused and that it is not satisfied, beyond reasonable doubt, that there is no ground for making this finding pursuant to subsection 120(1) of the Act.
Osteoarthritis of the Right Knee
76. Turning to the osteoarthritis of the Applicant's right knee, the Applicant told the Tribunal that he recalled injuring his right knee in a rugby game in Malaya on operational service, having injured his left ribs in a previous rugby game at least six or eight weeks earlier. Dr Bornstein considered that there has been a trauma to the Applicant's right knee which may have contributed in a material way to the Applicant's osteoarthritis. This being the case, a general hypothesis connecting the osteoarthritis of the Applicant's right knee with his operational service is raised.
77. The Respondent referred the Tribunal to Bull v Repatriation Commission (supra) submitting that there is no evidence regarding the precise date on which the injury to the right knee occurred, on the basis of which the hypothesis is left open, without support in the material before the Tribunal, and the claim must fail. The Tribunal does not agree with this submission. The High Court stated in Bushell v Repatriation Commission (supra) at 414, prior to the introduction of SoP's that:
"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 support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true."
78. The authorities, East (supra), Critch (supra) and Bey (supra), clearly establish that a reasonable hypothesis involves more than mere possibility or conjecture. It must be pointed to by the facts, although not proven on the balance of probabilities. The Tribunal notes that the circumstances of the current case differ from the circumstances applying in Bull v Repatriation Commission (supra) and Owens v Repatriation Commission (supra). In this case, there is material before the Tribunal that points to an hypothesis of connection between the Applicant's osteoarthritis and his operational service. Thus, the hypothesis of connection is not a matter of mere possibility or conjecture. The Respondent has argued that the absence of a "fact" renders the hypothesis unreasonable. However, the Tribunal notes the position established by the authorities - assuming a "fact" does not itself make an hypothesis unreasonable, Byrnes v Repatriation Commission (supra) at 569. In Repatriation Commission v Stares (1996) 66 FCR 594, Black CJ, Ryan and Einfeld JJ stated at 601:
"Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question."
79. Taking account of all the material before it, the Tribunal finds that the hypothesis connecting the Applicant's injury of his right knee with his operational service is credible and not merely possible in the abstract or fanciful.
80. Following the steps set out in Repatriation Commissionv Deledio (supra), the Tribunal turned to the relevant SoP for Osteoarthrosis, Instrument 81 of 2001, which sets out the Factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the person's osteoarthrosis with the circumstances of their relevant service. The Applicant submitted that Factor 5(j) relevantly applies. Dr Bornstein reported that there has been a trauma to the Applicant's right knee comprising a "discrete joint injury which has caused within 24 hours acute symptoms and signs … an effusion in the joint and signs of pain and swelling. He has no absolute recall of how many days this lasted." The Applicant gave evidence that these symptoms and signs persisted for several days and he "could not move about properly" or put any weight on his knee for a period of weeks thereafter.
81. On this basis, the Tribunal finds that the hypothesis is consistent with the SoP template and, applying the third step in Repatriation Commission v Deledio (supra), is therefore reasonable. Thus the Tribunal finds that a reasonable hypothesis is raised pursuant to subsection 120(3) of the Act connecting the Applicant's osteoarthritis of the right knee with his operational service.
82. Turning to subsection 120(1) of the Act, the Tribunal has considered submissions by the Respondent that the hypotheses connecting the Applicant's osteochondritis and osteoarthritis with operational service are contradictory, to the extent that the evidence precludes both injuries from occurring during operational service. The Tribunal does not concur with the submissions and notes the words of Einfeld and Beazley JJ in Lowerson v Repatriation Commission (supra) at 394-395:
"Thus once the hypothesis is identified — that is supported by "facts pointed to by the material" — and then found to be reasonable, the analysis moves to s 120. (1) where a high degree of satisfaction is required that the raised facts do not exist if the hypothesis is to be discharged and the claim is to fail.
…
One of the problems to have arisen in the very difficult task of interpreting s 120 is the concept of "facts" which do or do not exist. It is at least confusing, if not more, to speak of a true or false (or untrue) "fact". What is really being referred to is evidentiary material, in an administrative law sense, which suggests a particular factual conclusion. It is this material which may be shown to be true or untrue in the exercise to be performed under subs (1); that is, to adapt the language of Byrnes, a piece of factual material needed to sustain the hypothesis may be disproved, or the truth of a necessary fact inconsistent with the hypothesis may be proved, beyond a reasonable doubt.
…"
83. It was put to the Tribunal that it is not possible, on the Applicant's own evidence, that the injuries to his left ribs and his right knee both occurred during periods of operational service. However, the Tribunal finds this is not an accurate reflection of the Applicant's evidence, which does not preclude this. The Applicant's evidence was that he could not recall when the injuries had occurred with precision. He stated that both injuries had occurred on FESR service during rugby matches between teams from Naval vessels in port. The first injury to his left ribs occurred in the first few months of his posting, possibly in January or February 1956, the second injury to his right knee occurred at least six or eight weeks later. The Tribunal finds that this does not mean the Applicant thought his first injury occurred in January or February 1956, merely that this was possible. Nor does it mean he thought the second injury occurred six or eight weeks later, rather that he thought it did not occur within six or eight weeks of the first injury, from which he was recuperating at the time. The Applicant was unable to recall the dates on which the injuries occurred, nor was he able to recall the dates of his operational service.
84. For the purpose of hypothesis, the Tribunal considered the evidence concerning the period during which the Applicant's injuries may have occurred. In the material before the Tribunal, there is no record of when the Applicant arrived in the region prior to commencing operational duties attached to the FESR. His first period of operational service commenced on 24 November 1955 and ended on 22 December 1955. His second period of operational service is recorded between 18 February 1956 and 19 March 1956, eight weeks after the first period. This is common ground. The Applicant gave evidence that he was in the HMAS Anzac rugby team and played inter-vessel rugby games when in port, and there is no reason to doubt this. It is both credible and reasonable to assume that some of the rugby games occurred during periods of operational service, consistent with the Applicant's evidence. On this basis, it is neither fanciful nor too tenuous to consider, in the absence of other evidence, that the injury to his left ribs may have occurred during his first period of operational service, and the injury to his right knee may have occurred during his second period of operational service, consistent with his evidence.
85. There is no onus of proof on either party pursuant to subsection 120(6) of the Act. The parties and the Tribunal accept the dates of the Applicant's operational service. The Applicant cannot remember precisely, in terms of a date or a month, when the injuries occurred, but is adamant that the injury to his left ribs and the injury to his right knee both occurred during the period he was serving in the FESR. The Applicant's service records do not provide assistance - the injuries are not recorded in the contemporaneous documents before the Tribunal. This is not unusual in this jurisdiction. However, consideration of all of the material before the Tribunal points to, and the Tribunal has found, reasonable hypotheses whereby both of the injuries may have occurred during rugby games on operational service. Furthermore, in relation to the injury to the Applicant's left ribs, the Tribunal has found that it is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant's osteochondritis is war-caused pursuant to subsection 120(1) of the Act.
86. Contemplating the deficiency of evidence, the Tribunal does not agree with the Respondent's submission that both injuries could not have occurred on operational service. The Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant's right knee injury did not occur during a period of operational service. The Tribunal finds, pursuant to subsection 120(1) of the Act, that no fact has been raised or proved, beyond reasonable doubt, that the injury to the Applicant's right knee did not occur during a period of operational service. This finding is consistent with the sequence of events related by the Applicant, his service with the FESR and the scientific facts. The facts that are necessary to support the raised reasonable hypothesis of connection are not disproved, beyond reasonable doubt, nor has any other fact, that would contradict the hypothesis, been proved beyond reasonable doubt.
87. Accordingly, the Tribunal finds that the Applicant's osteoarthritis of the right knee is war-caused as it is not satisifed, beyond reasonable doubt, that there is no sufficient ground for making this finding pursuant to subsection 120(1) of the Act.
88. With the passage of almost 50 years, in the absence of documentary records or corroborating evidence, as is often the case in this jurisdiction, it is not possible to determine the greater likelihood of one occurrence or another. In this case, the Applicant has made claims and given evidence to the best of his ability and to the extent of his memory. Even so, he is not able to assist the Tribunal by recalling the dates on which his injuries occurred. The honesty of the Applicant is of particular significance here. The Tribunal has found that he did not fabricate "facts" to assist his claim in the knowledge that these could not be disproved. Rather he recounted events as he recalled them occurring almost 50 years ago, relying on his memory, and where memory failed, relying on the facts in his service records, and where those records were insufficient for the purpose, conveying his knowledge, absent detail and precision, of facts now forgotten, thereby relying on the beneficial aspect of the legislation in making his claim.
89. The Tribunal is mindful of the words of Brennan J in Repatriation Commission v O'Brien (1985) 155 CLR 422 at p 438:
"If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt."
90. The Tribunal finds that the reasonable hypotheses raised in this case connecting the Applicant's osteochondritis of the costochondral junctions of his left ribs and osteoarthritis of his right knee with his operational service are not dispelled by other facts beyond reasonable doubt.
91. The Tribunal determines that pursuant to section 43 of the AAT Act that the decision under review be set aside and in substitution therefor decides that:
(a)The Applicant's osteochondritis of the costochondral junctions of the left ribs and osteoarthritis of the right knee are war-caused disabilities with effect from and including 6 March 2000; and,
(b)The matter is remitted to the Respondent for assessment of the correct rate of the Applicant's Disability Pension.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member, Dr J D Campbell, Member and Mr S Webb, Member
Signed:.......................................................................
Associate
Date of Hearing 27 August 2002
Date of Decision 27 September 2002
Representative for the Applicant Mr R Sherlock, Legal Aid Commission of NSW
Representative for the Respondent Ms P Hook, Departmental Advocate
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