Lynch and Repatriation Commission

[2011] AATA 716

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 716

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2010/0555

VETERANS’  APPEALS  DIVISION		)
Re		John Lynch

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal

Deputy President J W Constance,

Miss E A Shanahan, Member

Date14 October 2011

PlaceMelbourne

Decision The decision under review, being the decision of the Repatriation Commission made 2 July 2009 refusing Mr Lynch’s claim for acceptance of coeliac disease and dermatitis herpetiformis as being war-caused, is affirmed.

………(sgd J W Constance)……….

Deputy President

VETERANS’ ENTITLEMENTS ACT 1986 (Cth)– whether coeliac disease and dermatitis herpetiformis were war-caused – Deledio test – conditions not aggravated during operational service – decision under review affirmed

Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A(3) and 120(4)

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Milenz [2006] FCA 1436

REASONS FOR DECISION

14 October 2011 Deputy President J W Constance
Miss E A Shanahan, Member

INTRODUCTION

1.      On 2 July 2009 the Repatriation Commission decided that the coeliac disease and dermatitis herpetiformis suffered by Mr Lynch were not war-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth).  Mr Lynch has applied to the Tribunal to review this decision.

2.      For the reasons which follow the decision under review will be affirmed.

MATERIAL BEFORE THE TRIBUNAL

Mr Lynch’s evidence

3.      Mr Lynch served in the Royal Australian Navy from 27 August 1952 until 21 March 1957.

4.      In May 1955 Mr Lynch sailed from Melbourne to Portsmouth, England on board HMAS Vengeance.  During this voyage he suffered two bouts of vomiting and diarrhoea.  The second of these bouts occurred in July 1955 and is recorded in Mr Lynch’s medical records as gastroenteritis.[1]  Mr Lynch says that at the time he suffered from distension of his stomach, diarrhoea, vomiting, nausea and feeling unwell.

[1] Exhibit R1 p20.

5.      In July 1955 whilst still on board HMAS Vengeance Mr Lynch also suffered from welts and eruptions in his skin.  On 14 July 1955 this was diagnosed as dermatitis herpetiformis.[2]  This condition recurred in October 1955 after Mr Lynch disembarked at Portsmouth. On 1 November 1955 the diagnosis was confirmed by a Dermatologist in Portsmouth.[3]  Mr Lynch was prescribed dapsone which relieved the condition.[4]

[2] Exhibit R1 p21.

[3] Exhibit R1 p6.

[4] Exhibit R1 p24.

6.      In May 1956 Mr Lynch left Portsmouth on board HMAS Melbourne and returned to Australia.

7.      In September and October 1956 Mr Lynch sailed on HMAS Melbourne from Jervis Bay in New South Wales to Malaysia and the South China Sea and back to Australia.  He disembarked in Melbourne.  Mr Lynch was on board HMAS Melbourne for the following periods:

·21 September 1956 to 28 September 1956

·29 September 1956 to 1 October 1956

·2 October 1956 to 12 October 1956

During the periods 21 September 1956 to 28 September 1956 and 2 October 1956 to 12 October 1956 Mr Lynch was engaged in operational service.

8.      Mr Lynch said that during the year prior to October 1956 the dermatitis condition was controlled by the medication, which he took as needed.  From time to time he would experience the welts and itching but the blisters would not develop.

9.      Mr Lynch said also that he felt well during the voyage from Jervis Bay and that the dermatitis was under control until the return voyage from the South China Sea in October 1956.  Before the HMAS Melbourne berthed he began to experience the welts and itchiness.  He continued to take dapsone as required.  He said that during the trip his bowel movements were “about normal for me.”

10.     After Mr Lynch disembarked the dermatitis worsened and the blisters appeared.  He worked as a Marshall at the Olympic Games in Melbourne for one week in November 1956 but the dermatitis became so bad that he was unable to continue in this role.  He was admitted to hospital for treatment on 28 November 1956.[5]

[5] Exhibit R1 p15.

11.     Mr Lynch gave evidence that during his time in the Navy his diet was high in food prepared with flour made from wheat.  His diet remained the same as usual when on board HMAS Melbourne.

12.     While he was hospitalised it was suggested by a Dr Bayer that Mr Lynch may have coeliac disease and he was advised to follow a wheat free diet.  This helped to control the symptoms but Mr Lynch did not adhere strictly to the diet.

13.     Since about 2003 Mr Lynch has followed a strict gluten-free diet and has not experienced any symptoms of coeliac disease since that time.  He has not experienced the symptoms of dermatitis herpetiformis for more than 20 years.[6]

[6] Exhibit R5 pp.8-9.

Evidence of Professor Macrae, Consultant Physician and Gastroenterologist

14.     Professor Macrae assessed Mr Lynch in April 2011 and reviewed his medical records.  He provided a report of 27 April 2011.[7] 

[7] Exhibit A1.

15.     In his report Professor Macrae stated that coeliac disease occurs in people with a particular genetic predisposition.  In describing the development of the disease he reported:

A key event in this process is believed to be a trigger which allows the gluten to gain access to the tissue below the lining (lamina propria and submucosa); enabling the sequence to occur. That trigger is generally considered to be coincidental gastroenteritis, such as traveller’s diarrhoea.

…

Subsequent exposure to gluten, possibly at high levels, would exacerbate the pathogenesis (pathological development) of the coeliac immune process, delivering a variable range and severity of symptoms, as is seen in coeliac disease, including dermatitis herpetiformis.

16.     In relation to Mr Lynch’s condition Professor Macrae expressed the following opinion:

It is quite conceivable therefore, that Mr Lynch, as a genetically predisposed individual, suffered the trigger to this process during his voyage from Melbourne to the UK on HMS Vengeance, as the episodes of diarrhoea and gastroenteritis that he describes were severe. Exposure to gluten then subsequently brought out the symptomatic manifestations of his coeliac disease and dermatitis herpetiformis. The process may be exacerbated by further episodes of gastroenteritis due to traveller’s and other infectious causes, during his voyage on HMAS Melbourne. These episodes are well entrenched in Mr Lynch’s memory. Thus, it would not be surprising that his dermatitis herpetiformis became worse and more manifest during his voyage into Melbourne leading to his admission to the Repatriation General Hospital. It is thus conceivable, that had he not been engaged in active or non-active service and exposed to traveller’s diarrhoea, the triggering event would not have occurred and indeed may never have occurred during his adult life; clinicians see from time to time in the recognition of coeliac disease only at a late age, many if not most, coeliac patients can be completely asymptomatic.[8]

[8] Exhibit A1.

Evidence of Dr Segal, Consultant Dermatologist

17.     Dr Segal assessed Mr Lynch in February 2011 and reviewed his medical records.  He provided a report dated 25 February 2011.[9]

[9] Exhibit R2.

18.     Dr Segal expressed the following opinion:

If an inherited predisposition to this condition occurs, the onset of this may be determined by a genetic switch. I do not believe there is any evidence that excessive ingestion of gluten in non-predisposed individuals has ever been shown to initiate the condition. With this in mind I think it is not plausible that the possible ingestion of larger amounts of gluten-containing foods in Mr Lynch’s diet whilst in military service was the initiating factor in his dermatitis herpetiformis or coeliac disease.[10]

[10] Exhibit R2.

Evidence of Dr Jakobovits, Gastroenterologist

19.     Mr Lynch was examined by Dr Jakobovits in February 2011.  He provided a report dated 15 February 2011.[11]

Dr Jakobovits is of the opinion that the coeliac disease suffered by Mr Lynch may have been triggered by a diet which contained lots of gluten or by something else, such as an infection.  He expressed the view that the clinical onset of the condition occurred during his naval service but was not attributable to the period of operational service.[12]

LEGISLATIVE BACKGROUND

[11] Exhibit R3.

[12] Exhibit R3 p3.

War-caused injury

20. Section 9 of the Act sets out the circumstances in which an injury is taken to be “war-caused”.  The relevant parts of that section are:

War‑caused injuries or diseases

(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

(e)the injury suffered, or disease contracted, by the veteran:

(i)     was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii)     was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service,

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible  war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease; 

but not otherwise.

Standard of proof

21. Section 120 relevantly provides:

Standard 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; or

(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.

…

(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.

Reasonableness of hypothesis to be assessed by reference to Statement of Principles

22.     Subsection 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) or (11); or

(b)a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

23.     Subsection 120A(4) provides:

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.

REASONING IN RELATION TO THE COELIAC DISEASE CLAIM

24.     In Repatriation Commission v Deledio[13] the Full Court of the  Federal Court set out the steps to be taken in determining claims which arise from operational service:

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 a SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If a 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.

[13] (1998) 83 FCR 82 at 97.

Issues for determination

25.     We have to determine the following issues:

1)Did Mr Lynch render "operational service” and if so, when?

2)Does Mr Lynch suffer from coeliac disease?

3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the disease with the circumstances of the operational service?

4)If such a hypothesis is raised, is there a relevant Statement of Principles in force?

5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and therefore a reasonable one?

6)If so, considering section 120(1) are we satisfied beyond a reasonable doubt that the disease suffered by Mr Lynch was not war-caused?

Determination of the issues

Did Mr Lynch render operational service and if so, when?

26.     The Commission has conceded that Mr Lynch rendered operational service from 21 September 1956 until 28 September 1956 and from 2 October 1956 until 12 October 1956.  We are satisfied that this is a proper concession.

Does Mr Lynch suffer from coeliac disease?

27.     The parties agree that Mr Lynch suffers from coeliac disease.  We are satisfied that this is the correct diagnosis based on the duodenal biopsy carried out in 1998 and the demonstration of anti-gliadin antibodies. [14]

Considering all the material before the Tribunal, does it point to a hypothesis connecting the coeliac disease with the circumstances of the operational service?

[14] Ex.A1.

28.     The hypothesis put by Counsel on behalf of Mr Lynch was:

he has contracted both conditions prior to the operational service and during the period of exposure during operational service he has continued to aggravate the conditions leading to his hospitalisation.[15]

[15] Transcript 17.8.11.

29.     Counsel for Mr Lynch referred us to the evidence of Professor Macrae as being material which points to such a hypothesis. The hypothesis put by Professor Macrae was that Mr Lynch was genetically predisposed to coeliac disease and that the trigger of the process was the bouts of diarrhoea and gastroenteritis suffered during the voyage from Australia to England in 1955.

30.     Dr Jakobovits gave evidence that coeliac disease may have been triggered by a diet high in gluten.  Mr Lynch gave evidence that during the period of operational service he continued to consume the same navy diet that he had previously which was high in wheat-based foods.

We determine that the material before us points to a hypothesis connecting the coeliac disease to Mr Lynch’s period of operational service.  The hypothesis is that Mr Lynch developed coeliac disease prior to his period of operational service and that during operational service he continued to aggravate the condition (by the consumption of a diet high in gluten) which resulted in his hospitalisation for treatment of dermatitis herpetiformis..

Is there a relevant Statement of Principles in force?

31.     We are satisfied that the relevant Statement of Principles is No.1 of 2011 which concerns Coeliac Disease.  In this Statement, coeliac disease “means a malabsorption disorder causing inflammation in the small intestine, induced in susceptible people by the ingestion of gluten.”[16]

Is the hypothesis consistent with the “template” within the Statement and therefore a reasonable one?

[16] Clause 3(b).

32.     Clause 6 of the Statement of Principles provides in part:

The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting coeliac disease …… with the circumstances of a person’s relevant service is:

(d)     inability to maintain a gluten-free diet at the time of the clinical worsening of coeliac disease. 

Mr Lynch relied on this factor. 

33.     Initially Counsel also relied on clause 6(e), “inability to obtain appropriate clinical management for coeliac disease”, but withdrew this argument during the hearing, based on the expert evidence that the definitive diagnosis of coeliac disease and its correlation with dermatitis herpetiformis was not recognised until 1966.  We agree that the material before us does not support a hypothesis consistent with this template.

34.     For the hypothesis put forward by Mr Lynch to be consistent with the template set out in clause 6(d) there must be material before us to support a hypothesis that there was an inability to maintain a gluten-free diet at the time of the clinical worsening of the coeliac disease.

35.     The Federal Court of Australia considered the meaning of clinical worsening in Repatriation Commission v Milenz.[17]  In that matter the Court was considering the Statement of Principles relating to alcohol abuse.  The appellant argued that:

Once the diagnosis of alcohol abuse has been made, the diagnostic criteria have no further application when considering the worsening of an accepted disease.  Those criteria are only relevant if the existence of the disease is in issue.[18]

[17] [2006] FCA 1436.

[18] At para.30.

36.     His Honour Justice Finn said:

The question whether a disease as defined in a SoP has clinically worsened is a medical one, raising as it does a diagnostic question. I have emphasised “as defined” for the reason that the clinical worsening must be of the disease having the features, symptoms and manifestations prescribed in the relevant SoP’s definition: cf Lees v Repatriation Commission (2002) 125 FCR 331 at [16].[19]

…………………………………………………………………………..

What is clear, in my view, is that the Tribunal misconstrued what was comprehended by the clinical worsening requirement of par 5(d) of the SoP.  That requirement imposed a medical-scientific standard, not a lay standard.  Though Tribunal found a clinical worsening of Mr Milenz’s alcohol abuse, it did not address whether there was a worsening in the disease as defined and manifest.  It simply inferred a worsening because, “after operational service, the quantity, type, and frequency of alcohol consumed was far greater”.  These are not features or manifest symptoms of the disease defined in par 2(b) of the SoP.[20]

The consequence of the Tribunal so treating 5(d) is that the actual hypothesis it considered was pointed to on the material before it was not one upheld by the SoP.  For this reason the decision as it relates to alcohol abuse must be set aside.[21]

[19] At para. 33.

[20] Para. 35.

[21] Para.36.

37.     In the Statement of Principles applicable in this application clause 3(c) provides in part:

It [coeliac disease] is characterised clinically by a range of gastointestinal and extraintestinal manifestations, and by specific biopsy-demonstrated histological changes in the small intestine.

38.     The material before us does not support an hypothesis that there was a clinical worsening of coeliac disease at the time Mr Lynch was unable to maintain a gluten-free diet whilst on operational service.  The evidence of Mr Lynch is that the symptoms of dermatitis herpetiformis once again became apparent while he was on operational service.  There is no material which supports a worsening of the coeliac disease as defined.

39.     We decide that the hypothesis in relation to the coeliac disease is not consistent within the template of the Statement of Principles and therefore is not a reasonable hypothesis.  The claim in relation to coeliac disease must fail.

REASONING IN RELATION TO THE DERMATITIS HERPETIFORMIS CLAIM

40.     In relation to this claim similar issues arise as arose in our consideration of the coeliac disease claim.  There is no Statement of Principles in force in relation to dermatitis herpetiformis.  This means that if the material points to a hypothesis connecting the disease with the circumstances of the operational service, the claim is to be determined in accordance with subsections 120(1) and 120(3).[22]

[22] Byrnes v Repatriation Commission (1993) 177 CLR 564.

41.     In Bushell v Repatriation Commission [23]  the High Court said:

[23] (1992) 175 CLR 408.

The Commission will be satisfied beyond reasonable doubt “that there is no sufficient ground for making [the] determination” if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis.  Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.[24]

[24] At p.416.

Issues for determination

42.     We have to determine the following issues.

1)Does Mr Lynch suffer from dermatitis herpetiformis?

2)Considering all the material before the Tribunal, does it point to a hypothesis connecting the disease with the circumstances of the operational service?

3)If such a hypothesis is raised, is there a relevant Statement of Principles in force?

4)If there is no relevant Statement of Principles in force, are we satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused?

Determination of the issues

Does Mr Lynch suffer from dermatitis herpetiformis?

43.     The parties agree that Mr Lynch suffers from dermatitis herpetiformis.  On the basis of the evidence of Dr Segal[25] we are satisfied that this is a correct diagnosis.

Considering all the material before the Tribunal, does it point to a hypothesis connecting the dermatitis herpetiformis with the circumstances of the operational service?

[25] Report dated 25 February 2011, exhibit R2.

44.     As referred to in relation to the coeliac disease claim, Counsel for Mr Lynch put the hypothesis that:

he has contracted both conditions prior to the operational service and during the period of exposure during operational service he has continued to aggravate the conditions leading to his hospitalisation.

45.     We determine that the material before us points to a hypothesis connecting the dermatitis herpetiformis to Mr Lynch’s period of operational service.  The hypothesis is that:

·Mr Lynch developed coeliac disease prior to his period of operational service;

·as a consequence of his suffering coeliac disease he experienced bouts of dermatitis herpetiformis;

·during the period of operational service the dermatitis herpetiformis was aggravated by the consumption of a diet high in gluten;

·the aggravation of the condition  caused it to become symptomatic in the form of welts and itchiness on his forearms;

·the symptoms became so severe that Mr Lynch required hospitalisation on 28 November 1956.

Is there a relevant Statement of Principles in force?

46.     There is no Statement of Principles for dermatitis herpetiformis.

Are we satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused?

47.     On the basis of the service medical records [26]  and the evidence of Professor Macrae, we are satisfied beyond reasonable doubt that Mr Lynch was first diagnosed as suffering dermatitis herpetiformis in 1955.  The first diagnosis of the condition was made when Mr Lynch was on board HMAS Vengeance on its voyage to Portsmouth.  This diagnosis was confirmed by a Dermatologist in Portsmouth.

[26] Ex.R1 P21; ex.R1 p.6.

48.     On the basis of the evidence of Mr Lynch we are satisfied beyond reasonable doubt that thereafter Mr Lynch suffered intermittent recurrences of the symptoms of dermatitis and that he was able to lessen the effects of these symptoms by the use of dapsone.

49.     Further we are satisfied beyond reasonable doubt that dermatitis herpetiformis and its symptoms are a result of coeliac disease.  We have reached this conclusion on the basis of the evidence of Professor Macrae.

50.     The evidence we have referred to causes us to be satisfied beyond reasonable doubt that the symptoms of the dermatitis herpetiformis experienced by Mr Lynch during his operational service were the onset of another manifestation of the disease and that he recovered from these symptoms several weeks later.  We are satisfied beyond a reasonable doubt that the condition of dermatitis herpetiformis was not aggravated by the period of occupational service.  We are satisfied that the consumption of gluten during the operational service caused the condition to become symptomatic for a period of weeks but that the occupational service did not aggravate the condition.

51.     On the basis of the evidence of Mr Lynch we are satisfied beyond a reasonable doubt that when he does not consume gluten the coeliac disease and the dermatitis herpetiformis do not become symptomatic.  Mr Lynch has been free of any symptoms of dermatitis herpetiformis for more than 20 years.

52.     We are satisfied beyond a reasonable doubt that there is no sufficient ground for determining that the condition of dermatitis herpetiformis suffered by Mr Lynch was not war-caused.

CONCLUSION

53.     For the reasons given, the reviewable decision of the Repatriation Commission made 2 July 2009 refusing Mr Lynch’s claim for acceptance of coeliac disease and dermatitis herpetiformis as being war-caused, will be affirmed.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President J W Constance and
Miss E A Shanahan, Member

Signed:         ....(sgd K Peterson)................
  K. Peterson, Associate

Date of Hearing  17 August 2011
Date of Decision  14 October 2011
Solicitor for the Applicant          Mr D De Marchi

Solicitor for the Respondent     Mr D Brown and instructed by Mr A Blunt, Australian Government Solicitor