Macklin and Repatriation Commission
[2008] AATA 496
•17 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 496
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3650
VETERANS' APPEALS DIVISION ) Re MALCOLM JOHN MACKLIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell Date17 June 2008
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in place of that decision, determines that the applicant is entitled to pension at the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 with effect from 23 August 2006.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – special rate of pension – remunerative work – whether war-caused injury alone prevented applicant from continuing to undertake work – availability of voluntary separation package at cessation of employment – impact of non war-caused shoulder condition – loss of salary, wages or earnings – decision set aside
Veterans’ Entitlements Act 1986 ss 24(1), 24(2), 120(4)
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Braund (1991) 23 ALD 591
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
Re Banovich and Repatriation Commission (1986) 9 ALN N223
Starcevich v Repatriation Commission (1987) 18 FCR 221
Sheehy v Repatriation Commission (1996) 66 FCR 569
Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50Repatriation Commission v Hendy (2002) 76 ALD 47
REASONS FOR DECISION
17 June 2008 Senior Member L Hastwell 1. Malcolm Macklin (the applicant) served with the Royal Australian Air Force (the RAAF) from 11 November 1968 to 13 March 1990.
2. He has the following accepted war-caused disabilities:
·bilateral trochanteric bursitis;
·bilateral early cartilaginous degenerative disease of the knee joints;
·intervertebral disc prolapse;
·bilateral sensorineural hearing loss; and
·depressive disorder.
3. He also suffers from upper arm and shoulder problems associated with a non war-caused repetition strain injury. He was compensated by his employer with respect to these injuries.
4. Immediately after leaving the RAAF, he commenced employment with General Motors Holden Limited (Holden) on 13 March 1990. He remained employed there as a security officer and then a team leader in security until 18 October 2006 when he accepted a voluntary separation package (VSP) and ceased his employment. He has not worked since that time.
5. The applicant is a recipient of a service Disability Pension at the rate of 100 percent of the general rate.
6. On 23 August 2006, the applicant lodged a claim for an increase in his Disability Pension to the special rate provided for in s 24 of the Veterans’ Entitlements Act 1986 (the VE Act.) On 6 December 2006, a delegate of the respondent (the Commission) determined that his pension should continue at the rate of 100 percent and rejected the applicant's claim for the special rate of pension. That decision was affirmed by the Veterans’ Review Board (the VRB) on 20 June 2007.
7. The applicant seeks a review of the delegate’s decision of 6 December 2006. He says that he should be entitled to the special rate of pension.
legislation
8. The relevant legislation is contained in the VE Act.
9. Section 120(4) of the VE Act applies in this case and the Tribunal must decide all matters to its reasonable satisfaction and on the balance of probabilities.
10. Section 24 of the VE Act sets out the criteria for ascertaining whether a special rate of pension is applicable. It provides as follows:
“24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
11. It is common ground in this case that the applicant satisfies the provisions of s 24(1)(a) in that his degree of incapacity is at least 70 percent under the VE Act.
12. It is also common ground that the applicant is totally and permanently incapacitated as a result of war-caused disabilities which, of themselves alone, are of such a nature as to render him incapable of undertaking remunerative work for a period aggregating more than 8 hours a week and so it is conceded that he satisfies s 24(1)(b) of the VE Act.
issues
13. The issues for determination by the Tribunal in this case are:
·whether the applicant satisfies the requirements of s 24(1)(c) of the VE Act in that by reason of his incapacity from war-caused disabilities alone, he is prevented from continuing to undertake remunerative work that he had been undertaking;
·in determining that issue the Tribunal must determine whether he ceased to engage in remunerative work for reasons other than or in addition to the incapacity he was suffering from his war caused disabilities; and
·whether, as a consequence, he is suffering a loss of earnings on his own account that he would not be suffering if he was free of that incapacity.
14. It is common ground that the applicant has not sought to engage in remunerative work since leaving his employment at Holden and therefore the ameliorating provisions of s 24(2)(b) of the VE Act are not applicable in this case.
the hearing
15. The applicant gave evidence. A human resources officer from Holden gave evidence for the Commission.
16. The applicant confirmed the accuracy of his statement, received as Exhibit A2. He told the Tribunal that he suffered an aggravation of his back injury at work in 1999 as a result of which he had to undergo two back operations in the space of a matter of weeks. When he returned to work it was with permanent restrictions imposed on his working capacity and he worked with those restrictions until he ceased his employment. The restrictions were substantial and included a restriction on heavy lifting, climbing stairs and prolonged bending.
17. He continued to work as a security officer upon his return to work, but he reflected that in his own mind he felt he became a liability for his employer because of his level of disability. He was first offered a VSP in 2001. He elected not to take the VSP as he had ongoing personal financial liabilities, including a mortgage, and he could not afford to stop working at that time.
18. When he first returned to work after the back surgery he was restricted to light duties and initially worked eight hour shifts for three days a week. He worked at a checkpoint where he could sit in a cabin and then go out to the pedestrian gate and check the identification of drivers going through the gate. Despite the semi-sedentary nature of his work, he continued to suffer a lot of back and leg pain and restriction of movement after the surgery. He used a TENS machine, heat packs and medication in an endeavour to ease the pain.
19. The applicant returned to working four x 12 hour shifts and the problems with pain worsened. He recalls at least one occasion when he collapsed at work and had to be taken to the medical centre. He was still subject to the agreed restrictions when he returned to full-time work. His position was such that these restrictions could be accommodated.
20. He described the pain in his back as travelling through his hips and into his calves. Others in the workplace were aware of the level of pain that he was suffering and he can recall comments to the effect that he was really not fit to be working as a security officer. He took a lot of pain killers and kept going to work. He said that if he had his choice at the time he would have given up work because of the level of pain and disability from which he was suffering, however his financial commitments prevented him doing so.
21. In 2003 he was diagnosed with shoulder problems and he had to undergo surgery to one of his shoulders. The shoulder injury was a repetition strain injury caused by having to repeatedly open and shut the bonnets and the doors of cars when performing new vehicle checks. It was accepted by Holden as a Workers’ compensation claim.
22. The applicant returned to work after the shoulder surgery with some further restrictions imposed on movements. These restrictions did not really add much to the restrictions arising from his back problem. Repetitive arm work was excluded as it was this type of work that had given rise to the shoulder problems in the first place. He continues to suffer some restriction in elevation of his right arm. His own view was that he had very minor difficulties arising from the shoulder problems and that the back and leg pain and restriction of movement arising from his back were the overwhelming cause of his difficulty in functioning at work and in life generally.
23. He resolved the Workers’ Compensation claim with respect to his shoulders in 2007 when he received compensation under s 43 of the South Australian Workers Rehabilitation and Compensation Act 1986 for a 5 percent loss of function of the left arm above the elbow and a 10 percent loss of function of the right arm above the elbow.
24. From approximately 2004 onwards, Holden began to phase out using Holden employees for security and began a process of outsourcing all security work to Chubb. The Holden employees in security began to dwindle after 2004 and if they did not take a VSP they were required to apply for jobs as leading hands. The applicant was not willing to take a VSP as he wished to continue to work because of his financial commitments. He successfully obtained a position as a leading hand, but still in security, and by 2005 he was one of only five people left working in the security team at Holden. Most of the work had been outsourced to Chubb. His title became that of a leading hand for the last two years of his employment and he worked as a supervisor.
25. By 2006 the last remaining positions in the security section were to be outsourced to Chubb. He and the remaining security officers were given two choices by their employer which was to either take a VSP or work in another part of the plant.
26. Because of the physical restrictions imposed by his back injuries, the only possibility of continued employment at Holden for the applicant was to work in the plastics plant. He visited the plastics plant on a number of occasions to look carefully at what work would be involved there. There was a lot of discussion with his superiors about what he could physically do. His employer was obliged to ensure that a position in that section would accommodate his shoulder restrictions and they were satisfied that could be achieved, but Holden had no responsibility for his back as the original back injury was service related.
27. As a lot of bending and standing would be involved in working on the process line in the plastics plant, it was eventually decided by his employer that they could not offer him alternative work that would accommodate his back disability and the restrictions on the activities of his employment that arose as a result of his back problems. He was left with no alternative but to leave his employment as no other position was available. A VSP was available at the time to any of the remaining employees in the security section who did not wish to remain or who could not remain at Holden. He took a VSP and retired.
28. Towards the end of his time at Holden, he was making errors in judgement because of the level of medication he was taking to manage his back pain. He considered that he made some bad errors and decisions, and on at least one occasion, towards the end of his period of employment, he was formally counselled for an error.
29. He was cross-examined at length about the extent to which the shoulder injury impinged on his health. He said that it did not really make much difference at all as the minor limitations arising from the shoulder problems were already subsumed by the more significant limitations that arose from his back problem. The main problem he had with his shoulders was in the early days after the operation when he had difficulty putting pressure on that shoulder and sleeping. He considered the shoulders as being a minor health issue in comparison to his back.
30. In the last period of his work at Holden he would ask others to do the lifting and closing of car boots when cars had to be checked at the checkpoint as he was no longer capable of carrying out that task because of his back pain. In the last few months of his employment he was making up training packages for Chubb personnel as that was really all that he could do. His recall was that the last time that he performed actual security activities was at the end of August 2006 and he finally ceased work and took a VSP in October 2006. He has not worked since that time.
31. The applicant also suffers from a depressive disorder which is an accepted disability. This manifests in irritability, amongst other symptoms. He saw Dr Ewer on one occasion in 2005. Dr Ewer prescribed medication and diagnosed him as suffering from that disorder. The applicant did not take the prescribed medication as he was already taking significant quantities of pain killers and was reluctant to also take anti-depressant medication. His general practitioner prescribed mild tranquilising medication to assist him with his depression. This medication keeps him calm and assists with the pain from which he suffers at night.
32. During the final years at Holden the applicant suffered significant disruption of his sleep due to back pain and an inability to find a comfortable position in the night. Lack of sleep impacted on his ability to properly function at work. He was repeatedly told by his doctor to give up work, but because of his mortgage and his dependence on continuing to earn, he could not do so.
33. He is now enjoying his retirement to the point where he is “getting the pain under some control”. He still has significant problems sleeping and continues to experience limitation on his activities. He can no longer participate in a number of physical activities that he enjoyed prior to the back surgery.
34. Mr Michael Schuit, a human resources officer with Holden, gave evidence for the Commission. He was responsible for the transition of the security officers out of positions in Holden when outsourcing to Chubb occurred over a period of time. No Holden employees took up positions with Chubb in the outsourcing process. The bulk of employees were absorbed into other positions in the Holden plant.
35. He confirmed the applicant's evidence in so far as it related to the options that the applicant had once the final outsourcing was to occur. The applicant had two choices, which were to either take a VSP, which he said had been available to a number of employees including the applicant from approximately 2001 onwards, or look at placement elsewhere in the plant.
36. The personnel department endeavoured to accommodate security employees who wished to stay with Holden by providing them with a position in an alternative part of the plant.
37. He confirmed that because of the applicant’s back problems and the work restrictions that his back injury imposed on his ability to perform duties at work, there was no other work on site that suited the applicant when the final outsourcing was completed in 2006. He confirmed the applicant's evidence that the only position that could possibly have been taken by the applicant, given the limitations of his back injury, was in the plastics plant, but it became evident that he could not do that job because of the bending and movement that would be required. As a team leader in security, the applicant could move around and to a degree manage his own injuries, whereas once he was in the plastics plant in the position that was available, he would have been confined to a standing position for a long period and he would not have had the ability to move around and relieve his pain and flex his back.
38. He was aware of the physical difficulties that the applicant was suffering as he would often see him on the way to work as the security guards were at the gate.
39. He was aware that the applicant was in pain and uncomfortable at work and felt that he might be better off taking the VSP, but he said the applicant appeared very keen to stay at Holden.
40. The applicant was one of the last of the security personnel to take a VSP with the cut-off date being January 2007.
41. He recalled that the applicant went to look at the plastics plant on five to six occasions and had interviews with the manager and supervisor. It was after this that it was determined that he could not physically do the job. He said that Holden was not obliged to do any functional tests or rehabilitation assessments with respect to the applicant’s back, but they would have done so with respect to his shoulder, had he thought that he could do the tasks that they were proposing he do in the plastics plant. He acknowledged that Holden would have had to accommodate any limitations imposed by the shoulder injury as it was a compensable injury from their perspective.
other evidence
42. In a treating medical doctor’s report dated 16 October 2006 (T22), which was two days before the applicant ceased his employment, his doctor considered that he suffered from “Chronic low back pain → variable from mild discomfort to almost completely disabled with pain and dysmobility”. He commented that the applicant had “marked limitation of physical capacity in terms of prolonged sitting/standing and walking, unable to lift/bend/carry to any significant degree. Physical limitations due to chronic pain also”. At that stage it was considered that he had a permanent disability and was unlikely to be suitable for employment for eight hours a week or more.
43. A report from Cindy Molloy, his neurosurgeon, dated 23 January 2007 (T29) referred to his “… discogenic chronic low back pain. This has gradually become much more severe and he is no longer able to work”. She also expressed the view that he was not able to work in any occupation.
consideration and application of the law
44. The applicant was straightforward in his presentation and the Tribunal accepted his evidence. Mr Schuit gave clear and impartial evidence.
45. The issue for the Tribunal to determine is whether the applicant can qualify for pension at the special rate.
46. The applicant has accepted disabilities as set out in paragraph 2 (supra). The only disability suffered by him that is not war-caused, which may impinge upon his ability to obtain and retain employment, is the bilateral shoulder condition, which arose in the course of his employment with Holden and for which he has received compensation from that employer.
47. In considering the application of s 24(1)(c) of the VE Act I refer to the analysis of Justice Branson in the Full Federal Court decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 at pages 4-5. Her Honour said that a proper consideration of the relevant section required responses to the following four questions:
“1. What was the relevant “remunerative work that the veteran was undertaking within the meaning of s 24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his account that he would not be suffering if he were free of that incapacity?”
48. In considering this claim, the standard of proof is that of the Tribunal’s “reasonable satisfaction”. That has been equated in Repatriation Commission v Smith (1987) 15 FCR 327 by the Full Federal Court to the civil standard of proof, namely on the balance of probabilities. Neither party has an onus of proof (s 124(6) of the VE Act), and the Tribunal must act according to substantial justice, and the substantial merits of the case, without regard to legal form and technicalities (s 119(1)(g)).
49. The time at which the assessment under s 24(1)(c) is to be made is not the date when the veteran gave up work; the veteran’s entitlement should be considered at the time of application to the primary decision-maker, and an assessment must be made of the rate of pension payable from time to time during the assessment period, being the period between the date when the application was lodged and the date when it is determined: ss 19(5c) and 19(9) of the VE Act ; Repatriation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996.
50. As regards the first question in Flentjar, the reference to “remunerative work which the veteran was undertaking” is to be read as a reference to the type of work which the veteran had previously undertaken, and not to any particular job: Re Banovich and Repatriation Commission (1986) 9 ALN N223. The remunerative work does not have to be the last work undertaken by the veteran (unless the veteran is over 65 at the time of a claim or application): Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J. Finally, the remunerative work must be substantial remunerative work which the veteran has effectively performed: Starcevich (supra) at 225; Sheehy v Repatriation Commission (1996) 66 FCR 569.
51. In this case, the remunerative work that the applicant had been carrying out was security and supervision work. That work was being phased out and in the course of the hearing it was agreed that his work could be classified more broadly as security or manual and light labouring work. His work was repetitive work involving sitting and standing, and some minor degree of supervision of others and a level of physical activity when checking vehicles. The applicant had a limited education and when the security work finished his skills were such that manual, light labouring work and production line work were appropriate for his skill level.
52. With respect to the second question in Flentjar, it is agreed that the applicant, by reason of his war-caused conditions, is prevented from continuing to undertake the type of work which the Tribunal has found is relevant. The Commission concedes that s 24(1)(b) is satisfied. The applicant is prevented from continuing to participate in any form of light labouring work or any form of manual work because off his war-caused disabilities. I am satisfied from the evidence before me that, at least since the date of his application for an increased pension, the applicant has been prevented from continuing to undertake the type of remunerative work which he had previously undertaken.
53. The third question in Flentjar is the contentious issue the in this case. This is referred to as the “alone test” and is contained in ss 24(1)(c) and 24(2)(a)(i) of the VE Act. The cases establish that the word “alone” as it appears in the relevant section requires a practical decision as to whether the applicant's loss of remunerative work is attributable to his service related incapacities, and not to something else as well; and any factor having employment consequences which plays a part in his inability to work or to obtain and hold remunerative employment, is sufficient to displace his case for pension at the special rate (Cavell v Repatriation Commission (1988) 9 AAR 534, Forbes v Repatriation Commission (2000) 101 FCR 50 at [33]).
54. The correct approach to the “alone test”, and the potential relevance of other factors which might prevent a veteran from continuing to undertake the relevant remunerative work, was further explained in Repatriation Commission v Hendy (2002) 76 ALD 47 at [36] - [37] as follows:
“[36]The tribunal’s task was to assess what the veteran probably would have done, if he had none of the service disabilities during the assessment period. The requirement to consider ‘remunerative work that the veteran was undertaking’ does not mean a particular job with a particular employer but the substantive remunerative work that the Veteran had undertaken in the past. That is the exercise that the tribunal undertook. The tribunal was not bound to limit its consideration to the last employment that the veteran actually undertook.
[37]The consideration of what the veteran probably would have done, absent the service disabilities, is a hypothetical exercise. The language of s24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. … (H)aving considered any or all of the factors which may have contributed to a veteran’s incapacity, the tribunal is then required to determine whether it is the veteran’s war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work.”
55. The Commission contends that although it is the applicant's war-caused conditions that prevent him from continuing to undertake work, it is also the fact that his security job was outsourced and would no longer be available to him that has resulted in him leaving his employment. They also contend that his shoulder disability cannot be disregarded and was one of the factors that led to him ceasing his employment. They also contend that the availability of a VSP was another influencing factor in him leaving his employment.
56. The applicant contends that his war-caused disabilities alone are the reason that he left his employment. The fact that there was a VSP available at the time was a bonus, but was not the reason that he left his employment. He had hoped to continue to work until retirement age and he would have taken on work in the plastics plant had his war-caused disabilities not prevented him from doing so.
57. Work was being offered to the applicant that would enable him to continue at Holden, were it not for his accepted disabilities. Holden had an obligation to accommodate his shoulder limitations that arose out of his work at Holden. It was Mr Schuit’s evidence that Holden would have accommodated the applicant's shoulder disabilities, but they could not accommodate the limitations on the applicant that arose from his war-caused conditions nor did they have an obligation to do so.
58. Although one job was being phased out, another job in the general category of jobs that the applicant was capable of doing was being offered, but his chronic back condition and the ever increasing levels of pain that he was suffering meant that he could not do the work that was being offered. The fact that he was lucky enough to have a VSP available to him at that particular time was good fortune and it was not a reason for him leaving his employment. He had declined to take up the offer of a VSP over a number of years.
59. The Tribunal makes the following further findings:
·Were the applicant free of incapacity from his war-caused disabilities, he would have remained in employment on the production line at Holden.
·He was keen to remain employed because of his financial obligations and he had elected not to take a VSP when many other employees had done so because of his determination to continue as long as he could in the workforce.
·He hoped to work on the plastics production line and spent some time ascertaining whether his back limitations could be accommodated within the framework of that work. It was impossible for his employer to accommodate his war-caused disability in any position that remained available at Holden at the time.
·His shoulder disabilities were minor, could be accommodated at Holden and had no significant impact on his ability to continue working there as Holden could adapt any position to accommodate that disability.
·The availability of a VSP did not influence in any way his decision to leave Holden.
·His shoulder impairment did not have any significant impact on his ability to work and did not impact on his decision to leave his employment.
·His war-caused disabilities were the reason he was finally obliged to leave his employment.
60. The Tribunal finds that the applicant did not cease to engage in work for reasons other than his war-caused incapacity.
61. The fourth question in Flentjar is whether, if the applicant has been prevented by his war-caused conditions alone from undertaking remunerative work, he has suffered a loss of wages or earnings that he otherwise would not have suffered.
62. It is conceded that the applicant satisfies this requirement in that his war-caused conditions prevent him from undertaking remunerative work.
63. Based on the Tribunal’s findings the applicant is eligible for a pension at the special rate from the date of his application, namely 23 August 2006.
decision
64. The Tribunal sets aside the decision under review, and in place of that decision, determines that the applicant is entitled to pension at the special rate provided for in s 24 of the VE Act with effect from 23 August 2006.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................
AssociateDate of Hearing 21 April 2008
Date of Decision 17 June 2008
Counsel for the Applicant Nicholas Floreani
Solicitor for the Applicant Tindall Gask BentleyAdvocate for the Respondent Adrian Crowe
DVA
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