McKenney v Victorian WorkCover Authority
[2021] VCC 1674
•3 November 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-20-05258
| SHANE McKENNEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2021 | |
DATE OF JUDGMENT: | 3 November 2021 | |
CASE MAY BE CITED AS: | McKenney v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1674 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – left ankle impairment – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Ms J Frederico | Arnold, Thomas & Becker |
| For the Defendant | Mr P Elliott QC with Mr S Scully | Minter Ellison |
HER HONOUR:
Introduction
1Plastering is the only occupation that Mr McKenney has known since he left school in Year 10 and commenced his plastering apprenticeship. On 26 January 2018, nearly 19 years after he started that apprenticeship, Mr McKenney fell from a wooden plank while hanging a plastering board, severely fracturing his ankle. The bone did not fuse. Despite five surgeries he continues to suffer chronic pain and dysfunction in his ankle.
2It is not in dispute that this injury renders Mr McKenney incapable of returning to his previous trade. It is also not in dispute that the pain and suffering consequences of this injury are serious.
3The sole issue in this proceeding is whether Mr McKenney’s ankle impairment is a serious injury with respect to loss of earning capacity consequences. Mr McKenney says that it is, and that he is either totally incapable of working in any suitable employment; or that he is capable of working in suitable employment only part time, and that as a result he has suffered a loss of earning capacity of at least 40 per cent. The defendant says that it is not, and points to a number of roles which it says Mr McKenney could perform.
4For the reasons which follow, I have concluded that Mr McKenney has suffered a serious injury with respect to loss of earning capacity. I will grant leave to commence proceedings with respect to damages for both pain and suffering and economic loss.
Relevant legal principles
5To bring proceedings for damages for economic loss, Mr McKenney must satisfy the Court that he has suffered a serious injury with respect to loss of earning capacity.[1]
[1] Workplace Injury, Rehabilitation and Compensation Act 2014 (“WIRCA”), s335(3)
6This requires Mr McKenney to satisfy the Court that:
(a) the loss of earning capacity consequence he has suffered is:
“when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable”[2];
(b) as at the date of the hearing,[3] he has a loss of earning capacity of 40 per cent or more measured by comparing:
(i)his gross income from personal exertion which he is currently capable[4] of earning in suitable employment; and
(ii)the:
“gross income (expressed at an annual rate) that [Mr McKenney] was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after injury as most fairly reflects [Mr McKenney’s] earning capacity had the injury not occurred”;[5]
[2] WIRCA, s325(2)(c)
[3] Or date of decision, but there is no significant difference.
[4] Or is actually earning, but Mr McKenney is not actually earning income from personal exertion.
[5]Section 325(2)(e)(i) and s325(2)(f) of the WIRCA
(“the current loss of earning capacity test”); and
(c) Mr McKenney will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;[6] (“the permanent loss of earning capacity test”).
[6] Section 325(2)(e)(ii) of the WIRCA
7The current loss of earning capacity test requires the Court to select the figure that most fairly reflects Mr McKenney’s earning capacity had the injury not occurred from one of the following:[7]
(a) the gross income he was earning from personal exertion;
(b) the gross income he was capable of earning from personal exertion;
(c) the gross income he would have earned from personal exertion; or
(d) the gross income he would have been capable of earning from personal exertion,
during the period from three years before Mr McKenney’s accident to three years after the accident.
[7]Herald & Weekly Times Ltd v Jessop [2014] VSCA at paragraph [42], applying Acir v Froster Pty Ltd [2009] VSC 454
8The Court is then required to compare that figure with Mr McKenney’s actual current income earning capacity in order to determine whether there has been a 40% or more reduction in income earning capacity.
9The permanent loss of earning capacity test does not have the same statutorily prescribed formula for determining Mr McKenney’s without injury earning capacity.
10Section 335(5)(b) of the WIRCA provides that for the purposes of proving a loss of earning capacity, a worker bears the onus of proving—
(a) any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment; and
(b) the extent of that inability.
General findings on symptoms and limitations
11Mr McKenney presented as an honest witness, who did his best to answer the questions posed to him truthfully. He was clearly not a sophisticated man and his answers were given without any attempt to tailor his answers to suit his own personal interest in the proceeding. I accept his evidence that he suffers constant aching in his left ankle, with regular flare ups of ankle pain, and that his ankle collapses under him at least once a day. I accept that he takes up to six Panadol per day, plus one or two Endone 5-milligram tablets (depending on the severity of this pain). I accept that this injury has worsened his mental state and that as a result he is in a low mood and anxious most of the time. I accept that he cannot comfortably stand for more than 10 minutes, or walk for more than 1 kilometre, or sit for more than two hours, particularly if he cannot elevate his foot; that he struggles to walk over uneven ground or down stairs; and that he is unable to do heavy lifting. I accept that his sleep has been affected due to the pain and he takes Mirtazapine for this.
12I observed video surveillance of Mr McKenney walking in the city in Melbourne. The footage was less than 10 minutes. He walked with a slight limp at times. I saw nothing in this video which was inconsistent with Mr McKenney’s evidence.
13In light of these findings, I accept the physical restrictions on employment proposed by Dr Joseph Slesenger, the specialist occupational physician called by the plaintiff:
(a) no push, pull, carry or lift over 5 kilograms;
(b) avoid squatting or kneeling;
(c) avoid walking on uneven ground;
(d) avoid prolonged standing;
(e) avoiding climbing up and down ladders; and
(f) limited climbing of stairs.
14Aside from the weight limit (5 kilograms rather than 20 kilograms), these restrictions are not that different to the restrictions proposed by Dr Umberto Boffa and Dr Gary Davison, the occupational physicians called by the defendant.
15I found the report of Ms Erin Williams particularly helpful when assessing Mr McKenney’s suitability for particular roles. In reaching her conclusions, she thoroughly considers the demands of each role and compares those demands with Mr McKenney’s physical capacities as well as his experience, qualifications and skills. This can be contrasted with the opinions expressed by each of the three occupational physicians, which contain little more than an assertion that Mr McKenney can or cannot perform a role. One is left to deduce the reason for this opinion having regard to the demands of the role and the physical limitations they set. The IPAR reports tendered by the defendant provide a useful summary of the demands of each role. But as a general proposition, I found that IPAR’s analyses of Mr McKenney’s skills and capacities were not as precise, detailed or realistic as those of Ms Williams.
16The defendant submitted in opening that the plaintiff was not making a real effort to find work. To the contrary, Mr McKenney has taken it upon himself to make contact with two local employment agencies and (when those agencies were unable to assist him) to seek employment through SEEK, without the assistance of a vocational rehabilitation consultant or other employment agency. In the course of doing so, he has applied for a number of roles. Mr McKenney said in cross-examination, that if he were offered any of those roles, he would have given it a go. It was quite clear from his evidence that Mr McKenney was desperate to work, both because he was currently not receiving any income (his WorkCover payments having ceased and Centrelink payments not yet having started) and also because he recognised the importance of work to his mental health. I do not think anything turns on the fact that he chose to stop attending appointments with the IPAR consultant, who was retained by the defendant, after his WorkCover payments ceased. In the context of Mr McKenney’s other attempts to obtain employment, it was plainly not indicative of an unwillingness to seek employment.
17The defendant then submitted in closing that Mr McKenney’s job applications should be treated as an admission that the plaintiff could work. I do not accept that submission. If anything, Mr McKenney was overly optimistic in his capabilities and willingness to try roles that were not realistically within those capabilities. The best example of this is the role of patient transport officer. That role was described in an IPAR Labour Market Analysis Report, tendered by the defendant, as having demands which included “[s]edentary to very heavy physical demand level”; “frequent walking and standing”; and “[frequently necessary] [b]ending, squatting, crouching or kneeling”.[8] This role was quite plainly not within the specific limitations recommended by either Dr Slesenger, Dr Boffa or Dr Davison. Notwithstanding this, with the support of IPAR, his general practitioner and his physiotherapist, the plaintiff completed a Certificate III in Non-Emergency Patient Transport, funded by the defendant, with a view to retraining for this role. It was only partway through the course that Mr McKenney realised that he could not perform the inherent requirements of this role.
[8]Defendant’s Court Book (“DCB”) 45-46
18It was apparent that Mr McKenney had limited understanding of many of the roles under consideration or what those roles would entail, but had a desire to work and a willingness to give anything a go. It would not be reasonable to treat this enthusiasm as an admission as to his capacities, particularly in a context where he was in serious financial difficulty as a result of the combination of the cessation of WorkCover payments and the delays in obtaining Centrelink payments. To the extent that Mr McKenney’s evidence as to whether he has the experience, qualifications or skills to perform particular roles conflicts with the evidence of Ms Williams, I prefer the evidence of Ms Williams.
19A number of the roles suggested by the defendant were for “white collar” or clerical work. Some required completion of a Certificate IV, two even required a bachelor degree. Mr McKenney was plainly an unsophisticated man of limited education and vocabulary. He had never written any significant report. His typing skills were very limited. He required a six-to-eight week course to learn basic word processing and emailing skills. He managed to complete a Certificate III in Non-Emergency Patient Transport, but struggled to do so, and required assistance from family, teachers and other students. At one stage in his cross-examination he appeared to agree that he had also completed a Certificate III in Occupational Health and Safety, but there is no other evidence of this and I think this was a result of him misunderstanding the question. In any event, he has never completed a Certificate IV. It would not be reasonable to expect Mr McKenney to complete anything more advanced than a Certificate III in order to retrain for a new role. He is not suited for any role that requires significant computing, typing or writing skills.
20As to Mr McKenney’s without injury earning capacity, Senior Counsel for Mr McKenney submitted that I should use the amount that Mr McKenney would have earned, on the date which is three years after his injury, if he had not been injured. Senior Counsel for Mr McKenney submitted that Mr McKenney would have (if not injured) moved to the city and found work as a commercial plasterer or domestic plasterer and that I should use one of these rates for Mr McKenney’s without injury earning capacity.
21In my view, Mr McKenney’s evidence in this regard was aspirational and optimistic. In any event, as Senior Counsel for the defendant correctly pointed out, the only evidence in relation to the rates paid to commercial or domestic plasterers is for a period more than three years after the injury. Having said that, I do accept Senior Counsel for Mr McKenney’s submissions that the amount Mr McKenney actually earned in the years immediately before the accident do not fairly represent his income-earning capacity. His income-earning capacity at that time was severely impacted by his drug addiction, which he has since overcome. He was also working for a family member, so the transaction was not at arms-length.
22The best evidence of the rate which Mr McKenney was capable of earning, but for his injury, was the arms-length rate he was receiving from Peter Leitner in 2015, of $42.00 per hour. I accept that, but for his injury, he would have been able to earn this rate on a full-time (40 hour) basis once he recovered from his drug addiction and within the three years after the date of injury. This gives a without injury earning capacity of $1,680 ($87,360 per annum). Therefore, to satisfy the current loss of earning capacity test, Mr McKenney must show that he currently has an income earning capacity of no more than $1,008 ($52,416 per annum).
23In relation to the permanent loss of earning capacity test, I am not bound by the precise statutory formula for calculating without injury earning capacity. Nevertheless, I find that $1,680 per week ($87,360 per year) is a reasonable estimate of the amount Mr McKenney would be earning but for his injury. In view of the opinions of Mr McKenney’s treating orthopaedic surgeon that “He will … either stabilise or slowly become worse with osteoarthritis of the hindfoot”,[9] I accept that any current loss of earning capacity is permanent.
[9] Plaintiff’s Court Book (“PCB”) 69
Specific roles
24I turn, then, to consider each of the roles suggested by the defendant.
Patient transport officer
25Mr McKenney was plainly not capable of performing the physical requirements of this role, which could have very heavy physical demands and require frequent walking, standing, bending, squatting, crouching and kneeling.[10] Mr McKenney might also be required to perform CPR for 15 minutes in a kneeling position, which he said in oral evidence that he would struggle to do because of his ankle issue. Dr Slesenger and Ms Williams both said that he was not suited to this role. Dr Boffa said that he anticipated this employment option would not be successful. It appears from the IPAR documents tendered in evidence that IPAR initially supported Mr McKenney working in this role, although subsequently it was contended that IPAR always had concerns the role was not within his capacities. Only Mr Davison said that he was suited to the role.
[10] DCB 45
Occupational health and safety officer
26This role was sedentary, but required frequent standing and walking within the office and at employment sites. It also required at least a Certificate IV in Occupational Health and Safety, but marketability would be improved with a diploma or degree.[11] I accept Dr Slesenger and Ms Williams’ opinion that Mr McKenney lacked the skills to complete a Certificate IV. I also accept that the frequent standing and walking at sites (including on stairs and on uneven ground) would be outside Mr McKenney’s physical capacities.
[11] DCB 50
Dispatch and receiving clerk
27This role was sedentary to light and requires employees to frequently walk or stand about the work area to verify cargo and examine shipping documents and bending, squatting or crouching may be required for lifting tasks and inspection of goods. It also required frequent sitting at a computer workstation while completing clerical tasks.[12]
[12] DCB 52
28I accept Ms Williams’ opinion that the frequent walking and standing and the squatting or crouching are outside Mr McKenney’s physical capacities. I also accept her opinion that Mr McKenney lacked the skills to perform the computer and clerical aspects of the role (even with retraining). Her views are supported by Dr Slesenger. I note that Mr McKenney gave evidence that he might possibly be able to do this role on a part-time basis. I prefer the views of Ms Williams.
29If I am wrong about that, I would have found that, in view of the walking, standing, squatting and crouching required, Mr McKenney could not reasonably be expected to perform the role for more than half time (i.e: four hours per day). The median weekly full-time income for the role is $1,100. Half of this would be $550. This is less than 60 per cent of Mr McKenney’s without injury earning capacity.
Quality assurance officer
30This role required standing and walking frequently about processing areas collecting samples and measuring and determining conformity to specifications. It may also require bending, squatting, crouching or kneeling.[13] I accept Ms Williams’ opinion that, although he had the relevant skills and experience, he could not meet the physical requirements of the role.
[13] DCB 54
Sales assistant
31This role required frequent standing and walking. Bending, crouching and squatting may also be required.[14] I do not accept (as a universal proposition) Ms Williams’ view that Mr McKenney would lack the skills to perform this role. In a trade-based role, his prior experience as a plasterer and pleasant manner might overcome his lack of sales experience. However, I do accept Ms Williams’ views that Mr McKenney would not meet the physical requirements of the role. The frequent standing and walking required, as well as lifting carrying, bending and climbing (for example to restock shelves) are beyond his physical capabilities. In any event, the median weekly income for this role is $850,[15] which is less than the required threshold, even full time.
[14] DCB 105
[15] DCB 104
32Two specific sales assistant roles were relied upon, both of which Mr McKenney had actually applied for in recent months. The first was the role of a pharmacy assistant. This required standing for the majority of the shift, frequent walking, moderate squatting and kneeling.[16] I accept this role was outside Mr McKenney’s physical capacities and also his skills. Ms Williams’ views in relation to this are supported by both Dr Slesenger and Dr Boffa.
[16] Defendant’s Supplementary Court Book (“DSCB”) 9
33The second was retail sales assistant at a jewellery store. This role was likely to require frequent standing and walking and also possible bending, squatting and crouching.[17] I accept Ms Williams’ views that this role was outside Mr McKenney’s physical capacities and also his skills.
[17] DSCB 11
Storeperson
34This role required medium physical demand with occasional heavy work. It required employees to sit, stand and walk frequently. It required squatting or crouching movements. I accept Ms Williams’ opinion that this role was outside Mr McKenney’s physical capacities.
35During cross-examination, Mr McKenney was asked whether he could perform the role solely of forklift operator, which was one of the tasks listed as performed by a storeperson. Mr McKenney said that he thought that was something he could do. However, Mr McKenney had never previously driven a forklift and it was apparent that he had no real understanding of what was required. The role of forklift driver had not previously been raised and was not the subject of any expert evidence. Even if it were within Mr McKenney’s physical capacities, the significant pain medication he is on may well prevent him from operating such machinery. There is not sufficient evidence to raise forklift operator as a possible suitable role to be considered in this application.
36In any event, the median weekly income for the role of store person is $927, which is less than the required threshold, even on a full-time basis.[18]
[18] DCB 107
Sales representative
37This role is sedentary to light and requires frequent sitting; and frequent standing and walking on sales trips.[19]
[19] DCB 110
38Ms Williams explains that there are two forms of this role. There are office-based sales roles which are likely to be largely telephone based and require strong computer skills. I accept Ms Williams’ opinion that Mr McKenney would lack the skills to perform this role and that his ongoing pain may also affect his concentration and attention to detail, which may affect his accuracy in processing customer information and orders.
39There are also more active sales roles. I accept that these roles are likely to require extended periods of walking, standing, bending and reaching, which would be outside Mr McKenney’s physical capacities.
Stock clerk
40This role is sedentary to light, but requires frequent walking and standing about the work area to verify cargo and examine shipping documents. Employees also frequently sit at computer workstations to complete clerical tasks. Bending, squatting or crouching may be required occasionally.[20]
[20] DCB 116
41I accept Ms Williams opinion that a stock-clerk role which required frequent walking and standing would be outside Mr McKenney’s physical capacities and that he would not have the skills for a more sedentary, computer-based, role.
Counsellor drug and alcohol
42Mr McKenney gave evidence that he would not be suited for this role because of his prior history as a drug addict and also because his father had committed suicide. In any event the role requires a Certificate IV, which I accept he does not have the skills to complete.
43The defendant did not press this role as suitable for Mr McKenney. I agree.
Community worker
44Again, Mr McKenney said that he would not be suited for this role because of his prior history. The role also requires a Certificate IV.
45The defendant did not press this role as suitable for Mr McKenney. I agree.
Pathology courier
46This role involves picking up pathology samples from collection centres, medical practices and hospitals, and delivering them to the pathology laboratory. It requires frequent standing and walking and constant driving throughout the day.[21]
[21] DCB 200
47Although Mr McKenney can drive for up to two hours without needing a break to move his ankle, I accept his evidence that frequent getting in and out of a vehicle over the course of the day would exacerbate his ankle pain. I also accept that the role is likely to require Mr McKenney to negotiate stairs and ramps at the collection sites, which he particularly struggles to do. I also accept that it is inadvisable – and potentially a public safety risk – for Mr McKenney to be driving throughout the day while on Endone, which can leave him feeling “stoned”.[22] I accept that this role is outside Mr McKenney’s physical limitations.
[22] PCB 86
48In any event, the median weekly income for this role is $900, which is less than the required threshold, even on a full-time basis.[23]
[23] DCB 200
Phlebotomist
49Each of Dr Slesenger, Ms Wiliams and Dr Boffa express the view that the role of phlebotomist (the person who actually takes blood samples and the like) would be unsuitable for Mr McKenney because of the prolonged standing required. I agree.
Community services manager
50This role requires at least a bachelor degree in social work.[24] Mr McKenney lacks the skills to complete this qualification.
[24] DCB 203
Ticket seller
51According to IPAR, this role requires workers to constantly sit or stand at an office desk or counter issuing tickets, making bookings and carrying out cash handling transactions. It requires occasional walking about the office or outdoors.[25] I accept that this role would be outside Mr McKenney’s physical limitations. Even if he could constantly sit, he is unlikely, in a customer-facing role, to be able to perform the role with his leg elevated or to get up and move around regularly, which is what he requires to sit for prolonged periods of time. If I am wrong about this, the most he could reasonably be expected to perform this role is half time (four hours per day). The median weekly income for this role is $1,035. Half of this is $517.50, which is well below the required threshold.
[25] DSCB 7
52An advertisement was in evidence for a team member – Factory Cinemas Australia. Mr McKenney had applied for this role. The advertisement stated that the successful application would be “responsible for day-to-day cinema operations including ticket & food and beverage sales, cash handling and keeping our cinemas looking fresh and clean”.[26] I accept the opinion of Ms Williams that this role is likely to require general cleaning duties (up and down the stairs of the cinema) which would be outside Mr McKenney’s capacities. Dr Slesenger supports this view. Dr Boffa’s view is that Mr McKenney could perform the role, but only if seated.
[26] DSCB 34
Retail banking services officer
53This role requires sitting or standing at an office desk or counter and carrying out manual or electronic transactions.[27] Mr McKenney does not have the physical capacities for a standing role. Even if the role were predominately seated, I accept the views of Ms Williams that he is not suited for this role. He lacks the computing and clerical and administrative skills. His demeanour and casual-speaking style, while appropriate and pleasant for a tradesman, are not likely to be considered appropriate in the context of a financial institution. I also accept that his ongoing pain and use of medication may impact on his concentration and accuracy in a manner which would be unacceptable when processing and recording financial transactions.
[27] DSCB 12-13
General clerk/administrative assistant
54This role is sedentary and requires constant sitting at a workstation and occasional standing or walking about the office. It requires a variety of manual and computerised data entry and word-processing tasks. It may require payroll, completing tenders for future businesses and general administration tasks.[28]
[28] DSCB 14
55I accept the views of Ms Williams (supported by Dr Slesenger) that Mr McKenney lacks the computer and typing skills to perform this role. He also lacks the skills for payroll or report writing.
Policy and planning manager/ industrial officer/organiser
56I accept that these roles require tertiary qualifications which are beyond Mr McKenney’s capacities.
Checkout operator/garden sales
57This is a sedentary role, which requires constant standing or sitting on a high stool or chair.[29] An advertisement was tendered for a role working in garden sales at a hardware store.[30] Mr McKenney had applied for this role. I accept the evidence of Ms Williams that this role would be outside Mr McKenney’s physical capacities as it would require prolonged standing, frequent lifting and occasional squatting and bending. Even if the role were able to be performed sitting on a high stool, Mr McKenney would not be able to elevate his leg or frequently change his position while working in the role full time. The most it is reasonable to expect is that he would perform this role half time (four hours per day). The salary for this role is $900.[31] Even full time, this is less than 60 per cent of Mr McKenney’s without injury earning capacity.
[29] DSCB 16
[30] DSCB 45
[31] DSCB 16
Conclusion
58Mr McKenney requires a role which is both light and specifically does not require frequent standing or walking, or any regular crouching, squatting or kneeling. If the role is to be seated, he requires the opportunity to elevate his leg and change his position. He does not have the necessary skills for a clerical or computer-based role.
59Despite his obvious motivation to work and the assistance of IPAR for over two years, Mr McKenney has not been able to obtain any suitable employment in the almost four years since he was injured. The defendant has suggested numerous roles. I have found that none of these roles are suitable for Mr McKenney, whether because of his physical limitations or his skillset, or both.
60It is not necessary for Mr McKenney to exclude all possibility that he will find employment in the future. It is only necessary that I be satisfied, on the balance of probabilities, that the current loss of earning capacity and the permanent loss of earning capacity tests are met. I am satisfied that they are met. For completeness, I am also satisfied that Mr McKenney has suffered a loss of earning capacity which is permanent and serious, in the sense that it can fairly be described as more than “significant” or “marked” and at least “very considerable”.
61I will grant leave to bring proceedings for damages for pain and suffering and economic loss and hear from the parties on the question of costs.
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Certificate
I certify that these 16 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 3 November 2021.
Dated: 3 November 2021
Jane Le
Associate to her Honour Judge Tran
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