Nettle and Repatriation Commission
[2006] AATA 948
•9 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 948
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/241
VETERANS' APPEALS DIVISION ) Re ROGER NEIL NETTLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy D G Jarvis Date9 November 2006
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 (Cth) with effect from 4 April 2003.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – rate of pension payable – special rate – applicant and his wife owned vineyards – vineyards operated by discretionary trust – applicant employed by trust – applicant incapacitated from continuing to work on vineyards – sale of two of three vineyards – held that superannuation contributions made on behalf of veteran as salary sacrifice constituted salary or wages – held that allocations by Trustee from income of Trust constituted earnings of applicant on his own account – applicant renounced his contingent beneficial interest in Trust – sale of vineyard property to son’s trust not on commercial terms or uncommercial sale – held that applicant suffered loss of earnings by reason of war-caused incapacity notwithstanding renunciation – decision under review set aside.
Veterans’ Entitlements Act 1986, s24(1)(c)
Cavell v Repatriation Commission (1988) 9 AAR 534
Counsel v Repatriation Commission (2002) 72 ALD 204
Jackman v Repatriation Commission, Federal Court, 30 June 1997, 521/1996
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Re Maloney and Repatriation Commission (1989) 17 ALD 292
Repatriation Commission v Braund (1991) 23 ALD 591
Repatriation Commission v Greenwood (1990) 22 ALD 289
Repatriation Commission v Smith (1987) 15 FCR 327
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
9 November 2006 Deputy President D G Jarvis Introduction
1. The applicant, Roger Neil Nettle, is a Vietnam veteran. He currently has accepted disabilities of post-traumatic stress disorder, alcohol dependence or alcohol abuse, bilateral sensorineural hearing loss, hypertension and keratosis pilaris and folliculitis of the buttocks. He also suffers from certain non-war caused disabilities which are not relevant to the present proceedings.
2. On 4 April 2003 Mr Nettle lodged a claim with the respondent for an increase in disability pension under the Veterans’ Entitlements Act 1986 (the “VE Act”). A delegate of the Repatriation Commission refused to increase his pension beyond the intermediate rate. This decision was affirmed on review by the Veterans’ Review Board (“VRB”) on 22 June 2005. Mr Nettle has applied to this Tribunal for review of the Commission’s decision.
3. Mr Nettle claims to be entitled to pension at the special rate under s 24 of the VE Act. The Commission acknowledges that he satisfies the first criterion under s 24 (namely, a determination of entitlement to a pension at a rate higher than 70 per cent of the general rate), and the second criterion (namely, an incapacity from war-caused conditions of such a nature as, of themselves alone, render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week). These criteria are contained in pars 24(1)(a)(i) and 24(1)(b) respectively of the VE Act.
4. The Commission has also conceded that Mr Nettle meets the “alone” test in par 24(1)(c), namely that he is, by reason of incapacity from his war-caused injuries alone, prevented from continuing to undertake remunerative work that he had been undertaking.
Issue for Determination
5. The only issue for determination is whether Mr Nettle satisfies the “loss” test in par 24(1)(c) of the VE Act, that is whether in consequence of his admitted incapacity from war-caused conditions alone he is suffering a loss of wages or earnings on his own account which he would not be suffering if he were free of that incapacity.
6. I have reached the conclusion that Mr Nettle has satisfied the loss test, and so is entitled to a pension at the special rate with effect from 4 April 2003, for the reasons set out below.
Legislation
7. Paragraph 24(1)(c) and par 24(2)(a) of the VE Act relevantly provide as follows:
“24(1) This section applies to a veteran if:
…
(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
…
(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; …”
If subsection 24(1) of the VE Act applies to Mr Nettle, he will be entitled under subsection 24(4) to a pension at the special rate therein provided.
Background
8. The following background matters were not in contention, and I make the following findings from the evidence of Mr and Mrs Nettle, and from documentary material before me.
9. Mr Nettle was born on 23 March 1947. In about 1983, he and his wife purchased a property in the general area of Cobdogla, near Barmera in South Australia. Mr and Mrs Nettle have lived on this property (“Vineyard 1”) at all relevant times. This property was developed for grape growing (with drip irrigation) in the late 1990’s. In 1984 Mr and Mrs Nettle purchased a second property from Mrs Nettle’s brother. This second property (“Vineyard 2”) was developed a year or two after Vineyard 1. In about 1995 a third property (“Vineyard 3”) was purchased as an operational vineyard with furrow irrigation. Mr Nettle was concerned that this vineyard had a saline water supply.
10. Mr Nettle and his wife were having trouble coping with running the vineyards. On one occasion, when he was working on Vineyard 3, he collapsed. As a result of his difficulties, Vineyard 3 was sold in 1998. At about this time Mr Nettle sought help from Dr M Ewer, a psychiatrist.
11. Not long after Vineyard 3 was sold Mr and Mrs Nettle set up the Nettle Vineyards Trust, a discretionary trust which received income from operating Vineyards 1 and 2. It was clear from Mr Nettle’s evidence that he has no understanding of his relationship with the Nettle Vineyards Trust, and he said that he has signed documentation on instructions from his wife on a number of occasions. Business matters relating to the Nettle Vineyards Trust were predominantly attended to by Mrs Nettle.
12. By about June 2000, Mr Nettle was no longer able to work more than 20 hours a week on Vineyards 1 and 2. By about May 2003 Mr Nettle was unable to continue working, even at the reduced level which had been accepted for the purposes of assessing his entitlement to an intermediate rate pension, and he ceased working altogether on the two remaining vineyards. A report from Dr Ewer dated 11 July 2003, included in exhibit R1 at T12, confirms that Mr Nettle was unable to work.
13. It is accepted by both parties that Vineyard 2 was sold in 2003 as a direct result of Mr Nettle’s inability to work. The vineyard was sold to a trust controlled by Shane Nettle, who is Mr and Mrs Nettle’s son. He currently helps Mr Nettle’s wife run Vineyard 1. According to Mrs Nettle, the sale price was $300,000, although the value of the vineyard was about $450,000, and she and her husband propose to make an adjustment in their wills in favour of their other children to make up for the benefit Shane has received. The parties also agreed that Shane will pay back the price to his parents when he has available funds to do so. As at the date of the hearing, Shane had only paid approximately $20,000 of the purchase price.
14. Mrs Nettle wishes to continue running Vineyard 1 as she has worked on properties all of her life, and she is a member of the third generation of her family to have done so.
The Family’s Financial Structure
15. Mr and Mrs Nettle’s accountant, a Mr Venning, gave oral evidence at the hearing. He has prepared the accounts of the Nettle Vineyards Trust, the accounts of a partnership between Mr and Mrs Nettle, namely the RN & JB Nettle partnership, and their individual tax returns, in respect of each year from and including the financial year ended 30 June 2003.
16. The Trustee of Nettle Vineyards Trust is Stinga Pty Ltd. Mr and Mrs Nettle are the shareholders and directors of Stinga Pty Ltd, as well as being the beneficiaries of the Nettle Vineyards Trust. However, by a deed of renunciation dated 1 July 2003 (exhibit A2) Mr Nettle irrevocably renounced any beneficial entitlement to the income or assets of the Nettle Vineyards Trust, and has not received any distributions from the Trust since the financial year ended 30 June 2003. Mrs Nettle also gave evidence that both she and her husband agreed that Mr Nettle should renounce his involvement in the Trust due to his illness and due to Mr Venning’s advice that there was no point in keeping Mr Nettle as a beneficiary of the Nettle Vineyards Trust because he had ceased working in 2003. Mr Venning said further in his evidence that there were other beneficiaries to whom the Trust could make distributions that were tax effective. However, I note that these matters would not explain the renunciation by Mr Nettle of his interest in the Trust; it would have been open to the Trustee simply to exercise its discretion so as not to make any distributions to him.
17. Mr Venning referred to the profit and loss statements of the Nettle Vineyards Trust for the 2001, 2002, 2003, 2004 and 2005 financial years. The figures showed a substantial decrease in grape sales from the 2004 vintage. As Mr Venning explained, the reason for this was the decrease in land owned by the Nettle Vineyards Trust following the sale of Vineyard 2 in 2003.
18. The accounts show that superannuation contributions were paid to Mr Nettle from the Nettle Vineyards Trust in each of the financial years from 1999 to 2005 inclusive. Mr Venning referred to those contributions as payments made in respect of earlier years when the Trust had insufficient funds available to make superannuation contributions to him. However, the Trust’s financial statement for the 2004 and 2005 financial years (exhibit R5) do not provide for debts in favour of Mr Nettle for unpaid salary owing to him. It appears notwithstanding Mr Venning’s explanation that the payments must have been treated as salary paid to Mr Nettle in the relevant years pursuant to a salary sacrifice arrangement, whereby a salary was paid for his benefit as superannuation contributions. The validity of any such arrangement having regard to Mr Nettle’s inability to work, and the basis of the advice which I assume Mr Nettle was given to enter into the salary sacrifice arrangement in the years after he ceased work, were not explored at the hearing. Mr Menzies, a chartered accountant, was called by the respondent to give evidence via telephone, and produced a report dated 31 July 2006 which is exhibit R4. I note that he described the superannuation contributions from the Nettle Vineyards Trust as salary sacrifice payments.
19. Mrs Nettle was called as a witness in order to clarify some of the figures in the accounts of the Nettle Vineyards Trust. I note that a management fee of $50,000 was credited to the Trust’s account in each financial year except 2003 pursuant to an agreement that family members had made to pay for services provided, no doubt after taking into account tax considerations. The management fee was not paid in 2003, because Mr Venning took over the preparation of accounts soon after the end of that financial year, and the relevant accounting entry had been overlooked during the transitional period before his involvement.
Contentions of Parties
20. Counsel for Mr Nettle, Mr Churches, contended that Mr Nettle’s war-caused incapacity had prevented him from working, and as a result Vineyard 2 was sold; the “pie”, being the total earnings of the Trust, was smaller; and Mr Nettle suffered a loss for the purposes of par 24(1)(c).
21. The advocate for the Commission, Mr Crowe, pointed out that par 24(1)(c) of the VE Act requires the veteran, and not the Trust, to suffer a loss of salary or wages or earnings by reason of the veteran’s incapacity from undertaking remunerative work. He contended that even though (as I have found) Mr Nettle’s inability to continue to work resulted in Vineyard 2 being sold and the Trust suffering a loss of earnings, this did not constitute proof that Mr Nettle himself had suffered a loss of salary or wages or earnings.
22. Mr Crowe also contended that the payment of wages, the allocation of income and the payment of superannuation contributions to or for the benefit of Mr Nettle over the years prior to the assessment period had not followed a regular pattern, and (except for the 2003 financial year) appeared to have been calculated by reference to the family’s tax position, rather than by reference to work carried out by Mr Nettle for the Trust.
23. He further submitted that Mr Nettle’s loss of income or earnings from the Trust had resulted from his having executed the Deed of Renunciation on 1 July 2003, being prior to the assessment period, and not from his having been prevented from continuing to work for the Trust by reason of his war-caused conditions.
Consideration
24. Under subsection 120(4) of the VE Act, the Tribunal must decide issues arising under par 24(1)(c) to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327. Neither party has an onus of proof (subsection 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 (par 119(1)(g)).
25. The time at which the assessment under par 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: subsections 19(5C) and 19(9) of the VE Act; Rehabilitation Commission v Braund (1991) 23 ALD 591; Jackman v Repatriation Commission (unreported, Federal Court of Australia, Tamberlin J, 30 June 1997, 521/1996).
26. As mentioned above, the only issue before me is whether Mr Nettle has suffered a loss of wages or earnings that he otherwise would not have suffered. I note that this question must be considered by reference to par 24(2)(a)(i), which provides in effect that in order to suffer a loss of wages or earnings, a veteran must not have ceased to engage in remunerative work for some reason other than the veteran’s incapacity from war-caused conditions. There is no suggestion that that subsection applies in the present case, and there is no corresponding “deemed no loss” provision applicable if the loss occurs for reasons other than the veteran’s incapacity from war-caused conditions. In other words, (except insofar as it is necessary to examine the veteran’s reasons for ceasing to engage in remunerative work) there is no “alone” test as far as the loss issue is concerned.
27. In the present matter, the potential loss suffered by Mr Nettle comprises a loss of his salary from the Trust, and the loss of distributions made by the Trustee in the exercise of its discretion to make allocations to the income beneficiaries of the Trust, which prior to 1 July 2003 included Mr Nettle. A failure or inability of the Trustee to make superannuation contributions on his behalf pursuant to a salary sacrifice arrangement would in my view mean that Mr Nettle would thereby suffer a loss of salary or wages, notwithstanding that the salary or wages would not otherwise have been paid direct to him.
28. The interpretation of the concept of loss of earnings on a veteran’s own account in the context of a farming partnership was considered in Counsel v Repatriation Commission (2002) 72 ALD 204. In that case the veteran’s last paid remunerative work was running a farming business in partnership with his wife. The partnership tax returns for the years 1986 to 1993 indicated that the business made a loss every year except for one, when it made a small profit. The Full Court of the Federal Court held that the Tribunal had erred in law in deciding that the veteran had not suffered a loss of earnings on his own account because of this, and the Tribunal should have held that the loss of gross income was a loss of earnings on his own account. The Court held that the expression “loss … of earnings on his or her own account” does not require a calculation of net earnings, that is gross earnings less expenses. It was further held that “earnings” in a partnership context is a reference to the money brought into the partnership, that is, to its cash flow, through the personal exertion of the veteran on his or her own account.
29. I consider that a similar approach should be adopted where a business is being operated by a discretionary trust, if the allocation to the veteran comes out of the earnings of the trust resulting from the remunerative work undertaken by the veteran. The position would be otherwise if the allocation to the veteran came from passive investment earnings of the trust that were unrelated to the veteran’s work as an employee of or consultant to the trust.
30. Although Mr Nettle had continued to work during the 2003 financial year he was not paid any salary by the Trust in that financial year, probably because the earnings of the Trust were reduced by the non-payment of the $50,000 management fee in that year (see paragraph 19 above). In each of the two preceding financial years Mr Nettle had been paid a modest amount of $4,800 (see Schedule A to exhibit R4). However, superannuation contributions were made on his behalf in the 2004 and 2005 financial years (as well as in the 2001, 2002 and 2003 financial years). Mr Venning said that he had not prepared the 2006 financial accounts, and I am therefore unaware of the situation in that financial year.
31. In the 2003 financial year, Mr Nettle received a nominal allocation from the Trust of $199, and since then he has not received any allocations of income from the Trust. He could not have received any such allocations in any event, because he had renounced any interest in the Trust.
32. Mr Nettle’s action in renouncing any interest in the Trust has complicated his claim. It has given rise to the Commission’s contention that any loss suffered by Mr Nettle has not arisen from his war-caused incapacity, but he has in effect prevented himself from receiving allocations from the Trust by his own intervening action. Indeed, it was suggested on behalf of the Commission that it should be inferred that the deed of renunciation was entered into as a contrivance to enable Mr Nettle to demonstrate that he had suffered a loss of earnings and so is qualified to receive pension at the special rate. It was further said on behalf of the Commission that if Mr Nettle had not taken this action, it is unlikely that the Commission would have contested his claim.
33. In answer to the Commission’s submissions counsel referred to Re Maloney and Repatriation Commission (1989) 17 ALD 292, where this Tribunal considered an inter-family transaction on non-commercial terms. In that matter, the veteran was compelled by his war-caused incapacity to give up his farming activities. He agreed to sell his farming properties to his children, for a purchase price payable on demand. The veteran told his children that they did not have to make any repayments. The Tribunal rejected an argument by the Commission that the veteran’s loss of earnings was due to his failure to demand repayments of the amounts owing by his children rather than his incapacity. The Tribunal decided that there was nothing in par 24(1)(c) which required a veteran to manage his or her affairs, property or assets to obtain the best commercial advantage lest the veteran be disqualified from obtaining a pension to which he or she would otherwise be entitled. The Tribunal also said that there was no apparent legislative intention to introduce an assets test or a means test into par 24(1)(c).
34. Whilst I accept that the decision in Maloney is distinguishable on its facts in that it did not entail the veteran entering into a deed of renunciation, I do not find it necessary, in view of the conclusions I have reached, to determine whether I should draw the inference postulated by the Commission from Mr Nettle’s act of entering into the deed of renunciation. However, I observe that transactions entered into solely for the purposes of creating some entitlement to a pension which would otherwise not exist are likely to be critically examined, and if they are a sham, they will no doubt be disregarded, in accordance with well established legal principles.
35. As regards the loss of distributions from the Trust, par 24(1)(c) entails determining whether this arose by reason of Mr Nettle’s incapacity from his war-caused conditions. In Cavell v Repatriation Commission (1988) 9 AAR 534 Burchett J, in discussing the “alone” test, said at [539], that the true task of the Administrative Appeals Tribunal, in applying the “alone” test in par 24(1)(c) of the VE Act, was “to make a practical decision whether the veteran’s loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide”. Mr Crowe submitted that the second sentence of this dicta was equally applicable in considering the “loss” test in par 24(1)(c).
36. A common sense approach to issues of causation where the claimant engaged in an act which was said to have severed a causative link was also referred to by Kirby J in Roncevich v Repatriation Commission (2005) 222 CLR 115. His Honour said, at [82]:
“As with all issues of causation in law, it is necessary to identify the limits of the propounded obligations. Such limits are usually drawn in a commonsense way by reference to any considerations of policy reflected in the language and purposes of the governing law. The prior existence of facts and circumstances does not, as such, make those facts and circumstances causally relevant, in a legal sense, for an event that follows in time. In every case, it is necessary to postulate an outer boundary of liability.”
37. The “common sense” approach in analysing the facts of each case was also referred to in a well-known High Court case cited by Kirby J, namely March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, at 515 and 522-523.
38. In considering the application of par 24(1)(c), it is also necessary to determine as best I can the hypothetical question of what Mr Nettle probably would have done if he had none of his service disabilities: see Repatriation Commission v Smith (supra) at 337.
39. There was no direct evidence before me as to this issue. It is clear that Mr Nettle and his family had established various entities so as to minimise their liability for income tax. I accept the submissions of Mr Crowe referred to in paragraphs 21 and 22 above, and find that the quantum of the payments to Mr Nettle from the Trust were not directly related to the extent of the work he had undertaken for the Trust in each of the years of income prior to the time when he was prevented from working. It is also apparent that the payments included allocations made to him as a result of the exercise of the Trustee’s discretion as to the allocation of the Trust’s profits, and it is likely that the amounts of those allocations were determined by tax considerations.
40. Nevertheless, prior to his being incapacitated, there was an established pattern of behaviour where Mr Nettle was working in the vineyards, and was paid varying rates of wages (either directly or through salary sacrifice), and was receiving varying allocations from the Trust out of its earnings. When he applied for an increase in pension Mr Nettle was 56 years of age. In the ordinary course of events, he could be expected to have continued to work for a number of years. Further, it is clear from her evidence that Mrs Nettle has a strong desire to continue her family’s tradition of working on the land, and she would have wanted Mr Nettle to continue to work on the two vineyards that they retained. I am satisfied that if Mr Nettle had not been incapacitated from his war-caused conditions, he would have continued to work on the vineyards, and Vineyard 2 would not have been sold, and the significant reduction in the Trust’s earnings as a result of that sale would not have occurred. As a result, the amount of income available to the Trust for the payment of wages to those who had worked on the vineyards, or for distribution to the Trust’s contingent beneficiaries, would have been correspondingly greater. I am further satisfied that if Mr Nettle had not been incapacitated, amounts would have been allocated to him by the Trustee during the assessment period, and that those amounts would have been derived at least in part from (although not necessarily directly related to the extent of) the remunerative work undertaken by him for the Trust. Further, on the evidence of Mrs Nettle, which I accept, it is also likely that Mr Nettle would not have renounced his interest in the Trust if he had not been incapacitated from continuing to work on the vineyards. I accordingly conclude that Mr Nettle suffered a loss of earnings on his own account by reason of his war-caused disabilities.
41. On the face of it, it is not clear that Mr Nettle has suffered a loss of wages or salary by reason of his incapacity from his war-caused conditions, because the Trust has continued to make superannuation contributions for his benefit. However, once again, if Vineyard 2 had not been sold and Mr Nettle had continued to work in the vineyards, it is likely that the Trust’s earnings would have been significantly greater, and that some wages would have been paid directly to him as had occurred in previous years, and to the extent that the increased earnings were not wholly paid to him as wages, it is likely that the balance would have been paid as additional superannuation contributions. I am therefore also satisfied that he has suffered a loss of wages as a result of his war-caused disabilities.
42. There was some evidence before me as to the significant reduction in grape prices in the 2006 financial year. This is another factor which would no doubt have caused Mr Nettle to suffer a loss of salary or wages or of earnings on his own account even if he had not been incapacitated. However, it was not suggested that this factor would have prevented the Trust from making any payments to Mr Nettle if he had not been incapacitated and if Vineyard 2 had been retained. In any event, this factor is only relevant to the latter part of the assessment period, and would not have produced any loss earlier in the period.
43. It has occurred to me that there is a further reason why Mr Nettle has suffered loss, and that is because he sold Vineyard 2 to his son’s trust on non-commercial terms. If Mr and Mrs Nettle had sold the vineyard for its full commercial value, and the proceeds of sale had been paid in full and had been invested, his earnings from those investments might well have equalled, if not exceeded, the earnings that Mr Nettle would have received had he and his wife continued to hold both vineyards and if he had continued to work for the Trust as the operator of the vineyards. However, there was no evidence before me as to the comparative earnings of investments compared with the likely earnings of Vineyards 1 and 2.
44. In any event, par 24(1)(c) refers to a loss of “salary or wages, or of earnings on (a veteran’s) own account” suffered by a veteran in circumstances where he or she is “prevented from continuing to undertake remunerative work”. The section is accordingly concerned with loss from inability to undertake remunerative work. It does not involve a comparison between the veteran’s loss of salary or wages, or of earnings on his or her own account, with the passive income which might be obtained by investing the proceeds of sale of the veteran’s business: see Repatriation Commission v Greenwood (1990) 22 ALD 289 at 294.
45. For all of the above reasons, I conclude that the applicant has satisfied the loss test in par 24(1)(c) of the VE Act, and that that is the position notwithstanding other reasons for his having suffered loss.
Decision
46. 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 (Cth) with effect from 4 April 2003.
I certify that the 46 preceding paragraphs are
a true copy of the reasons for the decision
herein of Deputy D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 14 and 15 September 2006
Date of Decision 9 November 2006
Counsel for the Applicant Mr S C Churches
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe
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