Newell and Australian Postal Corporation - [2001] AATA 595

DECISION AND REASONS FOR DECISION [2001] AATA 595

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/1187,Q00/286

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JANETTE CLAIRE NEWELL
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date27 June 2001
PlaceBrisbane

Decision The Tribunal sets aside the decisions under review and in substitution therefor determines that the applicant, JANETTE CLAIRE NEWELL, be paid compensation pursuant to Sections 14, 16, 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 in accordance with the reasons for this decision. The Tribunal further directs that the respondent pay the applicant's costs as agreed between the parties or, failing agreement, as taxed by the District Registrar of the Tribunal in accordance with the Tribunal's Practice Direction.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
COMPENSATION – whether the meniscal tear suffered by the applicant was work-related – whether the knee degeneration from osteoarthritis was work-related – whether the causes of the degeneration could be sufficiently isolated to determine permanent impairment.
Safety Rehabilitation and Compensation Act 1988 ss 4, 4(a), 14, 16, 19(4), 24, 27
Re Prica and Comcare (1996-7) 44 ALD 46 at 51
Comcare v Amorebieta (1996) 66 FCR 83 at 96
Martin v Australian Postal Corporation (1999) FCA 655

REASONS FOR DECISION

27 June 2001 Deputy President DP Breen, Presidential Member

This was an appeal against two decisions of the respondent. The first decision dated 18 May 1999, which was affirmed on 13 October 1999, determined that Australian Postal Corporation was not liable to pay compensation for degeneration of the applicant's right knee. The second decision dated 3 November 1999, which was affirmed on 16 November 1999, determined that Australian Postal Corporation was not liable to pay compensation to the applicant under either Section 24 or Section 27 of the Safety Rehabilitation and Compensation Act 1988 for either of her knees.
The matter was heard by me in Ballina on 26 February 2001 and in Brisbane on 27 and 28 February 2001. The applicant, Janette Claire Newell, was represented by Mr M Perry of Counsel instructed by Messrs Mitchell Playford and Radburn. The respondent was represented by Mr N Polin of Counsel instructed by Messrs Hunt and Hunt. Written submissions were received from the applicant on 14 May 2001 and from the respondent on 18 May 2001. No request was received for an opportunity to present submissions in reply.
Oral evidence was received from the applicant; Stanley Owen Newell, the applicant's husband; Dr Simon Kinny, Orthopaedic Surgeon; Dr Peter Jackson, Muscular Skeletal Physician and Dr N McGill, Rheumatologist.
The following exhibits were taken into evidence:

Exhibit 1 "T" Documents
Exhibit 2 Report of Dr G Simpson dated 9.10.96
Exhibit 3 Report of Dr CJ Currie dated 25.5.99
Exhibit 4A Report of Dr P Jackson dated 11.10.99
Exhibit 4B Report of Dr P Jackson dated 22.7.00
Exhibit 5A Report of Dr JRS Ashwell dated 16.3.00
Exhibit 5B Report of Dr JRS Ashwell dated 23.5.00
Exhibit 6A Report of Dr SJ Kinny dated May 1999
Exhibit 6B Report of Dr SJ Kinny dated 26.11.99
Exhibit 6C Report of Dr SJ Kinny dated 4.8.00
Exhibit 7A Report of Dr JG Bodel dated 28.7.00
Exhibit 7B Report of Dr JG Bodel dated 7.8.00
Exhibit 8 Letter dated 28.6.99 from Lindsay Charnock, Australia Post
Exhibit 9 Three letters from Australia Post leading to Redundancy
Exhibit R10 Letter to Mrs Newell from Dr Kinny together with letter from applicant to Dr Kinny mentioned in Dr Kinny's letter
Exhibit 11 Final Monies Working Sheet dated 15.9.99
Exhibit 12 Reports of Dr C Amey
Exhibit R13 Report of Dr N McGill dated 27.11.00
Exhibit R14 Report of Dr N Thompson dated 3.2.00
Exhibit R15A X-ray reports – 20.1.97
Exhibit R15B X-ray reports – 29.1.97
Exhibit R16A Report of Dr R Kinny dated 17.10.96
Exhibit R16B Report of Dr R Kinny dated 3.2.97
Exhibit R17 Letter from Mitchell Playford and Radburn to Dr R Kinny dated 2.8.00
Exhibit R18A Letter from Mitchell Playford and Radburn to Dr R Kinny dated 1 10.8.00
Exhibit R18B Report of Dr R Kinny dated 11.8.00

Applicant's evidence

The applicant was born on 6 May 1954 and commenced her employment with the respondent in 1984. She worked as a relief cleaner for approximately 15 hours a week. In December 1998 she became a permanent cleaner and worked 30 hours a week.
The applicant stated that late in 1995 she started noticing swelling and aching in her knees at the end of the day. This was particularly after she had used the industrial floor polisher and the mop and bucket. The applicant said that she had not experienced any problems with her knees prior to working at Australia Post. She saw her local general practitioners, Dr Amey and Dr Simpson and she said she told them that the pain came on after a day of work. In Exhibit 2, Dr Simpson noted on 9 October 1996 under the heading "Associated Problems" that the applicant was overweight and she worked as a cleaner. She was sent to Dr Kinny, an Orthopaedic Surgeon who performed an arthroscopy in October 1996. She said she mentioned to him that she was a cleaner and used industrial machinery but they did not discuss her work any further.
Following the arthroscopy, the applicant took sick leave until 6 January 1997. She took this course as, prior to the operation, she had spoken to her supervisor, Mr John English, who told her to have the operation and to use sick leave as she had plenty of it. She said she did not think to put in a compensation form at that time as she was not told to do that, whereas she had been told to on the other occasions. Mr English was not called to challenge Mrs Newell's evidence as to the instructions he gave her.
In January 1997 she went back to work and the condition with her knees was worse. She had difficulty with her normal duties and had to strap the knee so that it did not swell too much. She carried on until 1998 but had four months off in 1997 as a result of a shoulder injury due to her work in August 1997.
She saw doctors in 1998, and in February 1999 she saw Dr Currie, her new general practitioner who referred her to Dr Kinny again. He performed another arthroscopy on 15 April 1999 and she returned to work in late May 1999. She was certified fit for light duties which meant that she was not to use the polishing machine. She filled in a compensation claim form in May 1999 with respect to the condition of both her knees as she realised the condition was serious and she might need knee replacement surgery.
On 28 June 1999 the applicant was told that the restricted duties would no longer be provided to her so she went on extended sick leave without pay.
In September 1999, whilst still on sick leave, Mrs Newell received a letter from Australia Post with respect to redundancy packages. She had a meeting with people from Human Resources who told her that her job was going to be contracted out and she was likely to be put off work. There were redundancies available and she was asked if she would be interested in a redundancy. Mrs Newell accepted the redundancy offered.
Mrs Newell said she would have been happy to keep working on the light duties if they had been available to her. She has not worked since 28 June 1999 when those light duties were no longer available.
Stanley Owen Newell, the applicant's husband, gave evidence that Mrs Newell had not had problems with her knees until late 1995. He also said that while she did some gardening, the garden was very low maintenance and he did all of the heavy work. He also confirmed that she had complained in 1996 about work hurting her knees but that, as he was her direct supervisor, he referred her to his supervisor, Mr English and he no longer had anything to do with how the matter was dealt with.

Medical evidence

Dr Simon Kinny, Orthopaedic Surgeon, has been the applicant's treating specialist since 1996. His first report stated that there was no precipitating cause of the injury but that it was aggravated by gardening.
However, in his report dated 26 November 1999, he stated that he was now of the opinion that "her employment as a cleaner with Australia Post may have made a material contribution to this worsening of the right knee condition – the main factor is obesity and work is a secondary factor to the worsening of the arthritis".
In oral evidence he said that when he was talking about "causes" in his report he had not included the possibility of "aggravation".
Dr Kinny was of the view that obesity would not cause a meniscal lesion but that the work undertaken by the applicant may have done so. He also thought that after the 1996 operation there would have been less meniscal tissue to act as a shock absorber in the knee. This would have meant that the applicant's work duties would have been a significant material factor with respect to the rapid degeneration of the knee after 1996.
Dr Kinny thought it was quite difficult to try to break down the impact each factor would have had on the knee condition. Under cross-examination, he suggested that the meniscal tear was two-thirds caused by work and one-third caused by obesity. He said that the degeneration in the right knee after the operation was caused equally by work and obesity. With respect to the left knee he thought that obesity was responsible for two-thirds of the degeneration and work for the other one-third of the degeneration. However, in re-examination, he admitted that such assessments were highly subjective. He assessed that there was a 20% permanent incapacity in the right knee and 10% in the left knee.
Dr Peter Jackson, Muscular Skeletal Physician, prepared two reports on the applicant dated 11 October 1999 and 22 July 2000. Dr Jackson was of the view that the meniscal lesion in 1996 was due to a repetitive strain or compression of the meniscus during her work. He noted that in 1996 there was only minimal arthritis in her right knee, consistent with that of any other 44 year old. However, in 1999 he found very aggressive arthritis in her right knee. In his view this was as a result of her returning to work and completing her normal duties without the protective meniscus in her knee.
Dr Jackson accepted that obesity was the other contributing factor to the applicant's condition as both a ruptured meniscal or obesity could lead to arthritis. He was of the view that there was a 20% permanent impairment in the right knee and a 10% permanent impairment in the left knee.
Dr John Ashwell, Orthopaedic Surgeon, did not give oral evidence but provided reports dated 16 March 2000 and 23 May 2000. He was of the opinion that work was most likely to be a factor in causing knee symptoms, although obesity was also a factor. He was of the view that there was more osteoarthritis in the right knee than the left and that there was a 20% permanent impairment in the right knee and a 10% permanent impairment in the left knee.
Dr James Bodel, and Dr N Thompson, Orthopaedic Surgeons, both provided reports to the Tribunal. However, both doctors obtained a different history from that which was placed before the Tribunal and Dr Thompson did not have access to other medical reports on the applicant. The Tribunal accepts the submissions of both parties and does not place any reliance on their reports.
Dr N McGill, Rheumatologist, was the final doctor to provide oral evidence to the Tribunal He also provided a report dated 27 November 2000. Dr McGill was of the view that a meniscal tear could lead to a degeneration but thought that the applicant's work-related activities did not bring on the degeneration. He based this on information in a research paper which considered the impact which some occupational activities have on the risk of developing arthritis. None of the activities the applicant complained of, namely, the use of a polisher or a mop and bucket, were covered in that research paper or any of the other studies Dr McGill commented on.
Dr McGill did accept that the jolt experienced when a person lost control of a polisher and it "took off to one side" could cause a meniscal tear. He thought that if the osteoarthritis was brought on by the meniscectomy he would expect to see greater degeneration in the right knee. He thought the osteoarthritis was of a similar degree in both knees. Dr McGill was not prepared to defer to the opinion of the treating orthopaedic surgeon and said the applicant's obesity was the sole aggravating factor with respect to the applicant's knees.
Between 1995 and 1999 the applicant increased from 103 kilograms to 134 kilograms. She said that she had always been large but that after her knee operation in 1996 she could not move around as much and had put on a lot of weight since then.
The law
The relevant sections of the Safety Rehabilitation and Compensation Act 1988 are set out below.
"Interpretation
4.
'impairment' means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
'injury' means:
(a)       a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
4(9)     A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)       an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
Compensation for injuries
14(1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)       Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)       Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Compensation in respect of medical expenses etc.
16(1)    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Compensation for injuries resulting in incapacity
19(4)    In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment – the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment – the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition – the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee – whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant.
Compensation for injuries resulting in permanent impairment
24(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
….
(4)       The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)       Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
…..
(7)       Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
Compensation for non-economic loss
27(1)    Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment."
At the outset, the Tribunal found Mrs Newell to be an honest and credible witness. The Tribunal accepts her unchallenged evidence that she took sick leave rather than put in a compensation claim in 1996 on the advice of her supervisor. The Tribunal also accepts that the correct diagnosis for Mrs Newell's conditions are meniscal tear of the right knee and bilateral osteoarthritis.
The first issue for the Tribunal to determine is whether the applicant suffered an injury which arose out of or in the course of her employment.
The Tribunal prefers the evidence of the treating orthopaedic surgeon, Dr Kinny, and Drs Ashwell and Jackson to that of Dr McGill. While the Tribunal agrees with some of the propositions put forward by Dr McGill, it disagrees with his opinion that the degeneration and arthritis are to the same extent in both knees. The weight of the medical evidence is clearly that the right knee is worse than the left knee. As even Dr McGill conceded, this would mean that the removal of the meniscus in the right knee impacted on the level of degeneration.

On the basis of the medical evidence, the Tribunal is satisfied, on the balance of probabilities, that Mrs Newell developed a meniscal tear as a result of her work with the respondent. This resulted in the need for an arthroscopy in 1996. At this time, Mrs Newell had some underlying osteoarthritis, although it was minimal. Her return to work on the same duties meant that she was putting her right knee under pressure without the meniscal tissue to act as a shock absorber, thus increasing the degeneration. Drs McGill, Jackson and Kinny agreed that there was a causative link between meniscal tears and arthritis. This further degeneration in the right knee led to the second arthroscopy needing to be performed.
With respect to the left knee, the Tribunal accepts that, again, there was likely to be some underlying arthritis present in 1996. With greater pain in the right knee, the applicant protected that leg and placed greater pressure on the left leg, increasing the degeneration. As a result of the right leg injury, the applicant said that her mobility reduced and she "stacked on the weight" after the arthroscopy. The applicant's weight as it was, would have impacted upon her knee condition. However, the increase in weight, added to by her lack of mobility, would have led to further degeneration.
The Tribunal does not accept the respondent's submission that because the applicant had not suffered a knee injury in her first twelve years of working for Australia Post, the injury could not have been as a result of her work. It is not unusual for a person to experience wear and tear on their bodies from a certain activity and that eventually the body cannot take the pressures from that activity anymore. This is what happened with Mrs Newell's shoulder in 1997. She had used a mop and bucket for thirteen years at that stage and one day at work her shoulder was injured and the respondent accepted that as work-related.
The Tribunal is satisfied that Mrs Newell suffered a meniscal tear in 1996 as a result of her work and that her return to work aggravated her underlying arthritis in her right knee. The Tribunal is also satisfied that as a result of protecting her right leg, greater pressure was placed on her left leg at work and her mobility was reduced so as to add to her weight problem. These two factors are related to her work through the injury to the right leg and aggravated the underlying arthritis in her left knee. In terms of "aggravation", the Tribunal is of the view that the arthritis was made permanently worse at a more rapid rate than it would otherwise have been. Therefore, both injuries arose out of or in the course of Mrs Newell's employment.
It is clear that Mrs Newell has suffered an impairment in her knees as a result of the injury and the aggravation of the underlying arthritis.
The second issue is whether Mrs Newell suffered an "incapacity" for work. With respect to the definition in subsection (4)(9)(b), the Tribunal made the following observations in the case of Re Prica and Comcare (1996-7) 44 ALD 46 at 51:
"Hence a construction of s4(9)(b) which permits a finding of an incapacity for work in circumstances where the applicant, subsequent to an injury, is engaged in light duties at their former salary does not produce any anomaly within the Act and recognises that incapacity for work is a relative concept and a matter of degree."
This is clearly a case which falls within the above principles as Mrs Newell returned on light duties but was not fit to use the polisher. There has been no suggestion that Mrs Newell's condition has improved nor is likely to improve. As such, the incapacity is ongoing.
Therefore, the Tribunal is satisfied that Mrs Newell fulfils the requirements of Section 14 of the Act and the respondent is liable to pay compensation. It follows that Section 16 is also satisfied and the respondent would be liable to pay reasonable medical costs.
The Tribunal disagrees with the submission by the respondent that subsection 19(4)(c) precludes a finding in favour of the applicant under Section 14. When given lighter duties, Mrs Newell took them. She was then told that such duties were no longer available and her job would be contracted out. At this time she accepted a redundancy. Mrs Newell's evidence on this was uncontradicted.
It is the Tribunal's view that it is quite reasonable for a person who is faced with going back onto duties they do not have the capacity for and eventually being dismissed from them in any event, to accept any benefits offered to them by an employer. This was not really a "voluntary" redundancy at all and if light duties had continued to be offered to Mrs Newell, she would have continued to take them. Therefore, subsection 19(4)(c) does not preclude payment of compensation as the failure to continue in suitable employment was reasonable in all of the circumstances.
With respect to the applicant's claim under Section 24, there has been no evidence to suggest that rehabilitation would assist the condition or that it is anything other than permanent.
In terms of the degree of impairment, the weight of the medical evidence favours a finding of an overall 20% permanent impairment of the right knee and a 10% permanent impairment of the left knee. The question for the Tribunal is how much of that impairment "results from" the work-related injury.
In the case of Comcare v Amorebieta (1996) 66 FCR 83 at 96, Jenkins J held that:
"The measure of that compensation (per s24) is the degree of permanent impairment which has resulted from the aggravation of the disease, and in contemplation of law the degree of impairment to which the aggravation brings the respondent's spine is caused by – 'results from' – that aggravation, whatever the lesser degree of impairment was which preceded that aggravation, and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment."
In the case of Martin v Australian Postal Corporation (1999) FCA 655, Burchett J held:
"Whilst it may be possible (I do not say it would be in every case) to isolate the compensable effects of further injury to the hand of the saw miller who has previously lost a finger (whether as a result of an accident or treatment for a disease) it would be impossible to isolate those effects in, for example, many cases of previously not disabling or only mildly symptomatic diseases. Fluctuations in the severity of a constitutional condition and the similarity or identity of the effects typical of the condition, or capable of being produced by it, with those typical of an aggravation of the condition, or capable of being produced by such an aggravation, may make disentanglement of one set of effects from the other set of effects a hopeless task. The draftsman of the approved guide plainly recognised this by the qualification 'where it is possible to isolate the compensable effects of an injury' those words should be understood as acknowledging both the wider problem to which I have referred and the continuing validity of the analysis made by each of Jordan CJ and Barwick CJ. If there be any ambiguity I do not think there is, the remedial nature of the legislation would require it to be construed liberally and not restrictively."
In this case, an attempt was made by Dr Kinny in the witness box whilst under cross-examination, to separate the level of impairment which was due to work as compared with that which was due to obesity. At the outset, Dr Kinny said that that would be a very difficult thing to do and in re-examination admitted that his assessment was very subjective. Given that the witness box is not exactly a place for the development of carefully considered professional opinion, the Tribunal places less weight of Dr Kinny's attempts to break down the level of impairment.
With respect to the right knee, Dr Kinny said that work caused at least two-thirds of the initial injury, namely, the meniscal tear. He then went on to say that of the ongoing degeneration, 50% was caused by work and 50% was due to obesity. He did not go on to specify how much of the later degeneration was caused by the initial injury or to what degree the initial injury contributed to the applicant's weight problems.
With respect to the left knee, Dr Kinny said that work caused one-third of the injury and obesity caused the balance of the impairment.
He did not, however, clarify how much related simply to the work duties, how much was due to the extra pressure placed on the let knee as a result of the pain in the right knee, or how much of the applicant's obesity related to her lack of mobility from the first injury.
In the Tribunal's view, the causes of the injuries, namely, minor underlying arthritis, obesity, work activities and the sequelae of the meniscal tear are so inter-related that they cannot be safely isolated and separate percentages of impairment given to them. The work-related aspect of the injuries is sufficiently substantial to assess the whole of the impairment as resulting from the work-related injury for the purposes of this Act.
The Tribunal finds that the applicant satisfies Section 24 and has a 20% permanent impairment of her right knee and a 10% permanent impairment of her left knee. Entitlement under Section 27 also follows as a result of this finding.
Insufficient evidence was placed before the Tribunal to allow for assessment of compensation. As such, the matter of assessment is remitted to the respondent for calculation.
For the above reasons, the Tribunal sets aside the decision under review and in substitution therefor determines that the applicant, Janette Claire Newell, be paid compensation pursuant to Sections 14, 16, 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 in accordance with the reasons for this decision. The Tribunal further directs that the respondent pay the applicant's costs as agreed or, failing agreement, as taxed by the District Registrar of the Tribunal in accordance with the Tribunal's Practice Direction.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Denise Burton
  Secretary
Date/s of Hearing  26-28 February 2001
Written submissions                 18 May 2001
Date of Decision  27 June 2001
Counsel for the Applicant        Mr M Perry
Solicitor for the Applicant         Messrs Mitchell Playford and Radburn
Counsel for the Respondent    Mr N Polin
Solicitor for the Respondent    Messrs Hunt and Hunt