Patterson v Repatriation Commission
[2006] FCA 538
•12 MAY 2006
FEDERAL COURT OF AUSTRALIA
Patterson v Repatriation Commission [2006] FCA 538
DEFENCE AND WAR – veterans’ entitlements – claim for hypertension arising out of eligible war service in Vietnam – Held: Administrative Appeals Tribunal erred in making findings of fact as to factors prescribed by Statement of Principles and placing onus of proof on applicant
Veterans’ Entitlement Act 1986 (Cth) ss 9(1)(b), 120, 120A(3)
Patterson and Repatriation Commission [2005] AATA 758 discussed
Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 applied
Delediov Repatriation Commission (1997) 47 ALD 261 at 275 discussed
East v Repatriation Commission (1987) 16 FCR 517 citedDAVID MITCHELL PATTERSON v REPATRIATION COMMISSION
NO VID 1059 of 2005HEEREY J
12 MAY 2006
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1059 of 2005
BETWEEN:
DAVID MITCHELL PATTERSON
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
HEEREY J
DATE OF ORDER:
12 MAY 2006
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The determination of the Administrative Appeals Tribunal made on 9 August 2005 is set aside.
3.The applicant’s claim is remitted to the Tribunal differently constituted for further consideration according to law.
4.The respondent pay the applicant’s costs of the appeal, including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1059 of 2005
BETWEEN:
DAVID MITCHELL PATTERSON
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENT
JUDGE:
HEEREY J
DATE:
12 MAY 2006
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant Mr David Patterson claims that his condition of hypertension arose out of, or was attributable to, his eligible war service in Vietnam, within the meaning of s 9(1)(b) of the Veterans’ Entitlement Act 1986 (Cth) (the Act). The rejection of his claim by the respondent Repatriation Commission and the Veterans’ Review Board was affirmed by the Administrative Appeals Tribunal: Patterson and Repatriation Commission [2005] AATA 758. Mr Patterson now appeals to this Court.
The relevant Statement of Principles (SoP) concerning hypertension for the purposes of s 120A(3) of the Act, No 35 of 2003, provides by cl 4 that at least one of the factors in cl 5 “must be related to any relevant service rendered”. The factors in cl 5 include:
“(a) being obese at the time of the clinical onset of hypertension; or
(b) consuming an average of at least 200 g per week of alcohol which cannot be decreased to less than an average of 200 g per week at the time of the clinical onset of hypertension; or
(c) ingesting at least 12 g of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension.”
Mr Patterson served as a gunner in the Australian Army in Vietnam from 4 February until 30 October 1971. His clinical onset of hypertension occurred in 1978.
Mr Patterson contended that the material before the Tribunal raised three hypotheses for the purposes of s 120(3) of the Act. These were that the stressors, tension and circumstances of his operational war service in Vietnam led to:
· an increased consumption of alcohol and/or snack foods and/or salty foods, which consumption continued due to taste, preference and habit, and which contributed to weight increase and obesity, which contributed to the onset of hypertension (the obesity hypothesis); and/or
· an increased consumption of alcohol which contributed to the onset of hypertension (the alcohol hypothesis); and/or
· an increased consumption of salt which contributed to the onset of hypertension (the salt hypothesis).
In its reasons for decision the Tribunal found that the obesity hypothesis was a reasonable one raised by the material before it (s 120(3)) but that it was satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that Mr Patterson’s hypertension was war-caused (s 120(1)). It found that the alcohol and salt hypotheses were not reasonable (s 120(3)) because they were not upheld by the SoP (s 120A(3)).
The Tribunal’s decision
Under the heading “Evidence” the Tribunal summarised the evidence given by Mr Patterson, which was to the following effect.
His hypertension was diagnosed in 1978. Prior to this he had no idea that his blood pressure was elevated. During his service in Vietnam he started eating potato chips, salted peanuts and salted cashews in the canteen initially as an accompaniment to a glass of beer but later as a snack away from the canteen. Before his service in Vietnam he had eaten such salty snack foods only infrequently but by the time of his discharge they were a regular part of his diet.
Before his army service he was a light social drinker. During his service in Vietnam he began to drink regularly. When he was not on duty he consumed alcohol (one to two small cans of full strength beer) and salty snack foods daily. After his discharge he continued to consume beer virtually daily, at a hotel with lunch on one or two days weekly and in the evenings.
At the time of his discharge his weight was almost the same as on enlistment. However his weight increased after army service and by 1978 he considered himself to be obese (105 kg) which he attributed to his consumption of alcohol and salty snack foods. He said that his service in Vietnam contributed to his weight gain because his diet and exercise were otherwise fairly similar to pre-enlistment levels. He estimated his consumption of beer after his discharge until the time of diagnosis to be more than 20 standard drinks of alcohol per week on average.
Following his Vietnam service he began to add salt to his meals because the food tasted bland without it. He estimated that he was consuming at least 12 grams of salt per day at the time of diagnosis of hypertension in 1978.
In Vietnam his role was to calculate the settings on artillery to support infantry in the field. This was a precise and stressful task. The stress and tension, plus the hot and humid climate caused him to sweat profusely which contributed to his increased beer consumption. In the field there was no access to alcohol but he spent most of the time in Nui Dat and Vang Tau where there was ready access to beer. He estimated his alcohol consumption per week in the six months prior to the diagnosis of hypertension in 1978 as follows (emphasis in original):
“Counter meals: 2-3 glasses X 2 to 3 times per week = Average 6.25 glasses = 62.5 grams
Friday evening after work: 3-5 glasses = Average 4 standard glasses = 40 grams
Other weekday evenings at home: a large bottle once or twice a week = 1.5 X 4 standard glasses = 6 standard glasses = 60 grams
Weekends: A large bottle on one or both days (some times more) = Average 6 standard glasses = 60 grams
TOTAL = 222.5 grams”
He always had a liking for salty snack foods but in Vietnam this increased. Based on an article which concluded that a level teaspoon of salt contains about 6 grams he estimated his salt supplement consumption per day in the six months prior to diagnosis as follows (emphasis in original):
“Added to cooking 1 teaspoon for each of 3 pots X 6 grams/2 persons [of vegetables = 18 gm for 2 persons] = 9 grams [per person] – [but] not all [salt] enters the food [so] say 6 gms
Added at the table: 0.25 teaspoon = 1.5 gm
Vegetable broth = 1 pot consumed 13% of time on average (4 pots per month) – 0.13 tablespoon = 3 gm
Salt from potato chips, twisties [cheese snack] = 0.25 teaspoon say per day on average = 1.5 gm
Soy sauce on chiko roll 0.25 teaspoon per day on average = 1.5 gm
Added to hot breakfast of bacon and eggs two to three days per week = 2.5/7 divided by X 0.25 teaspoon = 0.5 gm
Plus unknown other small amounts of salt supplements (eg fish and chips on Friday night and/or weekends)
TOTAL greater than 14 gms + per day on average”
In cross-examination Mr Patterson agreed that at university and during his army service before Vietnam he drank beer occasionally but not to excess. In the 1980s he changed his lifestyle and took up sailing which helped to reduce his weight. He changed to light beer and began to exercise regularly.
The Tribunal quoted from evidence of a Consultant and Occupational Psychiatrist Dr Nigel Strauss who was called on behalf of the Commission. In a written report Dr Strauss said:
“Assuming that this man drank two small cans of alcohol when he did drink in the evenings in Vietnam and assuming that he did not drink four or five nights a week every week while he was there I am not satisfied that it can be established that he did consume 200 grams of alcohol per week consistently during his time in Vietnam.
…
I do accept however that after he was discharged from the Army his alcohol consumption increased and he admitted that he put on a good deal of weight after he left the Army and before 1978.I do not believe that this man has had a problem with alcohol and I am not satisfied that at any stage he suffered from alcohol dependence or abuse or that he warranted a psychiatric diagnosis of alcohol abuse. I am not satisfied that his alcohol consumption was 200 grams per week or more than that, while he was in the Australian Army at any stage.”
Dr Strauss stated that Mr Patterson had told him that after he left the army his weight increased significantly because he was inactive and had a sedentary job and that he had always eaten salty snack foods. Dr Strauss concluded:
“Even after his discharge from the army his alcohol consumption was never an issue for those around him or indeed for Mr Patterson himself.”
In oral evidence Dr Strauss emphasised that Mr Patterson did not drink alcohol consistently in Vietnam because he was on duty for a considerable portion of the time. He agreed that Mr Patterson could not be described as a heavy drinker.
The Tribunal referred to another witness called by the Commission, Dr Ruth English, a nutrition consultant. She noted that Mr Patterson’s weight on enlistment was the same as on discharge. She said that the salty snack foods identified by Mr Patterson as being responsible for his obesity were food choices that were purchased in the canteen and consumed by him away from the mess setting and therefore were not part of the service diet.
Dr English noted that Mr Patterson had not provided detailed dietary intake data to substantiate his claim of consuming 200 grams of alcohol per week, had not completed an alcohol questionnaire and had given non-specific information on the quality and quantities of beer consumed.
She said that foods such as salted nuts, cashews and potato chips were not covered by the definition of “salt supplements” in the SoP. She said that “any personal recall of salt intake lacks scientific credibility, especially as no validation check can be applied as with general dietary recall”. She concluded that based on the findings in the scientific literature relating to the complexity of factors that shape an individual’s food choices and habits, Mr Patterson’s stated consumption of peanuts and other salted snack foods and his taste for salt before the diagnosis of hypertension, are not as a result of his operational service.
In oral evidence Dr English said that Mr Patterson’s salt intake appeared to be a lifetime habit. She questioned the accuracy of his estimate that one teaspoon of salt weighed 6g and questioned his estimate of the amount of salt added to his food because of the uncertainty about the volume of liquid involved. She doubted his salt supplement amounted to 12 grams per day on the average and emphasised that he consumed snack foods in Vietnam in addition to prescribed meals. She said that hot weather and sweating by Mr Patterson in Vietnam would not necessarily lead to a greater salt intake because the body adapted to salt loss in different ways.
The Tribunal referred to a written statement by Mr Patterson’s sister Mrs A Hardidge which said:
“… During our childhood and adolescent years, our use of salt supplements was much the same for all members of the family including David. Use was fairly minimal, and I would say what would be described as normal for most families. Salt was added to the cooking, but only in small amounts. Salted cashews and peanuts and other like foodstuffs were eaten rarely on special occasions, such as at Christmas family gatherings.
…
After David’s return from Vietnam…I can clearly recall that David showed a strong liking for salted peanuts, cashew nuts and potato chips and always added a lot of salt from the shaker at the table, regardless of whether the cooking had been salted to most people’s liking.”The Tribunal quoted a written statement by Mr Patterson’s wife, Mrs Patricia Patterson. She said that she and Mr Patterson met in 1972 and were married the following year, after his army service. She said:
“Firstly, in the preparation and cooking of vegetables, soup and salad I always would need to add more salt than I was previously used to, as David would complain of it being tasteless unless I did so, which I found most frustrating. Even adding more salt than I was generally accustomed to would still not be enough, as David would invariably still add salt at the table. The amount of salt added would vary from about one teaspoon for each pot of vegetables to a very large amount for the vegetable broth that David liked very much…David would still add salt to the bowl to get the taste he liked.
David also had a preference for snacks and savouries with high salt content.”
In oral evidence Mrs Patterson stated that after their wedding Mr Patterson began to increase in weight. He used to drink one large bottle of beer each night and on Fridays when he was working for the Country Roads Board he drank at a hotel with his colleagues after work. He changed to light beer in about 1985. He tried to loose weight in the mid 1980s and she assisted by cooking different foods.
The Tribunal referred to a report by Dr Justin Kenardy on the psychological and physiological effects that determine salt consumption. He stated that the over consumption of salt following a pattern of high salt diet cannot be construed as having an underlying mechanism of addiction. It is not an addictive process.
There was evidence from a military historian estimating that Mr Patterson could have spent between 114 and 146 days in Vietnam in conditions which allowed access to a canteen.
The Tribunal referred to an article in the Lancet which found that only 20 to 36 per cent of salt added during cooking is recovered in fresh vegetables, the rest being discarded in the cooking water.
The Tribunal quoted evidence given by Mr Patterson to the Veterans’ Review Board that after his discharge he adopted his former lifestyle which was
“…pretty much with family and friends but not a lot of going down [to] the pub and drinking and consuming those sorts of things [high-salt snack foods]. I mean, when I was in Vietnam, that would be a regular thing but I guess – I have a few close friends but I wouldn’t go out to the pub drinking with them but obviously that still continued on, the eating chips and peanuts and things that were salty like spring rolls and those sorts of things which I – I got too fat eating those things at one stage…”
Under the heading “Consideration of the Issues” the Tribunal recorded the submissions by counsel for Mr Patterson and the Commission. The Tribunal noted that there was no dispute that Mr Patterson suffered from hypertension.
The Tribunal then quoted the four-step process from the judgment of the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as follows (emphasis added):
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
The Tribunal found in respect of the first Deledio step that the material “point(ed) to a hypothesis connecting the hypertension to the circumstances of the particular service rendered by (Mr Patterson)”. Although not explicitly stated at this stage, it would seem that the Tribunal had in mind the obesity hypothesis.
In relation to the second step the Tribunal noted there was no dispute that the SoP concerning hypertension was in force.
In respect of the third step, the Tribunal accepted that Mr Patterson was obese (as defined in the SoP) at the time of the clinical onset of hypertension. There was “material or evidence pointing to the hypothesis being a reasonable one, and it (was) consistent with the template in the SoP”. Thus Mr Patterson satisfied the third step in relation to the obesity hypothesis.
In applying the third Deledio step to the alcohol hypothesis the Tribunal said (emphasis added):
“43. In respect of the third step from Deledio, in relation to factor 5(b) of the SoP, the Tribunal takes into account the estimates given by the applicant, in Exhibit 6, of his alcohol consumption in 1978. The Tribunal takes into account the evidence from Dr Strauss, who described the applicant’s alcohol consumption before and after service and concluded that the applicant was not a heavy drinker, and that the applicant’s post-service consumption was mainly beer consumed with counter lunches once or twice per week and in the evenings. The Tribunal also notes Dr English’s evidence that the applicant did not provide dietary intake data to substantiate his claim that he consumed 200 gm of alcohol per week in 1978, and her comments that he has not completed an alcohol questionnaire to substantiate his claim. The Tribunal further notes the applicant’s evidence that after Vietnam his alcohol consumption increased. The Tribunal finally notes that the applicant told Dr Strauss that after leaving the army his alcohol consumption was never an issue for him or those around him.
44. The Tribunal accepts the submission from Ms McCulloch [counsel for the Commission] that the estimates provided by the applicant in Exhibit A6 are unreliable and are not supported by objective evidence. For these reasons the Tribunal concludes that the applicant was not consuming at least 200 gm (20 standard drinks) per week on average at the time of the clinical onset of hypertension in 1978. As a result there is no material or evidence pointing to the hypothesis being a reasonable one, and it is not consistent with the template in the SoP concerning hypertension (Hill). Therefore, the applicant does not satisfy the third step from Deledio in relation to factor 5(b).”
In respect of the salt hypothesis in relation to the third Deledio step the Tribunal said
“45. In respect of the third step from Deledio, in relation to factor 5(c) of the SoP, the Tribunal takes into account the estimates given by the applicant in Exhibit A6 and the assumptions underlying the figures provided by him, and the research conducted by Dr Kennedy (sic) and the James study about salt ingestion, plus research cited by Dr English. The Tribunal accepts Ms McCulloch’s submission that the term salt supplements as defined in the SoP is confined to salt added to food when cooking or eating, and salt tablets. On this basis the Tribunal does not accept that salt used in packaged snack foods fits within the definition.
46. The Tribunal agrees with Ms McCulloch that the estimates of his salt consumption by the applicant are speculative. The Tribunal also agrees that the figures given in Exhibit A6, as a re-construction of events that took place many years ago, are unreliable and inaccurate, and the amounts listed for salt contained in potato chips, Twisties and soy sauce should be disregarded. For these reasons the Tribunal finds that the applicant did not ingest at least 12 gm of salt supplements per day on average, at least 6 months immediately before the clinical onset of hypertension. In the circumstances there is no material or evidence pointing to the hypothesis being a reasonable one, and it is not consistent with the template in the SoP concerning hypertension (Hill). The applicant does not satisfy the third step from Deledio in relation to factor 5(c) of the SoP.”
Thus at this stage the Tribunal had held that the obesity hypothesis but not the alcohol and salt hypotheses were reasonable. It then returned to the obesity hypothesis to apply the fourth step, that is to say whether it was satisfied beyond reasonable doubt that Mr Patterson’s hypertension was not war-caused. The Tribunal said:
“47. Relating to factor 5(a) of the SoP, in respect of the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact. The Tribunal accepts the evidence that, although the applicant increased his alcohol consumption after service, his weight on enlistment and discharge was almost the same, despite his evidence of developing a liking for salty snack foods in Vietnam. The Tribunal accepts the submission from Ms McCulloch that the applicant’s gradual increase in weight was consistent with factors noted by Dr Strauss such as being far less active and having a sedentary job. The Tribunal also agrees with Ms McCulloch that factors such as family responsibilities contributed to his weight gain.
48. The applicant admitted to feeling fitter at the time of his discharge than before or during service. He started eating high-fat snack foods such as Chiko Rolls and having counter lunches at a hotel about twice each week. Therefore, there was no causal connection between the applicant’s obesity and the development of hypertension. For these reasons, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between the applicant’s obesity and operational service during the relevant period, and that the hypothesis cannot be sustained. Therefore, the Tribunal finds that the fourth step from Deledio is not satisfied, and the claim does not succeed.”
In conclusion the Tribunal affirmed the decision under review.
The obesity hypothesis
The third sentence of [48] of the Tribunal’s reasons is obviously misconceived. The connection between Mr Patterson’s obesity and his hypertension, at the time of clinical onset, was not in dispute. The issue at this stage was the connection between that obesity and his war service. However, there is no need to cite well known authority for the proposition that decisions of administrative decision-makers should not be read over-strictly. Some looseness of language may be allowed. In the present case, [47] and [48] read as a whole indicate that the Tribunal understood its task at that stage, the fourth of the four-step Deledio process. It engaged in an assessment of the evidence and reached a conclusion that the connection between obesity and war service was disproved beyond reasonable doubt. Whether this Court would have reached the same conclusion is not to the point. No error of law is shown.
The alcohol hypothesis
The third Deledio step does not require or permit fact finding, an exercise which is confined to the fourth step. Yet it is clear this is what the Tribunal did at [43] and [44]. The reference to Dr English’s criticism of “lack of dietary intake data” suggests not only fact finding but the imposition of an onus of proof on Mr Patterson, something excluded by s 120(6). The Tribunal reached a conclusion as to what in fact Mr Patterson’s alcohol consumption was rather than enquiring whether his hypothesis was consistent with the SoP. I said at first instance in Delediov Repatriation Commission (1997) 47 ALD 261 at 275, in a passage approved by the Full Court at 83 FCR 96,
“…the SoP has no function in relation to the proof or disproof (under s 120(1) of the particular facts of a veteran’s case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis…
…
The particular claim then has to fit the template laid down in the SoP. The Byrnes [v Repatriation Commission (1993) 177 CLR 564] methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:(i)contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens to be a component of an SoP then the Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.”
The Tribunal failed to follow the process mandated by the Act. The Tribunal in the present case has made essentially the same error as the Tribunal in Deledio when it said (quoted in 47 ALD at 272):
“If a particular fact is not found to exist, or is not found to be related to the veteran’s service, on the balance of probabilities, then the SoP does not uphold the hypothesis and, according to s 120A(3) of the Act, the hypothesis cannot be reasonable.”
At 275 I said:
“… the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant.”
The salt hypothesis
Much the same thing happened with the salt hypothesis. The Tribunal made a qualitative assessment of Mr Patterson’s evidence and accepted criticism of it as “speculative”, “unreliable” and “inaccurate”. This is the discourse of fact finding.
If the Act, like most statutes conferring pensions and similar benefits, simply required Mr Patterson to establish that his hypertension was due to war service, then the Tribunal’s approach would disclose no error of law. However, for the historical and political reasons which underlie repatriation legislation in Australia, as discussed in Deledio and East v Repatriation Commission (1987) 16 FCR 517, the Act mandates a unique decision-making process. The Tribunal failed to apply that process.
Notice of contention
The Commission filed a notice of contention which in substance argued that the material before the Tribunal was incapable of raising the required reasonable hypothesis connecting Mr Patterson’s hypertension with the circumstances of his war service. In an appeal limited to questions of law (Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)) it would not be appropriate to conduct in effect a rehearing of the case before the Tribunal. Mr Patterson was entitled to have his claim considered on its merits by the Tribunal in accordance with the Act.
Orders
The appeal will be allowed. The determination of the Tribunal made on 9 August 2005 is set aside. Mr Patterson’s claim is remitted for consideration by the Tribunal differently constituted. The Commission is to pay Mr Patterson’s costs of the appeal, including reserved costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate:
Dated: 12 May 2006
Counsel for the Applicant: Mr G Chancellor Solicitors for the Applicant: Williams Winter Counsel for the Respondent: Ms J Mac Donnell Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 April 2006 Date of Judgment: 12 May 2006
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