Re WS

[2017] NSWSC 745

Supreme Court

New South Wales

Medium Neutral Citation:	Re WS [2017] NSWSC 745
Hearing dates:	21 and 28 February, 28 March and 31 May 2017
Decision date:	27 June 2017
Before:	Lindsay J
Decision:	(1) A determination that the plaintiff is a person who is not capable of managing his affairs (within the meaning of both section 41 of the NSW Trustee and Guardian Act 2009 NSW and rule 7.13 of the Uniform Civil Procedure Rules 2005 NSW) insofar as those affairs concern the conduct of these proceedings.  (2) Proceedings adjourned for consideration of what, if any, orders should be made (including orders for the appointment of a tutor) consequential upon that determination.
Catchwords:	PROTECTIVE JURISDICTION – Litigant in person – Capacity for management of affairs – Assessment of need for tutor – Functionality the key determinant – Determination task and time specific   MENTAL HEALTH – Guardians, committees, administrators, managers and receivers – Assessment of need for appointment of tutor – Litigant in person – Capacity for self-management – Functionality the key determinant – Determination task and time specific – Capacity to manage ordinary affairs, but not litigation
Legislation Cited:	Civil Procedure Act 2005 Crimes Act 1900 NSW NSW Trustee and Guardian Act 2009 NSW Uniform Civil Procedure Rules 2005 NSW
Cases Cited:	(2007) 69 NSWLR 547 [2007] NSWCCA 185 [2007] NSWCCA 341 [2008] NSWCA 70 (2010) 201ACrimR 302 [2010] NSWCCA 91 [2016] NSWCATOD 142 CJ v AKJ [2015] NSWSC 498 IA v TA [2016] NSWCA 179 Perpetual Trustee Company Limited v Mills (2007) 71 NSWLR 1 Rappard v Williams [2013] NSWSC 1279 A v A [2015] NSWSC 1778 at [53]-[82] Slaveski v Victoria (2009) 25 VR 160
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: WS Defendant Solicitor: AW Defendant State: State of NSW
Representation:	Counsel: Plaintiff: Self represented Defendant Solicitor AW: N Kabilafkas Defendant State: TE O’Brien   Solicitors: Plaintiff: Self represented Defendant Solicitor AW: HWL Ebsworth Defendant State: NSW Crown Solicitors
File Number(s):	2007/002659562016/00371747

Judgment

INTRODUCTION

1. Before the Court are two sets of proceedings in which WS (a litigant in person) is the plaintiff.

2. The common question for present determination, in both sets of proceedings, is whether the plaintiff is “a person incapable of managing his affairs” within the meaning of section 41 of the NSW Trustee and Guardian Act 2009 NSW and/or rule 7.13 of the Uniform Civil Procedure Rules 2005 NSW.

3. The defendants contend that he is incapable of managing his affairs insofar as those affairs concern the conduct of the principal proceedings, in which he has sued them.

PROCEDURAL CONTEXT

4. The active parties in the proceedings are the plaintiff and (as defendants) AW and the State of NSW.

5. Both sets of proceedings have their historical origins in the fact that, on 29 March 2005, the plaintiff was convicted at Parramatta Local Court of three offences against section 178BB of the Crimes Act 1900 NSW (for which he was fined $300 on each charge and ordered to pay costs) arising from a fraudulent alteration of Cabcharge dockets used to pay taxi fares, and the plaintiff’s consequential loss of his taxi driver’s licence in or about April 2005.

6. The plaintiff has endeavoured mightily, and repeatedly, but unsuccessfully, to have his convictions set aside. Reported judgments evidencing his endeavours can be found at (2007) 69 NSWLR 547, [2007] NSWCCA 185; [2007] NSWCCA 341; [2008] NSWCA 70; and (2010) 201 ACrimR 302, [2010] NSWCCA 91.

7. The plaintiff has also endeavoured, with equal lack of success, to have his taxi driver’s licence restored. See, for example, [2016] NSWCATOD 142.

8. AW is a solicitor in private practice who acted upon instructions of a NSW Government Department (the Department of Transport, operating as “Roads and Maritime Services”, colloquially known as “RMS”) in the criminal prosecution of the plaintiff.

9. The State of NSW was (on 4 October 2016) joined in the first set of proceedings presently before the Court, and evidently sued in the second set of proceedings, in lieu of two persons earlier sued by the plaintiff as employees of RMS, agents of the Crown, who allegedly acted improperly in the course of the criminal prosecution.

10. The plaintiff contends that he was wrongly convicted by the Local Court, principally, because, he presently says, he was not given due notice of evidentiary material to be relied upon by the RMS in support of the prosecution case.

11. His complaint against AW focuses upon an allegation that, by a letter dated 5 June 2009, AW falsely represented to him that RMS had not, in the course of the prosecution, obtained a handwriting analysis of the Cabcharge documents fraudulently altered.

12. Before me, the plaintiff’s complaints against State employees were limited to a complaint that an employee (M) had, on 1 December 2013, threatened him that, if he did not comply with her demand for sexual favours, she would cause him to be prosecuted (as, in the event, he was prosecuted) for falsifying Cabcharge dockets. In response to criticism of his account of dealings with M as fanciful, he supports his version of events by an allegation that M was mentally ill.

13. The plaintiff was born overseas and, at times, he struggles to have native English speakers comprehend his accent. He and his wife (AT) present as profoundly religious people for whom his narrative of personal experience with the legal system since 2005 has caused personal distress.

14. That communal distress appears to have driven the plaintiff, with the support of his wife, to pursue a crusade against AW and the State in an apparent endeavour to establish his innocence of the Cabcharge frauds found against him; to restore his taxi driver’s licence; and to recover compensation for his “wrongful conviction” and his loss of his licence.

15. The first proceedings presently before the Court (numbered 2007/00265956) found their way into the Protective List courtesy of an order made by McColl JA on 18 July 2016. The plaintiff sought, in the Court of Appeal, to pursue allegations of contempt of court against AW and the State’s employees. Her Honour transferred the proceedings to the Protective List for consideration. She plainly perceived the proceedings to be misconceived, at least in their location in the Court of Appeal.

16. The second proceedings presently before the Court (numbered 2016/00371747) found their way into the Protective List when Registrar Bradford, on 2 February 2017, transferred them from the Common Law Division. By a summons filed in that Division on 12 December 2016, the plaintiff seeks, inter alia, to challenge his Local Court convictions and NCAT decisions concerning his entitlement to a taxi driver’s licence. Like those in the Court of Appeal, these proceedings do not sit comfortably within ordinary procedural norms.

17. Without descending to unnecessary detail about procedural history, it is sufficient to note that each of the defendants has moved the Court for orders for summary disposal of the plaintiff’s claims for relief including, as a preliminary to applications for summary relief, an application for orders predicated upon a finding that the plaintiff is a person under legal incapacity, unable to conduct proceedings without a tutor.

18. On 4 October 2016 (in the first set of proceedings) and on 6 February 2017 (in the second proceedings) the following order was made with the consent of all parties:

“ORDER, pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 NSW, that the following questions be decided from and before any other question to be decided in the proceedings as presently constituted; namely:

a) Whether the plaintiff is ‘a person incapable of managing his affairs’ within the meaning of section 41 of the NSW Trustee and Guardian Act 2009 NSW and/or rule 7.13 of the Uniform Civil Procedure Rules 2005 NSW; and

b)   If so, what, if any, consequential orders should be made affecting the plaintiff and/or these proceedings.”

19. An order was made, on 6 February 2017, that the questions for determination identified by these UCPR 28.2 orders be heard together, with evidence in the one set of proceedings to be evidence in the other so far as may be material.

20. A trial of the common, separate questions commenced on 21 February 2017, at the conclusion of which day (after hearing evidence of the plaintiff’s treating general medical practitioner, Dr Richard Janus) orders were made to enable the plaintiff to be medically examined by an independent doctor in lieu of his unavailable treating psychiatrist (Dr Matthew Large). Logistical difficulties associated with arranging for that examination occupied the Court on 28 February and 28 March 2017. The trial resumed on 31 May 2017, upon which date the independent doctor (Dr Jonathan Phillips) gave evidence and judgment was reserved.

21. This judgment addresses the first limb of the common, separate question (culminating in a finding that the plaintiff is incapable of managing his affairs insofar as they concern the principal proceedings), reserving the second limb (relating to consequential orders) for consideration after allowing the parties (and, if called upon, the NSW Trustee as the State’s protected estate manager of last resort) an opportunity to be heard.

COLLATERAL PROCEEDINGS, A DIVERSION

22. This judgment is not the first to consider the plaintiff’s capacity for self-management in the context of a perceived need for the appointment of a tutor.

23. On 15 February 2012, in an unreported judgment styled Hazairin Iskandar v Zulfikri Mahbur and Ors (No. 6), Slattery J made orders to the following effect:

(1)    Declare that WS is incapable of managing his affairs.

(2)    Order that such part of the estate of WS as is constituted by actual contingent assets or liabilities of WS, in or arising out of proceedings numbered 2010/00122386 (in which the plaintiff and his wife were sued as defendants), be subject to management under the NSW Trustee and Guardian Act 2009.

(3)   Order that management of the estate of WS, so defined, be committed to the NSW Trustee under that Act.

24. After the proceedings in which those orders were made were determined (by Bergin CJ in Eq, in Iskandar v Mahbur [2013] NSWSC 239) the NSW Trustee applied for, and obtained, orders for the revocation of the protected estate management orders affecting the plaintiff because the plaintiff was possessed of no property in need of management: Iskandar v Mahbur [2015] NSWSC 82 at [36]. In revoking the management orders, Slattery J expressly proceeded on the basis that, although WS was not a person capable of managing his affairs, there was no utility in the continued operation of the orders.

25. Whether a person is, or is not, capable of managing his or her own affairs (be those affairs defined by involvement in specific litigation, by reference to the ordinary affairs of everyday life, or otherwise) is always a task and time specific question, dependent upon whether the person has the ability to understand and evaluate particular tasks that are in question at a particular time: Guthrie v Spence (2009) 78 NSWLR 225 at [174]-[175].

26. Although the present proceedings involve two sets of proceedings, it is not necessary to explore procedural or other differences between them. Upon an assessment of the plaintiff’s capacity for self-management, there is no material difference between them.

27. They are both driven, essentially, by the plaintiff’s expressed desire to challenge his criminal convictions, to restore his taxi driver’s licence and to substantiate his complaints against individuals involved in his prosecution. In each set of proceedings, he is a self-represented litigant. In substance, he seeks to run but one case, albeit using different proceedings as different vehicles for that case. Whatever the form of relief from time to time claimed, the underlying allegations and the motivation to advance them remain substantially the same. He is obsessed with a sense of injustice grounded in his criminal convictions.

APPLICABLE PRINCIPLES

28. This is not a case that calls for a detailed consideration of the meaning of the concept of incapacity, either in the context of protected estate management orders under sections 40-41 of the NSW Trustee andGuardian Act (CJ v AKJ [2015] NSWSC 498 at [27]-[34]) or in the context of UCPR rule 7.13 relating to the appointment of a tutor (Rappard v Williams [2013] NSWSC 1279 at [62]-[83]; A v A [2015] NSWSC 1778 at [53]-[82], IA v TA [2016] NSWCA 179 at [55]). Earlier judgments, here cited, cover that field adequately enough.

29. In both contexts, the jurisdiction of the Court is protective in character, focusing on the capability of the person said to be incapacitated to perform particular functions, not his or her status as a person who is, or may be, “mentally ill”. The primary focus is on functionality. As in the present proceedings, mental illness, or capacity, may be an important determinant of functionality; but functionality is the key focus.

30. Where, as here, a party is self-represented, the level of mental capacity required for him or her to be found “capable” may be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation: Murphy v Doman (2003) 58 NSWLR 51 at 58.

31. Drawing upon Slaveski v Victoria (2009) 25 VR 160 at 184-185 [32], the following questions might be relevant to a determination whether a self-represented plaintiff has the requisite capacity to conduct his or her legal proceedings:

1. Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?

2. Is the plaintiff capable of understanding what is relevant to the proceedings or what is not relevant when those matters are explained to him or her?

3. Is plaintiff capable of assessing the impact of particular evidence on his or her case?

4. Is the plaintiff able to understand the court processes and the basic rules for conducting his or her case when those matters are explained to him or her?

5. Is the plaintiff able to understand court rulings made during the trial when they are explained to him or her?

6. Assuming the plaintiff is able to understand court processes, the basic rules of conducting his or her case and court rulings, is he or she capable of complying with them and directions given by the judge?

7. Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?

8. Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?

9. Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of claims, the defendant incurring additional costs that the plaintiff might have to pay if claims are unsuccessful and the tying up of scarce judicial resources when such matters are explained to him or her?

10. Does the plaintiff understand that he or she could possibly lose the case in whole or in part when that possibility is explained to him or her?

11. If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?

12. Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceedings as at the time such a proposal is made?

13. If a trial of the proceedings is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff’s physical or mental health?

32. The particular significance of these questions in the present proceedings is that they were specifically put to, considered and answered by the plaintiff’s GP (Dr Janus) for the purpose of the trial of the common, separate questions under consideration: Exhibit C5, paragraph 15; Transcript pages 63-66.

REVIEW OF THE EVIDENCE BEARING UPON THE PLAINTIFF’S (IN)CAPACITY

33. The preponderance of medical evidence, and that evidence most directly related to the question(s) for determination, is to the effect that the plaintiff is capable of managing the ordinary, every-day affairs of life, but is not capable of managing on his own account the proceedings he has instituted, and which he seeks to maintain, against AW and the State of New South Wales.

34. That is the effect of the evidence of Dr Large (the plaintiff’s treating psychiatrist), Dr Janus (the plaintiff’s treating GP) and Dr Phillips (the independent psychiatrist). The medicos differ to some extent in their precise diagnoses, but those differences are immaterial to their ultimate expressions of opinion.

35. Each of Dr Janus (on 21 February 2017) and Dr Phillips (on 31 May 2017) gave oral evidence in support of a written opinion and was cross examined by the plaintiff. The opinion of Dr Large was available to the Court only through documentation because, although arrangements were made for him to examine the plaintiff specifically for the purpose of giving oral evidence, the plaintiff withdrew consent to his provision of a report to the Court. Rather than interfere with the plaintiff’s relationship with a treating doctor, no attempt was made to force Dr Large’s attendance before the Court.

36. In 2010 the plaintiff was formally diagnosed with paranoid schizophrenia by Dr Large. He remains under treatment by Dr Large.

37. The medical consensus is that the plaintiff has an ongoing mental illness which can generally be managed by medication when he is not engaged in litigation; but his symptoms are exacerbated when he is engaged in litigation, rendering him dysfunctional and reinforcing a personality given to persecutionary delusions.

38. Each of Dr Janus and Dr Phillips was confirmed in his assessment of the plaintiff’s capacity when exposed to cross examination by him. Each of them gave evidence to the effect that, not only is the plaintiff unable to deal rationally and reasonably with the subject matter of the principal proceedings, but the stress of his engagement in the proceedings is such as to affect his general health adversely. This is consistent with views expressed by Dr Large so far as they are known.

39. The plaintiff relies upon a medical report prepared by Mr Terry Smith in 2009 which suggests that that the plaintiff was not, at that time, lacking capacity. Even if otherwise worthy of adoption, that report is not sufficiently proximate in time to warrant adoption now.

40. In substance, I accept the evidence of Drs Large, Janus and Phillips. I agree with the ultimate opinion, expressed by both Dr Janus and Dr Phillips in the witness box, that, although the plaintiff is capable of managing his day-to-day affairs, he is not capable of managing the subject proceedings without the intervention of a tutor.

41. Those opinions are consistent with my observations of the plaintiff in court. He generally presents as a well-groomed, quiet, polite gentleman. He has the support of his wife, who attended court with him and gave evidence in aid of his claim to be fully capable of managing his own affairs.

42. Her loyalty is not sufficient to displace other, more objective evidence. He is not without guile or an ability to adapt his behaviour in a manner calculated to advantage himself in litigation. An opportunistic mindset emerges when he assesses his need for a tutor, or otherwise, according to a personal assessment of adversarial tactics; he was grateful to have a tutor in his successful defence of the civil proceedings determined by Bergin CJ in Eq, but he disclaims a need for a tutor when he casts himself in the role of a plaintiff.

33. He is prone, particularly (but not only) in the written word, to give way to disordered, rambling rants about what he regards as his wrongful convictions. As Dr Janus remarked, he nurses his sense of injustice, beyond the norm, to the prejudice of his general health, despite disruption within his family, in circumstances in which a normal, well-adjusted person would leave the past in the past. He is fixated by a perception that he is a victim of the justice system. A lack of insight into his medical condition affects: (a) his ability to judge what is relevant, and what is not, in the conduct of litigation; and (b) his ability to understand, and to make prudential judgements about, the nature and course of proceedings in court.

34. His written submissions, and the stream of unsolicited emails he insists on sending to all and sundry complaining of injustices suffered by him, betray obsessive, disordered thought patterns; an inability to see where his best interests lie; and a compulsive refusal, or inability, to conform to procedural norms.

35. Framed in terms of the criteria suggested in Slaveski v Victoria, I make the following findings concerning the plaintiff’s capacity to conduct the present proceedings:

1. The plaintiff does not understand the factual framework for his claims and the evidence required to succeed. This is illustrated by his pursuit of both “contempt” proceedings in the Court of Appeal and an “appeal” from NCAT as vehicles for repetitive complaints about his conviction and loss of licence. It is also illustrated by his obsessive preoccupation with injustices allegedly suffered by him on a hearing limited to the question of his capacity for self-management.

2. Although the plaintiff does appear to understand the proceedings in a general way, he is unable consistently to distinguish between relevant and irrelevant considerations.

3. The plaintiff does not appear to be able to assess the impact of particular evidence on his or her case. Illustrations of this may be found in the emphasis he gave to the 2009 Smith report, and in misguided submissions about the effect of the evidence of Dr Janus, suggesting (contrary to the fact) that Dr Janus’ evidence supports a finding of capacity.

4. The plaintiff has a basic understanding of court processes, but he has not demonstrated an ability to abide by them for any length of time. He returns, repeatedly, to disordered complaints about his wrongful conviction, consequent injustices and (tragic as it may be) the personal suffering of himself and his family.

5. The plaintiff appears to have a basic understanding of court rulings when explained to him, but the appearance may not be matched by reality. He quietly submits to adverse rulings for a time, but he tends to re-agitate his complaints without restraint.

6. The plaintiff appears incapable of complying with orderly procedures for the conduct of proceedings. This has manifested itself in his different formulations of the same complaint in different types of proceedings, his withdrawal of consent to the provision to the Court of a medical report by Dr Large, and his peppering of the Court (and others) with unsolicited, procedurally inappropriate emails.

7. The plaintiff generally engages with counsel and the Court politely in a courtroom setting, but in writing he frequently makes scandalous allegations about those he perceives to be adversaries.

8. The plaintiff appears at times to be incapable of controlling his emotions. From time to time he has made impassioned, tearful speeches to the Court about injustices suffered by him, and his family, as a result of his wrongful conviction. The timing and content of those speeches have been outside the parameters of normal behaviour. Sympathy for his suffering cannot deflect an assessment of the plaintiff’s (in)capacity.

9. The plaintiff appears to have no regard for the adverse consequences of his actions on the defendants or the scarce resources of the Court.

10. The plaintiff appears to have no appreciation that he might lose the present proceedings. That lack of appreciation manifested itself in a settlement proposal, disclosed to the Court, in which he sought $25 million in damages. A pattern of unsuccessful litigation arising out of his conviction, and his loss of a licence, has not caused him to doubt his prospects for success in the current proceedings.

11. The plaintiff does not appear, consistently, to understand that the factual allegations asserted by him in the present proceedings might appear to an objective bystander to be delusional. He is not entirely uncomprehending of criticism of his allegation of impropriety against M as fanciful. It elicited from him an allegation that M was mentally ill. In the abstract, that allegation might be thought to compound the unreality of the first; but there are passing references in the evidence to the possibility that M may have suffered ill-health at some time, and there is insufficient evidence before the Court to assess the plaintiff’s allegation on its merits.

12. The plaintiff’s determination to proceed towards an ultimate goal of vindication, whatever barriers might be encountered, and his persistence in apparently extravagant claims, suggests an incapacity to think dispassionately about prospects and to contemplate proposals for compromise.

13. The medical evidence demonstrates a clear risk that the stress and pressure of the present proceedings might harm both the physical, and the mental, health of the plaintiff. This is no mirage. During the course of pre-trial preparations he was hospitalised for a time, the stress of the proceedings cited as a factor operating to the detriment of his health.

46. Drawing the threads of these findings together, and viewing the evidence as a whole, I am satisfied that, although the plaintiff is capable of managing the ordinary, everyday affairs of life, he is not (without the intervention of a tutor or the like) capable of managing his own affairs insofar as they are defined by reference to the subject proceedings.

47. Accordingly, the first limb of the common, separate question stated for the court’s determination should be answered as follows: The plaintiff is a person who is not capable of managing his affairs (within the meaning of both section 41 of the NSW Trustee and Guardian Act 2009 NSW and rule 7.13 of the Uniform Civil Procedure Rules 2005 NSW) insofar as those affairs concern the conduct of these proceedings.

48. The practical effect of this finding is that, unless and until the Court otherwise orders, the principal proceedings are (implicitly) stayed. It is not necessary that there be a finding of incapacity attending all aspects of the plaintiff’s life. It is sufficient that he is incapable of managing his affairs insofar as they concern the proceedings. That want of capacity is coterminous with the operation of the Uniform Civil Procedure Rules. It is consistent with the operation of sections 40-41 of the NSW Trustee and Guardian Act. The plaintiff is a “person under legal incapacity” within the meaning of UCPR rule 7.13. Such a person may not commence or carry on proceedings except by a tutor: UCPR rule 7.14(1).

49. The Court is empowered to dispense with that rule (Civil Procedure Act 2005) NSW, section 14) and to give directions with respect to any aspect of practice or procedure for which rules of court do not provide (CPA section 16). These powers are generally enlisted to allow a person found lacking in capacity to participate in the process of locating a person willing, able and suitable to act as tutor, or to challenge a finding of incapacity.

50. The current proceedings should be listed for further consideration after allowing the parties an opportunity to consider these reasons for judgment, potential consequential orders and the availability of a person suitable for appointment as a tutor.

51. In the context of the current proceedings, the function of a tutor (appropriately advised) will be to assess the evidence objectively; to consider with equal objectivity the availability, or otherwise, of any reasonable cause of action that might reside in the plaintiff associated with the allegations he makes in the principal proceedings; and to make informed forensic decisions about the future conduct, or settlement, of the proceedings.

52. The fact that the defendants have on foot applications for summary disposal of the proceedings (in whole or part) should not, of itself, determine the future course of the proceedings. Any tutor appointed to represent the plaintiff can reasonably expect to be allowed a fair opportunity (after due investigation) to form an independent judgement about what is to be done with the proceedings.

53. The nature of the office of a tutor lends itself to characterisation as that of a fiduciary, liable to supervision by the Court. The Court is specifically empowered to give directions with respect to a tutor’s conduct of proceedings: Civil Procedure Act 2005 NSW, section 80. A tutor can apply to the Court for directions in the nature of a trustee’s application for judicial advice. Such an application might be appropriate, for example, if a tutor were to seek the protection of an order that he, she or it would be justified in acceptance of an offer of settlement.

54. In any event, because the plaintiff is under legal incapacity any settlement of the proceedings (or any other claim made) on his behalf would require the Court’s approval: Civil Procedure Act 2005, sections 75-76; Perpetual Trustee Company Limited v Mills (2007) 71 NSWLR 1 at 4-5.

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Decision last updated: 28 June 2017