Smith and Secretary, Department of Social Services (Social services second review)

[2020] AATA 492

Smith and Secretary, Department of Social Services (Social services second review) [2020] AATA 492 (13 March 2020)

Division:GENERAL DIVISION

File Number:          2019/4128

Re:Beryl Smith

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:13 March 2020

Place:Sydney

The decision under review is set aside and in substitution, it is decided that the Applicant was qualified to receive the disability support pension from 4 October 2018.

............[sgd]............................................................

Mr Rob Reitano, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – where applicant has medical conditions causing impairment – whether the impairment is fully diagnosed, fully treated and fully stabilised - whether the applicant has an impairment rating of 20 or more points according to the Impairment Tables – whether the applicant has a continuing inability to work – spinal condition - decision set aside and substituted

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Fanning v Secretary Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Uebergang v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Mr Rob Reitano, Member

13 March 2020

1. Beryl Smith has applied for a review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT1) on 27 June 2019, which rejected her claim for disability support pension (DSP).

2. I have decided to set aside the decision of the AAT1, and have instead decided that Ms Smith is entitled to DSP from 4 October 2018. My reasons for that decision follow.

   BACKGROUND

3. On 4 October 2018, Ms Smith made a claim for DSP. Ms Smith said that she was suffering from a right ankle injury, depression, lower back pain, hypertension, left and right knee injuries, type 2 diabetes, elbow pain, left shoulder pain and chronic pain.[1] These conditions had afflicted her for very many years before her application for DSP. 

   [1] Exhibit 1, page 266.

4. In a letter dated 3 October 2018, Ms Smith’s treating general practitioner, Dr Leslie Vago, set out much of the information that was relevant to her claim.[2] That letter referred in detail to Ms Smith’s medical history from 19 January 2009, when she first started seeing Dr Vago, until 31 May 2018. The letter asserted that Dr Vago had been seeing Ms Smith ‘on a regular basis’ in that period. Ms Smith confirmed in her evidence that she had been seeking treatment and advice from Dr Vago for a very long time.

   [2] Exhibit 1, pages 238-240.

5. It is important to understand at the beginning that Ms Smith has, for a long time, had a range of relatively serious medical problems; these are best summarised by reference to Dr Vago’s letter of 3 October 2018. Dr Vago referred to Ms Smith’s ‘present complaints’ as follows:

   ·chronic pain right ankle

   ·weakness in right ankle ligaments

   ·chronic swelling right ankle

   ·walking distance limited to 50 meters

   ·standing ability 10 minutes maximum due to pain

   ·lifting limited to 1 – 6 Kg

   ·difficulty wearing safety boots

   ·instability of right ankle

   ·lower back pains and spasm (due to falls)

   ·unable to bend, squat, walk or leave the apartment, unable to do housework, grocery shopping contributing to reductions in function and inability to work

   ·sitting maximum 10 minutes

   ·right & left knee pain and fluid effusions contributing to reduction in function and inability to work

   ·right shoulder severe chronic pain/restricted movements, weakness

   ·maximum lifting capacity 3 Kg

   ·limited stretching above horizontal

   ·crepitus in both left and right knees

   ·right elbow pain and restricted movement

   ·major depression, inability to leave home, withdrawn from social and family activities

   ·prefers to live alone

6. In the same letter, Dr Vago also set out his diagnoses of Ms Smith:

   Diagnoses:

   ·Traumatic injury to right ankle and foot

   ·Traumatic synovitis

   ·Osteochondral lesion of the talar dome

   ·Lumbar spinal soft tissue injury (related to falls)

   ·Left & right knee patello-femoral syndrome

   ·Right shoulder 7mm partial thickness tear in the supraspinatus tendon

   ·Left shoulder 6mm lesion in the supraspinatus tendon

   ·Lumber spinal disease

   oL5-S1 disc protrusion

   oL2/3, L3/4, L5/6 disc degenerations/arthritis

   ·Right elbow chronic medial epicondylitis

   ·Major depression

   ·Hypertension

   ·Diabetes Mellitus type 2

7. The letter went on to say that ‘all treatment for her physical disability has been exhausted. No more treatment has been recommended. No more specialist referrals have been made.’ It is fair to say that Dr Vago’s ‘conclusion’ was that, so far as treatment for Ms Smith was concerned, there was little more that could be done for her. He expressed the opinion that she was ‘permanently disabled’. His reference in this regard was probably not one that was used as a term of art, but rather was in ordinary English to be understood as reflecting his opinion that her condition was such that would prevent her from working again.

8. Dr Vago’s letter was consistent with his earlier letter dated 24 April 2017, both in terms of diagnoses and prognosis.[3] The doctor’s sense of despair about Ms Smith’s condition was much the same at that time. The opinion, even then, was that Ms Smith was ‘permanently disabled’. 

   [3] Exhibit 1, pages 219-221.

9. On 13 November 2018, Dr Vago completed a Centrelink Medical Certificate that recorded details of Ms Smith’s ankle and knee; and back and shoulder injuries in terms that were the same as those found in the 3 October 2018 letter.[4]

   [4] Exhibit 1, pages 277-278.

   THE DEPARTMENT’S ASSESSMENTS

10. On 30 November 2018, Ms Smith was assessed by a registered occupational therapist retained by Centrelink, who prepared a Job Capacity Assessment Report.[5] The registered occupational therapist relied on, among other reports, the opinion in Dr Vago’s letter of 3 October 2018 and the Medical Certificate of 13 November 2018, to conclude that the back condition was ‘permanent and likely to persist’; and that Ms Smith had ‘accessed reasonable treatment and significant functional improvement is not expected’.

    [5] Exhibit 1, pages 280-289.

11. The registered occupational therapist considered that Ms Smith’s condition, ‘spinal disorder – other’ was verified by medical evidence and considered it to be ‘fully diagnosed, treated and stabilised’. The functional impact of Ms Smith’s spinal impairment was rated at 20 points on the Impairment Tables for various reasons including Ms Smith’s inability to remain seated for more than 10 minutes.

12. The registered occupational therapist also found that Ms Smith’s lower limb injuries were ‘fully diagnosed, fully treated and fully stabilised’. The functional impact of Ms Smith’s impairment was rated at 5 points on the Impairment Tables because of Ms Smith’s restricted ability to walk more than about 50 metres, as reported by Dr Vago. The registered occupational therapist found that Ms Smith’s upper limb injuries and her depression were fully diagnosed, but was not satisfied that they were fully treated and fully stabilised.

13. On 7 December 2018, a government contracted doctor, a qualified general practitioner who had never had anything to do with Ms Smith before, found that Ms Smith’s spinal condition was fully diagnosed, but not fully treated and stabilised. He said:

    While this condition is considered fully diagnosed (confirmed on CT scans), with exacerbation of symptoms due to recurrent falls, this condition is not considered fully treated and stabilised as there is no evidence candidate was seen by neuro-surgeon or spinal surgeon, including follow up with recommendations of pain management. Candidate saw Dr Lam (for right ankle instability).

    …

    It is anticipated that with further reasonable treatment such as neurosurgeon/Orthopaedic Specialist/Pain Management review and post specialist review rehabilitation such as physiotherapy/hydrotherapy, analgesia with review; it is possible that the prognosis of the condition may improve and such, the condition is considered permanent and diagnosed, but does not fulfil criteria for fully treated and stabilised criteria.[6]

    [6] Exhibit 1, pages 290-299.

14. The government contracted doctor found Ms Smith’s lower limb injuries to be fully diagnosed, fully treated and fully stabilised, but attributed 10 points to the functional impact of her impairment as Ms Smith could not walk far outside the home and could only manage short shopping trips. The government contracted doctor, like the registered occupational therapist, found that Ms Smith’s upper limb injuries and her depression were fully diagnosed but was not satisfied that they were fully treated and fully stabilised.

15. The Secretary of the Department of Social Services (the Secretary) and AAT1 both accepted the government contracted doctor’s opinion that Ms Smith’s spinal condition was considered not to be fully treated or fully stabilised and Ms Smith’s claim for DSP should be rejected as she did not score a minimum of 20 points on the Impairment Tables. 

    THE RELEVANT CRITERIA

16. The operation of Schedule 2, Part 2, Clause 4 of the Social Security (Administration) Act 2011 (Cth) means that Ms Smith needs to satisfy the Tribunal that she fulfilled the requirements of section 94 of the Social Security Act 1991 (Cth) (the Act) at some point after 4 October 2018, but before 3 January 2019.[7] I will refer to this as the ‘relevant period’ in these reasons.

    [7] Fanning v Secretary Department of Social Services [2014] AATA 447, [31]-[34].

17. It does not matter that evidence came into existence after 4 October 2018, or even after 3 January 2019, so long as it is relevant to establishing Ms Smith’s medical condition during the relevant period.[8]

    [8] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1].

18. The Tribunal stands in the shoes of the original decision maker, so it also does not matter that the Tribunal is proceeding to deal with the matter on evidence that was not available to AAT1. The question is what the correct or preferable decision is at the time the Tribunal comes to deal with the matter.[9] I have had regard to Ms Smith’s evidence about what she did before she made her claim for DSP. That evidence is relevant to some aspects of the treatment Ms Smith received for her conditions that I apprehend was not available to the AAT1.

    [9] Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].

19. Subsection 94(1) of the Act sets out, amongst other criteria, three criteria that Ms Smith must have satisfied during the relevant period for her to qualify for DSP.

20. First, she must have a physical, intellectual or psychiatric impairment. Second, the impairment must score 20 or more points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Table). Third, she must have a continuing inability to work. The requirement to have a ‘continuing inability to work’ is governed by the statutory criteria found in subsection 94(2) of the Act.

    DID MS SMITH HAVE A PHYSICAL, INTELLECTUAL OR MENTAL IMPAIRMENT?

21. The Secretary conceded, and I am satisfied based on Dr Vago’s reports, that Ms Smith had, during the relevant period, a physical, intellectual or psychiatric impairment. It is not necessary to address the first pre-condition for the claim any further.

    DID MS SMITH SCORE 20 OR MORE POINTS ON THE IMPAIRMENT TABLE?

22. Subsection 6(3) of the Impairment Table provides that the relevant condition causing the impairment must be ‘permanent’; and more likely than not, on the available evidence, to be one that will persist for more than 2 years. If it is not such a condition, then no impairment rating can be attributed to it. The word ‘permanent’ in subsection 6(3) of the Act does not have its ordinary meaning; it is defined by later subsections.

23. Subsections 6(4) to 6(7) of the Impairment Table prescriptively define what is meant by ‘permanent’. This is described by the condition being ‘fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised’. These phrases have prescribed definitions under the Impairment Table.

24. I will consider each of the matters relevant to Ms Smith’s spinal condition and lower limb conditions separately. The first is more controversial than the latter.

    Has Ms Smith’s spinal condition been fully diagnosed?

25. The first question is whether Ms Smith’s condition has been fully diagnosed. This requires consideration of whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether any treatment is continuing or planned.[10]

    [10] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6(5).

26. Ms Smith’s lower back pain was fully diagnosed. There is corroborative evidence of the condition provided by Dr Vago, Dr Saunders,[11] Dr Chu[12] and Dr Kaushik.[13] The government contracted doctor also corroborates the existence of the condition.[14] Each of them was appropriately qualified, having regard to the range of their general practices; and the respective radiologist qualifications and experience of Dr Chu and Dr Kaushik. To the extent that it is relevant, the registered occupational therapist also confirmed these opinions.[15]

    [11] Exhibit 1, pages 110-112.

    [12] Exhibit 1, pages 127-128.

    [13] Exhibit 1, page 181.

    [14] Exhibit 1, pages 290-299.

    [15] Exhibit 1, pages 280-289.

27. There are a number of reports from Ms Smith’s general practitioner, Dr Vago, over the period December 2016 to 3 October 2018, that consistently refer to her diagnoses as ‘lower back pain spasm’ and ‘lumbar spinal soft tissue injury/disease (L5-S1disc protrusion; L2/3,L3/4, L4/5 disc degenerations)’ and lumbar disc protrusion and sever chronic back pain.’ I prefer Dr Vago’s more contemporary and ongoing assessment to that of the other medical practitioners who looked at Ms Smith’s condition, especially when it was in the context of reliance upon confirmation from Dr Chu and Dr Kaushik’s reports about the respective and MRI scans.

28. Dr Vago’s opinion is also independently supported by Dr Saunders’ opinion, that there was, on review of the CT scans, ‘a significant L5/S1 disc protrusion with possible entrapment of the right S1 nerve roots’[16];

    [16] Exhibit 1, pages 110-112.

29. In his report of 15 September 2014, Dr Chu noted the following diagnoses:

    Mild L3/L4 to L5/S1 discovertebral spondylotic changes; L3/L4 posterocentral annular fissure and tiny disc protrusion; L4/L5 right lateral and far lateral annular fissure associated with minimal annular disc bulge; L5/S1 posterocentral annular fissure and disc protrusion…; L5/S1 mild left foraminal stenosis.[17]

    [17] Exhibit 1, pages 127-128.

30. Similarly, Dr Kaushik opined in the CT Scan Lumbar Spine Report of 15 March 2016, a diagnosis of ‘central lumbo-sacral focal disc protrusion which abuts the thecal sac and the proximal left S-1 nerve root.’[18]

    [18] Exhibit 1, page 181.

31. The identification of significant pathology by each of these medical practitioners is consistent with both a full diagnosis - as that term is to be understood in ordinary parlance - and the existence of corroborative medical evidence.

32. It is true that Dr Kwon[19] and Dr Loefler[20] expressed different opinions. It is not clear at all from Dr Kwon’s report that he himself ever reviewed the MRI and CT scans that were reviewed by Dr Chu and Dr Kaushik; or that he had or reviewed the reports of those doctors. In the absence of firm evidence that he did review the CT and MRI scans, I am not persuaded to attach much weight to his opinion.

    [19] Exhibit 1, pages 178-180.

    [20] Exhibit 1, pages 320.

33. Dr Loefler says in his report of 21 March 2016, that he did review the CT scan (but, so it would seem, not the MRI scan) and came to a different conclusion to that of Dr Chu and Dr Kaushik, namely that ‘the overall alignment is normal’ and ‘that her disc spaces are well preserved and there is no focal stenosis’. He does not appear to otherwise make observations on the matters identified by Dr Chow and Dr Kaushik which, as I have said, identified significant pathology. It is a little curious that his opinion is so different to the other medical practitioners. For these reasons, I prefer the evidence of Dr Vago, Dr Saunders, Dr Chu, Dr Kaushik and the government contracted general practitioner.

34. I should add that I am not at all persuaded that evidence from a spinal specialist is necessary in order to come to a firm conclusion about whether Ms Smith’s condition has been fully diagnosed. A radiologist is in as good a position, especially one equipped with an MRI scan to diagnose conditions relevant to back injuries. I note, in this respect, none of the medical practitioners, general practitioners, physicians, radiologists, the government contracted doctor or the registered occupational therapist had any difficulty in accepting - even in the absence of a spinal surgeon’s opinion - that Ms Smith’s spinal condition was fully diagnosed.

35. I find that during the relevant period, Ms Smith’s spinal condition was fully diagnosed.

    Has Ms Smith’s spinal condition been fully treated?

36. The next question is whether Ms Smith’s spinal condition has been fully treated. I am required to consider what treatment or rehabilitation Ms Smith has received[21] and whether any further treatment is continuing or planned.[22]

    [21] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6(5)(b).

    [22] Ibid s 6(5)(c).

37. Dr Vago confirmed that Ms Smith’s treatment was along ‘conservative lines’ and included physiotherapy, albeit this appears to have been many years ago. He also referred in his report to Ms Smith undertaking ‘regular home exercise and stretches’.[23] Ms Smith confirmed her exercise and stretch regime and her physiotherapy treatment to the registered occupational therapist when she saw her.[24] Dr Vago expressed the opinion that ‘all treatment for her physical disability has been exhausted. No more treatment has been recommended. No more specialist referrals have been made’. In this respect, Dr Vago appears to have expressed a strong opinion that treatment avenues for Ms Smith in the future would not be fruitful.

    [23] Exhibit 1, pages 238-240.

    [24] Exhibit 1, page 206.

38. The government contracted medical practitioner, whose opinion I have reproduced above, considered that ‘neurosurgeon/Orthopaedic Specialist/Pain Management Review and post specialist review rehabilitation such as physiotherapy/hydrotherapy, analgesia with review’ possibly could improve Ms Smith’s prognosis.[25]

    [25] Exhibit 1, page 292.

39. The difference in opinion between the two doctors is obvious and well defined, but three matters cause me to prefer Dr Vago’s opinion. First, he was the treating general practitioner who had an overall familiarity with Ms Smith and her condition over a period of about 9 years. He was, in the view I take, better placed to assess Ms Smith’s treatment options. Second, referral to a specialist is not, of itself, treatment. The government contracted medical practitioner does not appear to identify any treatment beyond the word ‘review’ and subsequent physiotherapy/hydrotherapy. There is no reasoned basis for a conclusion that such ‘treatment’ would achieve anything at all. Third, the opinion, having failed to identify any treatment, is also expressed only in terms of possibilities without any apparent regard to the lapse of time and the treatment that had been undertaken before. The opinion is in this respect incomplete. I prefer Dr Vago’s firsthand knowledge of Ms Smith and his assessment that further treatment would not change anything.

1. I find that Ms Smith’s back condition was, during the relevant period, fully treated.

   Has Ms Smith’s spinal condition been fully stabilised?

2. The next question is whether Ms Smith’s condition is fully stabilised. This requires consideration of whether Ms Smith has undertaken reasonable treatment for the condition and whether any further treatment is unlikely to result in significant functional improvement, to a level enabling Ms Smith to work in the next 2 years.[26] Alternatively, if Ms Smith has not undertaken reasonable treatment options for her condition, whether significant functional improvement to a level enabling her to undertake work in the next 2 years would not be expected even if she had undertaken reasonable treatment; or whether there are other medical or compelling reasons for her not to have undertaken reasonable treatment.[27]

   [26] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6(6).

   [27] Ibid.

3. The only identified treatment options for Ms Smith appear to by radiologically guided injections into the lumbar spine, physiotherapy, exercise and stretch routines. Ms Smith refused the option of lumbar spine injections because of the significant complications she had with injections into her right ankle. Dr Saunders considered this was not an unreasonable position for Ms Smith to take.[28] Dr Saunders’ opinion is common sense. I adopt it.

   [28] Exhibit 1, page 111.

4. The evidence is that Ms Smith undertook physiotherapy albeit without success and continued with her exercise and stretch regime. These appear to be the length and breadth of treatment options that were afforded to Ms Smith. They were reasonable treatment options. They have not helped her.

5. It is significant; again, that Dr Vago expressed the view that all treatment options had been exhausted. As the treating practitioner over such a long period of time, Dr Vago was placed in the best position to make that assessment.

6. I find that Ms Smith’s back condition was, during the relevant period, fully stabilised.

7. I should add that even if I found that Ms Smith had not undertaken reasonable treatment, I would have concluded, in light of Dr Vago’s opinion, that there would have been no significant functional improvement to a level enabling Ms Smith to return to work in the next 2 years. Again, I do not consider the ‘treatment’ referred to by the government contracted medical practitioner to be treatment at all because it does not, with any specificity, identify what would be undertaken by any specialist to address Ms Smith’s condition.

8. Ms Smith’s condition is permanent and is likely to persist for more than 2 years such that she should be assigned an impairment rating. There is evidence that Ms Smith is unable to bend, walk, squat or leave her home, unable to do grocery shopping and her sitting is restricted for less than 10 minutes such that her impairment rating is severe and attracts an assignment of 20 points. This is confirmed by the registered occupational therapist’s opinion.

9. In view of my findings about Ms Smith’s spinal condition, it is strictly speaking unnecessary to make a finding about any other aspect of her case. I should, nonetheless, note the Secretary conceded that Ms Smith had during the relevant period, a fully diagnosed, fully treated and fully stabilised lower limb condition such that would attract an assignment of 10 points on the Impairment Table.

   DOES MS SMITH HAVE A CONTINUING INABILITY TO WORK?

10. Section 94(2) of the Act requires the Tribunal to be satisfied of three matters. First, if the impairment is not a ‘severe impairment’ (namely, an impairment that attracts 20 or more points on one item in the Impairment Table), that the person has participated in a program of support as that term is defined in the Act. Second, that the impairment is of itself sufficient to prevent the person from doing any work in the next 2 years independently of a program of support. Third, that the impairment is of itself sufficient to prevent the person from undertaking a training activity in the next 2 years; or if the impairment did not prevent the person from undertaking a training activity - such activity is unlikely, because of the impairment, to enable the person to do any work independently of a program of support. I will deal with each of these in turn.

11. Ms Smith’s spinal condition, having rated 20 points on the Impairment Table under a single impairment, is classified as a ‘severe impairment’ in accordance with the definition in subsection 94(3B) of the Act. As such, she does not need to demonstrate that she has participated in a program of support as required by subsection 94(2)(aa) of the Act. The first condition in subsection 94(2) of the Act is satisfied.

12. For the purpose of subsection 94(2) of the Act, ‘work’ is defined by subsection 94(5) to mean ‘work for at least 15 hours a week…’. The registered occupational therapist who reviewed Ms Smith’s case and prepared the report dated 30 November 2018, expressed the opinion that Ms Smith’s capacity to work within two years was between 0 and 7 hours per week whether this was with or without intervention. The registered occupational therapist said in support of that conclusion:

    Ms Smith’s work capacity is affected by her lower limb and lower back condition which significantly impacts on her ability to sit, stand, bend, lift, walk and manage physical activity in the open labour market. These symptoms will reduce her capacity to attend and persist in a workplace setting, with typical employment demands likely to exacerbate her symptoms. Based on above her work capacity is 0–7 hours per week.

    Disability specific intervention is not recommended due to very limited capacity. As such future is deemed to be 0 -7 hours per week.[29] [replicated as in original].

    [29] Exhibit 1, page 287.

13. The opinion of the registered occupational therapist in the Job Capacity Assessment Report of 30 November 2018 is significant in respect of this matter (and the next one) given the specialist knowledge and experience such people bring to these issues.[30] There is no reason to call that opinion into question.

    [30] Uebergang v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642, [28]-[29].

14. I find that Ms Smith is incapable of performing work as that term is defined in subsection 94(5) of the Act for at least 2 years. The second requirement is satisfied.

15. Third, it is tolerably clear that Ms Smith’s participation in a training program in the next two years, even if possible, would be to no avail. Again, the registered occupational therapist in the Job Capacity Assessment Report of 30 November 2018 expressed the opinion that Ms Smith ‘would not benefit from participation in any program’. Her finding in relation to Ms Smith’s capacity to work referred to above is also relevant in this regard.

16. I find that Ms Smith would not be assisted by participation in a training activity such that would assist her to return to the workforce within two years by reason of her incapacity.

    CONCLUSION

17. The decision under review is set aside and in substitution, it is decided that the Applicant was qualified to receive the disability support pension from 4 October 2018.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

...........[sgd].............................................................

Associate

Dated: 13 March 2020

Date of hearing:	10 December 2019
Applicant:	In person
Solicitors for the Respondent:	Mr Anthony Gardner, Services Australia