SYOW-CHING LIN and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 508
•3 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 508
ADMINISTRATIVE APPEALS TRIBUNAL No. 2007/2600, 2007/2601, 2009/1342
GENERAL ADMINISTRATIVE DIVISION
Re SYOW-CHING LIN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: G. D. Friedman, Senior Member Date:3 July 2009
Place:Melbourne
Decision: The Tribunal affirms the decisions under review.
(sgd) G.D. Friedman
Senior Member
COMPENSATION - sorting of mail - neck and right shoulder pain - whether entitled to present benefits - psychiatric condition - whether work-related - whether entitled to payment of psychologist and hydrotherapy sessions
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 16(1), 16(2), 19
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Tippett v Australian Postal Corporation [1998] FCA 335Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
3 July 2009G.D. Friedman, Senior Member
1. Syow-Ching Lin has worked as a mail officer since 1995. She suffered neck, shoulder, hand and lower back pain at work in 2005. She submitted a claim for compensation for muscular injury to neck and right shoulder in May 2005 for which the respondent accepted liability. She required treatment for a psychological condition for which the respondent denied liability. The respondent also denied liability for ongoing hydrotherapy sessions at a swimming pool. In 2007 the respondent decided that any work-related injuries had resolved, and in 2009 issued a determination that Ms Lin does not suffer from any work-related psychological condition.
ISSUES
2. The issues before the Tribunal are:
·Did Ms Lin continue to suffer from a compensable physical injury affecting the neck and right shoulder from October 2006? If so, is she entitled to compensation for the cost of hydrotherapy pool membership? (Application 2007/2601)
·Is Ms Lin entitled to compensation for a psychiatric injury? (Application 2009/1342) If so:
·Is Ms Lin entitled to compensation for the cost of psychological treatment? (Application 2007/2600)
LEGISLATION AND CASE LAW
3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in effect at the relevant time, provides that:
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.
Injury is defined in s 4(1) of the SRC Act as:
(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. In s 4(1) disease includes any ailment suffered by an employee. Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). Aggravation includes acceleration or recurrence. Section 16(1) and (2) of the SRC Act provide that an employee suffering from an injury is entitled to compensation for the cost of medical treatment regardless of whether the injury results in incapacity for work, impairment or death.
5. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 the Full Federal Court applied Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and held at 323:
…once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree.
6. On the question of material contribution required for liability in respect of an ailment, Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 referred to an evaluative threshold below which a causal connection with an ailment may be disregarded. He held that this requires an evaluation of all relevant contributing factors in deciding whether the employment contributed to the necessary threshold level in relation to the ailment.
7. In Tippett v Australian Postal Corporation [1998] FCA 335 Finkelstein J held:
In other words, there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition. In considering the meaning of the word "aggravate" in the Compensation Act, which is the only one of the four words that appeared in the definition of "injury" in the New South Wales statute considered in Semlitch, it has been held that the same principles apply; that is to say an injury will be aggravated if the experience of the injury is increased or intensified… Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury.
DID MS LIN CONTINUE TO SUFFER FROM A COMPENSABLE PHYSICAL INURY AFFECTING THE NECK AND RIGHT SHOULDER FROM OCTOBER 2006?
8. Ms Lin told the Tribunal that she came to Australia in 1982 from Taiwan, where she had worked as a secondary school teacher after obtaining tertiary qualifications in science and teaching. She had three children, and separated from her husband in 1986. Ms Lin completed an Advanced Certificate in Information Technology in 1990 and an Associate Diploma in Business (Computer Programming) at Dandenong TAFE College in 1991, followed by a Bachelor of Technology (Computer Studies) at Monash University in 1994. She commenced with the respondent in June 1995 at the Melbourne Mail Centre sorting mail at night because she had a young family to support. She said that on occasions she was appointed as acting supervisor, which required her to lift heavy articles such as bags and trays, and to move heavy equipment. She stated that between 1995 and 1999 she experienced pain in her right shoulder and wrist but continued working without taking time off.
9. Ms Lin stated that in 1999 she transferred to day shift duties for family reasons, and in 2002 she relocated to the Dandenong Letter Centre, where she rotated between machine sorting of mail and manual sorting using a sorting frame. She said that at Dandenong she suffered increasing episodes of pain in her neck, right shoulder, arm and wrist. Ms Lin gave details of eight incidents between 2002 and 2005 where she experienced pain. On some occasions she took sick leave. Ms Lin told the Tribunal that her duties as a mail sorter required her to lift heavy objects and operate various types of machinery. She said that she worked conscientiously and enjoyed her work environment, but the injuries to her right wrist and shoulder on 12 November 2002 were of slow onset. She stated that she consulted various doctors and continued to work.
10. The major incident occurred on 13 April 2005. Ms Lin explained that she sustained muscular injury to her neck, right shoulder and lower back after operating a spectrum letter/magazine sorting machine and lifting heavy tubs of mail. She said that Dr B Fountain, her general practitioner, diagnosed soft tissue injury and she was placed on modified duties. Ms Lin explained that the pain persisted and Dr Fountain prescribed anti-inflammatories. Her first medical certificate was issued on 4 May 2005, and on 11 May 2005 she lodged a claim for compensation for muscular injury to the neck and right shoulder for injuries arising from the incident on 13 April 2005. She said that on 24 May 2005 the respondent accepted liability for muscular injury neck & right shoulder girdle from an incident on 13 April 2005.
11. In relation to treatment Ms Lin stated that she undertook physiotherapy until the respondent refused to continue payment after about 20 sessions in October 2005. She said that she began hydrotherapy in a swimming pool, and continued after the respondent ceased payment because she believed that the treatment was beneficial. She told the Tribunal that after the respondent accepted liability for her injuries she was placed on various return to work programs, but the work involved in the plans increased the pain in her neck, back and arms. Ms Lin said that on 6 July 2007 she was directed to begin immediate sick leave on the basis that she had not provided sufficient medical evidence in accordance with a previous direction, so was subject to the respondent’s non-work-related medical restrictions policy. She has not worked since then.
12. Dr Fountain told the Tribunal that Ms Lin first attended his clinic on 13 November 2002 complaining of right wrist, shoulder and neck pain. He said that he first treated her on 4 May 2005 after lifting items at work on 13 April 2005, and he believed that the symptoms were consistent with soft tissue injuries affecting the right side of the neck and right shoulder girdle, and included any soft tissues of the body other than bones, which might also include vertebral discs. Under cross-examination Dr Fountain agreed that there was no mention of any work-related injury to a cervical disc in any medical certificates or reports prepared by him. He also agreed that in his first medical certificate he had referred to muscular injury rather than soft tissue injury of the neck and right shoulder.
13. Dr Fountain stated that he referred Ms Lin for radiological investigation including an X-ray and CT scan of the cervical spine. In a report to the respondent on 1 November 2006 he noted that the findings were in the normal range for her age group. He also stated that Ms Lin’s symptoms subside substantially when she is not at work or is on holidays, and that her symptoms would probably not be resolved while she continues to work in a physical job. Under cross-examination he agreed that Ms Lin’s symptoms have remained substantially unchanged since July 2007 even though she has not worked during this period, which might be explained by the activities of everyday living. Dr Fountain also agreed that after the first one or two years he based his opinion on her account of the issues affecting her, and said that he had no reason to doubt her account of her physical pain, so he saw no need to examine her on each occasion that she sought a medical certificate.
14. Mr R Simm, orthopaedic surgeon, told the Tribunal in a report dated 25 February 2008 that he assessed Ms Lin and found her to be a rather intense depressed person who was focused on her physical condition and her compensation claim. He diagnosed unresolved aggravation of early cervical disc degeneration of the cervical spine. Mr Simm said that work duties from November 2002 were responsible for the exacerbation of symptoms from cervical spine degeneration. He said that her symptoms of neck pain and referred pain into the right upper limb were consistent with this diagnosis.
15. Mr Simm attributed right shoulder symptoms to referred pain from the cervical spine. He said that Ms Lin’s condition was due to age and constitutional factors, but that at the time of onset of symptoms the severity of those symptoms can be altered by physical factors. In a further report dated 26 March 2009 Mr Simm stated that, after taking into account that an ultrasound showed a normal rotator cuff in the shoulder, he did not change his previous opinion that right shoulder symptoms appeared to be referred pain from the cervical spine. He acknowledged the presence of non-organic signs and symptoms, but gave Ms Lin the benefit of the doubt that there was work-related aggravation of degenerative cervical pathology, particularly as she described lifting weights up to 16 kilograms.
16. In oral evidence Mr Simm noted that Ms Lin’s symptoms have persisted since ceasing work in 2007 and stated that, in addition to the lifting by Ms Lin in the course of her duties, her slight build and lack of height may have contributed to the physical strain on her cervical spine. He said that sitting for prolonged periods may have aggravated her symptoms, and explained that aggravation implies that damage to the disc will persist in the long term, while exacerbation is short-term pain which may be reversible in 6-12 weeks of ceasing the duties that led to the symptoms. Mr Simm stated that lifting weights of 15 kilograms regularly for a period of more than five years contributes to the worsening of degenerative disc disease, and that this proposition was supported by epidemiological studies. Under cross-examination Mr Simm agreed that the results of epidemiological studies were not absolutely consistent. He also agreed that essentially he had ignored the findings on formal examination because Ms Lin’s clinical presentation was that of a functional non-organic condition.
17. Dr K Fraser, rheumatologist, told the Tribunal in a report dated 15 August 2006 that he assessed Ms Lin at the request of the respondent. He found some minor ongoing age-related degenerative changes in the cervical spine, but no ongoing work-related injuries. He said that he could not rule out soft-tissue injuries in the right wrist, neck and shoulder as a result of her work, but that any such injuries would have resolved some time ago. Dr Fraser concluded:
Quite clearly, the marked restrictions of neck, right shoulder and back movements that she now demonstrates are due to non-organic factors of a psychosocial nature. There can be no other explanation for the bizarre physical findings and the obvious overreaction.
18. In a further report dated 6 May 2008 for the purposes of a medico-legal assessment Dr Fraser found that Ms Lin had restricted movement in her cervical spine but a greater range of neck movement without apparent pain, and a full range of movement in her right wrist. He said that his examination reinforced his earlier opinion, because Ms Lin became distressed when referring to her previous work in Taiwan, the tedious nature of her work as a mail sorter, and her family circumstances involving a failed marriage and her responsibilities as a single parent.
19. In a further report dated 5 March 2009 Dr Fraser referred to Mr Simm’s second report, X-rays and CT scans and said that his previous conclusions were unchanged. Dr Fraser diagnosed very mild pre-existing lumbar spondylosis consistent with her age and completely unrelated to her employment. He did not consider that there was any work-related aggravation of the condition. He emphasised …abundant evidence of non-organic factors and voluntary exaggeration of her symptoms and signs.
20. In oral evidence Dr Fraser stated that he disagreed with Mr Simm’s conclusions of an unresolved aggravation of cervical disc degeneration resulting from work at the mail centre and lifting of weights of up to 15 kilograms. He stated that radiological evidence is consistent with Ms Lin’s age and age-related degenerative change. He said that he knows of no epidemiological studies or published work that support Mr Simm’s proposition that regular lifting of 15 kilograms over five years leads to aggravation of pathology of the cervical spine. Under cross-examination Dr Fraser agreed that he might have been influenced by what he described as Ms Lin’s bizarre behaviour during the assessment such as adopting strange postures in getting on and off the examination couch. He also agreed that pain arising from a degeneration of the cervical spine might cause a muscle spasm which in turn may lead to an increase in the level of pain experienced by Ms Lin.
21. In a report dated 25 August 2005 Dr J Harmer, consultant physician and rheumatologist, stated that she found some underlying disc degeneration at the C5/6 level affecting the cervical spine, and suspected that Ms Lin’s work activities on 13 April 2005 contributed an element of overuse affecting the muscles around her neck and right shoulder and may have aggravated the disc degeneration. Dr Harmer felt that heavy lifting or future overuse could further aggravate the degenerative problem and that the component of the problem caused by the work-related injury was temporary.
22. In a report dated 2 July 2006 Dr S Soliman, general practitioner, stated that Ms Lin had suffered a temporary aggravation of pre-existing cervical spine degeneration in April 2005. He said that he believed that there was a considerable element of non-organic component to her injury, and that she was capable of restricted duties, subject to psychological barriers.
23. The Tribunal takes into account that Dr Fountain made no mention of work-related cervical disc injury in any medical certificate or report, preferring to use the terms soft tissue injury or muscular pain/and or strain. It was only in oral evidence that he expanded on his findings to refer to the cervical spine. Mr Simm’s evidence that Ms Lin has an unresolved aggravation of degenerative pathology of the cervical spine caused by heavy lifting over a number of years was based on epidemiological studies, but he was unable to identify such studies or confirm the consistency of any findings. The Tribunal considers that his conclusions were not supported by objective evidence and did not give adequate weight to the existence of non-organic symptoms, and called into question the basis for any ongoing complaints of pain to the neck and right shoulder.
24. The Tribunal prefers the evidence of Dr Fraser, whose findings were consistent with the radiological tests that indicated degenerative changes to the cervical spine that were within the normal range for a person of her age. Dr Fraser also placed appropriate reliance on Ms Lin’s presentation, her prior history of incidents at work and the possibility that non-organic psychosocial factors may have played a role in her complaints of continuing symptoms of neck and right shoulder pain. This supported the opinion of Dr Soliman. Dr Fraser had the opportunity to examine Ms Lin on two subsequent occasions and these enabled him to reinforce his opinion that any soft tissue or muscular injury sustained on 13 April 2005 would have been resolved by October 2006.
25. For these reasons the Tribunal finds no evidence of ongoing work-related muscular injury or work-related aggravation of cervical disc pathology, and that any continuing symptoms of pain in the neck and right shoulder suffered by Ms Lin are due to non-organic factors of a psychosocial nature. Accordingly Ms Lin did not continue to suffer from a compensable physical injury affecting the neck and right shoulder from October 2006, and the respondent has no present liability for compensation for medical costs under s 16 of the SRC Act, and no liability for compensation for incapacity payments under s 19 of the SRC Act. Therefore Ms Lin is not entitled to compensation for the cost of hydrotherapy pool membership.
IS MS LIN ENTITLED TO COMPENSATION FOR A PSYCHIATRIC INJURY?
26. Ms Lin stated that on 28 June 2006 she began consulting Dr B Strubel, psychologist, following a referral by Dr Fountain, and the consultations ceased on 13 September 2006. She said that she was dismayed when the respondent denied liability for psychological treatment in August 2006. She said that she became depressed because of her injuries and her belief that the respondent was trying to terminate her employment. Ms Lin said that in June/July 2007 she went to Taiwan to visit relatives, and on 6 July 2007 the respondent directed her not to attend work because she had failed to provide requested medical information, although she maintained that her doctor had issued all relevant medical certificates. She said that she became more anxious and depressed, and has not worked since then. She resumed consultations with Dr Strubel on 10 July 2007, and on 30 July 2008 she resumed treatment with Dr Katz, consultant psychiatrist, until February/March 2009. She has been receiving Centrelink sickness benefits since March 2008, but remains an employee of the respondent. Under cross-examination Ms Lin agreed that one of her daughters has been diagnosed with a psychiatric condition and is receiving appropriate treatment and medication.
27. In a report dated 17 September 2006 Dr Strubel stated that he has been Ms Lin’s treating psychologist since 28 June 2006. He said that she was suffering from an adjustment disorder with mixed anxiety and depressed mood, together with a chronic pain disorder. Dr Strubel concluded that Ms Lin’s psychological condition was caused by the compensable work-related injury and exacerbated by her subsequent treatment at work (eg battles with Australia Post for further physiotherapy treatment and denial of her psychological injury claim). In a further report dated 31 July 2008 Dr Strubel said that her condition was aggravated by the parlous treatment she received from Australia Post in denying liability and apparent reluctance or inability to consider her for suitable alternate sedentary duties.
28. Dr Strubel told the Tribunal that Ms Lin indicated to him that her symptoms were aggravated by her employer’s lack of fair play in accepting liability for her injury and later denying it. He described Ms Lin as honest, although at times she was an agitated, incoherent historian when distressed. He said that initially Ms Lin showed a lack of affect, wariness, borderline paranoia, and an inability to trust others and to express her emotions openly and meaningfully. He attributed her apparent secretiveness, lack of trust and wariness of others to cultural factors, abandonment and betrayal by her husband and later the respondent, and her desire not to dwell on the past or to feel sorry for herself. Dr Strubel emphasised:
It is this wariness, which is compounded by having a rich fantasy as well [as] inner values and personal boundaries that others may be unaware of, that can be misconstrued or misunderstood by others who may not know her well…Ms Lin would be shocked to know that she comes across as lacking in credibility when put under pressure by WorkCover doctors.
29. In oral evidence Dr Strubel stated that Ms Lin’s chronic pain had caused her anxiety and depression. He said that issues such as cultural factors, her daughter’s illness, her family situation and her move from Taiwan had had minimal effect on her psychological condition. Under cross-examination he agreed that in reaching his conclusions he had relied on the history she gave to him. He described Ms Lin as a private person who has felt humiliated by her lack of money since ceasing work in July 2007; the loss of her social network of colleagues at the Letter Centre; and the effect on her of litigation against her employer. He agreed that on this basis her problems could be considered to be multifactorial.
30. In a report dated 15 March 2009 Dr Katz stated that he was Ms Lin’s treating psychiatrist between 30 July 2008 and 11 March 2009. Dr Katz said that she first presented to him as having an anxious, depressed and restricted affect. He diagnosed major depressive disorder. Dr Katz stated that, from the history Ms Lin provided about her musculo-skeletal pain, the depression occurred after the onset of her work as a mail sorter, so that her vocational circumstances have contributed to her depression. He said that she is unable to work because of her level of pain and a significant ongoing depressive illness. Dr Katz concluded:
In summary Ms Syow Ching Lin presented as a woman at the quintessential life transition of the peri-menopausal years who presented with a longstanding and recently exacerbated depressive disorder in the context of significant work-related injury, decadence in her physical health with chronic pain and a number of social disadvantages that she had also been bedevilled by. These include but are not limited to social isolation, financial turpitude, unemployment and a sense of feeling rejected and repudiated by her work colleagues with the loss of her vocational role.
31. In oral evidence Dr Katz stated that he agreed with Dr Strubel that the depressive condition originated in about 2006. He affirmed his opinion that there was a relationship between Ms Lin’s physical injury and her psychiatric condition. Under cross-examination he agreed that when she described her family history she did not mention her daughter’s illness. He also stated that his diagnosis of depression was based on the history given by her and her clinical signs of being tearful, agitated and indecisive.
32. Dr Fountain stated that he referred Ms Lin to Dr Strubel because of her anxiety and stress arising from her neck and shoulder pain. Under cross-examination he agreed that he relied on her account of her injuries, but had no reason to doubt her honesty. He said that on many occasions he had urged Ms Lin to leave the mail centre and seek employment that was more appropriate for her qualifications and experience, but she refused because she loved the work, and the respondent had not suggested any alternative work within the organisation.
33. In a written report dated 19 June 2008 Dr Y Greenberg, consultant psychiatrist, stated that she examined Ms Lin for the purposes of a medico-legal assessment. She found that Ms Lin suffered from an adjustment disorder with depressed or anxious mood rather than depression. Dr Greenberg stated that Ms Lin is unable to work, although the incapacity for work is not a consequence of the psychological injury. Dr Greenberg concluded that the psychological condition was caused by multiple personal and family issues such as her daughter’s illness, a failed marriage and limited job prospects. She said that the physical injury is probably not a significant cause of Ms Lin’s psychological symptoms, although the adjustment disorder may have been contributed to, possibly not materially, but at least to some extent by the physical injuries allegedly sustained on 13 April 2005. She said that an aggravation of a nervous condition may have been contributed to in a material degree by the injury in April 2005, although the aggravation has resolved. Under cross-examination she agreed that Ms Lin was angry, upset, tearful and agitated during the examination, and that her daughter’s psychological condition was diagnosed in September 2007, which was after the diagnosis of Ms Lin’s condition by Dr Strubel in June 2006.
34. There was no dispute between the parties, and the Tribunal accepts, that Ms Lin suffers from a psychiatric condition, which is a disease and is outside the boundaries of normal mental functioning and behaviour (Comcare v Mooi (1996) 69 FCR 439). After considering the medical and other evidence the Tribunal finds that the condition manifested itself in about June 2006.
35. In determining whether there was a causal connection between Ms Lin’s compensable physical injuries and her psychiatric injury the Tribunal takes into account its findings that the effects of work-related injuries to Ms Lin’s neck and right shoulder ceased in October 2006. This casts doubt on the weight to be given to the opinions of Dr Strubel and Dr Katz, which were based on the assumption that Ms Lin’s ongoing complaints of physical pain continued to be related to her duties with the respondent.
36. In any event the Tribunal prefers the evidence of Dr Greenberg, who took a thorough history and examined reports of Dr Strubel and other medical practitioners. She recorded factors such as Ms Lin’s failed marriage, her difficulties in securing employment more suited to her educational qualifications, and difficulty in adjusting to living in Australia, which pre-date Ms Lin’s diagnosis of psychiatric injury in June 2006. As noted by Dr Greenberg, subsequent non-work-related aggravating factors such as decisions by the respondent unfavourable to Ms Lin, psychiatric issues involving Ms Lin’s daughter, financial difficulties and feelings of isolation after leaving the workplace where she had developed social networks, had an impact on her psychological or psychiatric state and were the major cause of her psychiatric condition.
37. In addition the Tribunal concludes that Ms Lin gave a less than frank history to Dr Strubel and Dr Katz. She did not mention her daughter’s illness to Dr Katz, and Dr Strubel conceded that Ms Lin’s problems could be considered to be multifactorial. He admitted that his negative comments about the respondent’s treatment of Ms Lin such as parlous treatment and lack of fair play were based entirely on her account of her situation and he did not seek to clarify the situation with the respondent or test the veracity of Ms Lin’s claims.
38. For these reasons the Tribunal finds that the requisite causal connection between the psychiatric injury suffered by Ms Lin and the compensable physical injury and/or employment has not been made out. Therefore there has not been a material contribution by employment to Ms Lin’s psychiatric condition. Accordingly the respondent has no liability for compensation under s 14 of the SRC Act for a psychological condition or under s 16 of the SRC Act for psychological treatment.
DECISION
39. The Tribunal affirms the decisions under review.
I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Mara Putnis
Associate
Dates of hearing: 6, 7, 8 and 9 April 2009, 21 May 2009
Date of final submissions: 3 July 2009
Date of decision: 3 July 2009Counsel for the applicant: Ms J Bornstein
Solicitor for the applicant: Maurice Blackburn
Counsel for the respondent: Mr R Seit
Solicitor for the respondent: Sparke Helmore
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