Tosswill, C.D.W v Repatriation Commission
[1995] FCA 248
•24 Apr 1995
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION No NG 372 of 1994
On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr M.D. Allen (Senior Member), Brigadier J.A. Hooper CBE (Member) and Vice Admiral D.W. Leach AC CBE LVO (Member).
BETWEEN:
CYRIL DE WITT TOSSWILL
Applicant
- and -
REPATRIATION COMMISSION
Respondent
Coram: Olney J
Place: Melbourne (Heard in Sydney)
Date: 24 April 1995
MINUTE OF ORDER
THE COURT ORDERS THAT:
The appeal be allowed with costs.
The decision of the Administrative Appeals Tribunal made on 27 May 1994 be set aside and in lieu thereof there be substituted a decision that the decisions of the Veterans' Review Board of 5 February 1993 and of the respondent's delegate of 1 May 1992 be set aside.
NOTE:Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION No NG 372 of 1994
On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr M.D. Allen (Senior Member), Brigadier J.A. Hooper CBE (Member) and Vice Admiral D.W. Leach AC CBE LVO (Member).
BETWEEN:
CYRIL DE WITT TOSSWILL
Applicant
- and -
REPATRIATION COMMISSION
Respondent
Coram: Olney J
Place: Melbourne (Heard in Sydney)
Date: 24 April 1995
REASONS FOR JUDGMENT
This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) on a question of law pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975.
BACKGROUND
The applicant was granted a war disability pension in 1963. After he turned 60 in 1982 he was granted a service pension. On 1 September 1983 the respondent's delegate determined that the war disability pension be increased to the intermediate rate with effect from 7 January 1983. On 1 May 1992, following a review of the applicant's entitlement, a delegate of the respondent determined that the rate of his disability pension be reduced to 100% of the general rate with effect from 7 January 1983. The applicant applied to the Veterans' Review Board (the VRB) to review the determination of 1 May 1992 but on 5 February 1993 the VRB affirmed the delegate's determination. The applicant then applied to the Tribunal for review of the VRB's decision and on 27 May 1994 the Tribunal dismissed the application and affirmed the decision of the VRB. The present appeal is from the Tribunal's decision of 27 May 1994.
THE LEGISLATIVE SCHEME
In September 1983 when the respondent first determined that the applicant should be paid a pension for incapacity at the intermediate rate the relevant criteria were set out in paragraph 6 of Schedule 1 to the Repatriation Act 1920 (as amended). That paragraph provided:
Where the incapacity of a member of the forces is such that he is unable to earn a living wage by reason that he is unable to engage in a remunerative occupation except on a part-time basis or intermittently, the amount specified in column 3 of the table in this schedule shall, in its application in relation to him, be deemed to be $140.30.
The term "living wage" was not defined in the Repatriation Act.
The Repatriation Act was repealed upon the coming into operation of the Veterans' Entitlement Act 1986 (the VEA) on 22 May 1986. By virtue of s 4(2) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, the VEA applies to and in relation to the applicant as if his pension for incapacity had been granted to him under Part II of the VEA.
The particular parts of Part II of the VEA which are relevant in this proceeding are ss 23, 24A and 31. Section 23 deals with entitlement to a pension at the intermediate rate, s 24A makes provision for the continuation of the payment of pensions, inter alia, at the intermediate rate except in certain specified circumstances and s 31 deals with the powers of the respondent to review decisions previously made by it. The following portions of ss 23, 24A and 31 have application in this case:
(1) This section applies to a veteran if:
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate;
(b)the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c)the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d)section 24 or 24 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime)
ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking - if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3)For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i)if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b) ...
24A. Where the Commonwealth is or becomes liable to pay a pension to a veteran at the rate applicable under section 23 or 24, that rate continues, while a pension continues to be payable to the veteran, to apply to the veteran unless:
(a)the decision to apply that rate of pension to the veteran would not have been made but for a false statement or misrepresentation made by a person;
(b)in the case of a veteran to whom section 23 applies:
(i)the veteran is undertaking or is capable of undertaking remunerative work of a particular kind for 50% or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full time basis; or
(ii)in a case where subparagraph (i) is inapplicable to the work which the veteran is undertaking or is capable of undertaking - the veteran is undertaking or is capable of undertaking that work for 20 or more hours per week; or
(c) ...
31.(6) Where the Commission is satisfied that:
(a)having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board of the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;
(b)by reason of a refusal or failure of any person to comply with a provision of this Act;
(c)by reason of a refusal or failure of a veteran to comply with a notice served on the veteran under subsection (5A) or with a request made under paragraph 32 (1)(c); or
(d)by reason of the circumstances referred to in a paragraph of section 24A being applicable to the veteran;
in a case to which paragraph (a), (b) or (c) applies, a pension or attendant allowance should be cancelled or suspended or is being paid at a higher rate than it should be or, in a case to which paragraph (d) applies, a pension is being paid at a higher rate than it should be, the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension or attendant allowance, or decrease the rate of the pension, as the case may be, with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination.
Where a determination is made under subsection (6):
(aa)by reason of the Commission having regard to a matter that affects the payment of a pension or attendance allowance in the circumstances specified in paragraph (6)(a); or
(a)by reason of the refusal or failure of a person to comply with a provision of this Act, other than:
(i)subsection 127 (4) in relation to a notice under paragraph 127 (1)(f); or
(ii)subsection 128 (4); or
(b)by reason that an amount has been paid by way of pension or attendant allowance that, but for the false statement or misrepresentation of any person, would not have been paid;
a date earlier than the date of the determination may be specified in the determination as the date as from which the cancellation, suspension or decrease, as the case may be, is to take effect.
THE FACTS
For the most part, the facts of the case are not controversial and are established by reference to various applications and reports associated with the applicant's dealings with the respondent since 1982. In his application for service pension dated 7 April 1982 the applicant stated that he was not then employed or self employed, he having retired from practice as a public accountant on 31 December 1981. Medical reports dated 31 March 1983 and 29 April 1983 record
statements made to the same effect to examining doctors. The report dated 31 March 1983 indicates the applicant's then current activities were:
"consultant to old practice 3 hrs/wk. Periodically country clients 20 hrs/wk"
and the report dated 29 April 1983 records that the applicant:
Sold his accountancy practice 16 months ago because everything was a problem to him (he was just on 60).
He now casually consults for the new partners, but tends to keep away from them, because he gets tense whenever he goes back.
In a form dated 26 April 1984 the applicant stated that he had ceased work in December 1981 and that his former job did not exist. He left blank a section of the form which required him to state whether he was still employed either full time or part time and another section requiring him to give particulars of his earnings. In the same form in response to the question "What is, or was, your usual occupation" he underlined the word "was" and responded "Public Accountant".
The applicant's income tax return for the year ended 30 June 1983 shows that he earned fees in that year of approximately $9,500.
The Tribunal found as a fact that the applicant-
had recommenced practice as an accountant in the period between January and June 1982, or towards the end of 1982 at the latest.
On 1 December 1986 the applicant entered into partnership with two other accountants under a partnership agreement which required him to devote his whole time and attention to the partnership business. The applicant said in evidence that he could only devote 25 hours per week on average to the partnership and although the Tribunal made no finding as to the actual hours worked, it did find by inference from the partnership accounts that his partners were content as to the hours he worked and were satisfied that he was complying with the partnership agreement. The Tribunal also found that the applicant was a full and equal member of the partnership and no loss of income accrued to him as a result of any war-caused incapacity, save and except the undefined possibility that had he worked longer hours the partnership profits may have been greater leading to a larger pool for distribution. The applicant retired from the partnership in December 1989 and has since continued to practice on his own account in a reduced capacity. He employs an accountant on a contract basis to do preparatory work whereas the work of completing tax returns etc. is done by himself. He says he works up to 22 to 23 hours per week in his practice. He conceded that he had reduced his hours of work because of his age but maintained that his ability to work had been reduced due to incapacity occasioned by his war-caused diseases.
The Tribunal made the following further findings of fact:
Insofar as the applicant's entitlement to pension in September 1983 is concerned, the applicant was not prevented from earning a living wage by reason of his incapacity but rather he made a deliberate decision to reduce his work load and obtain remuneration by a combination of the service pension, incapacity pension and such accounting work as he decided it would be worth his while to undertake.
The applicant deliberately misrepresented his position in the documents he forwarded to the Department of Veterans' Affairs and at his medical examination on 31 March 1983 and was concerned to give to the department the impression that he had fully retired from practice.
There is no evidence that in the period he was in partnership between 1986 and 1989 that he suffered a loss of salary, wages or earnings as a result of war-caused incapacity.
The applicant's war-caused incapacity played some part in his retirement from the partnership in 1989 but his age also played a part.
As at 31 December 1989 and to the date of the hearing before the Tribunal the applicant has been content to draw a service pension and disability pension and to practice as an accountant at a reduced pace. This is due to two factors, namely, war-caused incapacity and age.
Based on these findings the Tribunal concluded that the applicant's inability to undertake remunerative work is not caused by war-caused incapacity alone; the applicant has not at any stage qualified for the grant of a pension at the intermediate rate; and the initial grant of pension would not have been made but for misrepresentation by the applicant.
For these reasons the Tribunal affirmed the decision under review.
THE QUESTIONS OF LAW
Paragraph 2 of the notice of appeal pleads the following questions of law which are said to be raised on this appeal:
2.1Whether the Tribunal failed to afford procedural fairness to the applicant.
2.2Whether the Tribunal adopted an incorrect test when considering whether the applicant's circumstances in September 1983 satisfied the criteria for the Intermediate Rate provided in Schedule 1 to the Repatriation Act 1920 (Cth) as it stood at that time.
2.3Whether it was open to the Tribunal to find that the applicant made misrepresentations prior to September 1983 which caused him to be granted the Intermediate Rate of pension.
2.4Whether it was open to the Tribunal to find that there was no evidence that between 1 December 1986 to 31 December 1989 the applicant suffered a loss of salary, wages or earnings as a result of war-caused incapacity.
2.5Whether the Tribunal had power to review the rate at which the Applicant was entitled to be paid pension at the date of its hearing.
2.6Whether the Tribunal failed to consider the provisions of s 31(7) of the Veterans' Entitlements Act 1986 (Cth), or failed to consider matters relevant to the exercise of the discretion conferred by that provision.
2.7Whether the Tribunal's reasons for its decision complied with
s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).
The Procedural Fairness Issue
The determination of the respondent's delegate made on 1 May 1992 is expressed to be made under s 31(6) of the Veterans' Entitlement Act, but in the delegate's reasons no specific provision of that subsection is referred to. However, the concluding paragraphs of the delegate's reasons the following is stated:
Having considered all the evidence in this case, I find that Mr Tosswill did not advise the Department of Veterans' Affairs of his correct employment details and I find, notwithstanding evidence given by the veteran, that for the period he has been paid at the Intermediate Rate, he has been capable of, and has worked other than on a part-time or intermittent basis. He has therefore been overpaid disability pension at the Intermediate Rate since the date of increase from 7 January 1983.
I have therefore revoked the determination of the Delegate of the Repatriation Commission dated 1 September 1983 in respect of pension at the Intermediate Rate as from the effective date which was 7 January 1983.
By letter dated 15 March 1994 the applicant's solicitors wrote to the Department of Veterans' Affairs seeking certain particulars. The relevant parts of the letter are set out below:
15 March 1994
Mr P Jones
Commonwealth Department of Veteran's Affairs
GPO Box 3994
Sydney Branch Office
Compensation & Review Branch
SYDNEY NSW 200
Dear Sir,
Re: CYRIL de WITT TOSSWILL v THE REPATRIATION COMMISSION
MATTER NO P 93/188
We refer to the listing of this matter for hearing on 6 April 1994.
Counsel briefed for the Applicant has advised that it is impossible from the documents lodged with the Tribunal for the applicant to discover which provisions of s 31(6) and (7) will be relied upon by the Commission, and to know and prepare for the allegations which he will meet before the Tribunal. This is particularly unsatisfactory in relation to the possibility of allegations of fraud by Mr Tosswill.
We are therefore instructed to request the following particulars of the case which the Repatriation Commission proposes to put to the Tribunal in support of its decision of 1 May 1992.
Which paragraph or paragraphs of s 31(6) are relied upon by the respondent?
...
If paragraph 31(6)(d) is relied upon, please identify each provision of s 24A which is relied upon, and identify the facts matters or circumstances which are alleged to cause it to be
applicable. If any document is relied upon, please provide a copy or identify it in the T documents.
If paragraph 31(6)(d) is relied upon, identify how it is alleged that each such circumstance caused the applicant to be paid at a higher rate than it should have been. If any document is relied upon, please provide a copy or identify it in the T documents.
Identify each additional fact, matter or circumstance relied upon for suggesting that the applicant's pension should be reduced in the exercise of the Commission's discretion. If any document is relied upon, please provide a copy or identify it in the T documents.
Identify which paragraph of s 31(7) is relied upon by the respondent.
...
At the direction of the Tribunal, the respondent provided a response to this letter on the day before the Tribunal hearing. No particulars were supplied in relation to items 5 to 11 which were said not to be relevant as they referred to sections other than s 31(6)(a). In answer to item 12 the respondent said -
I cannot identify any fact, matter or circumstance which might be relevant.
The following particulars supplied in response to items 1 and 13 were quoted in the Tribunal's reasons:
In making her decision of 1/5/92, I believe that the delegate of the Repatriation Commission relied on s 31(6)(a) of the Act.
...
The Delegate relied upon ss 31(7)(aa) in revoking the decision of 1/9/83 and substituting her own decision.
It was argued on the applicant's behalf before the Tribunal that s 31(6)(a) of the VEA did not apply in a case to which s 24A applied but rather the only head of power under which the pension could be reduced was s 31(6)(d). The Tribunal accepted the applicant's argument and at paragraph 15 of its reasons said:
The Tribunal rules therefore that the only basis upon which the Applicant's Intermediate Rate pension could be reduced is by the application of s 24A(a) of the VEA, which in turn is referable to para 31(6)(d) of the VEA.
The respondent has not filed any notice of contention in this proceeding and the matter has proceeded on the common understanding that the Tribunal's ruling is correct.
It is clear from the exchange of correspondence between the parties and from the reference to the respondent's reply to the applicant's request for particulars in the Tribunal's reasons, that the Tribunal proceeding was contested on the basis that it was not part of the respondent's case that the decision to apply the intermediate rate of pension to the applicant would not have been made but for a false statement or misrepresentation made by the applicant (ss 24A(a),
31(6)(d)) but rather, the respondent's case was that, having regard to any matter that affects the payment of the pension, being a matter that was not before the respondent when the decision to grant the pension was made, the pension was being paid at a higher rate than it should be (s 31(6)(a)). The applicant's response in the Tribunal was to argue that
s 31(6)(d) was the only basis upon which the decision-maker could vary the pension granted in September 1983 and in the absence, as he thought, of any allegation on the respondent's part of a false statement or misrepresentation made by him, he would not be called upon to answer any allegation to that effect. The respondent's response to items 10 and 11 of the applicant's request for particulars, namely that s 31(6)(a) was not relevant was in my opinion sufficient to justify the applicant in approaching the Tribunal proceeding in the belief that if, contrary to the respondent's assertion, s 31(6)(a) was relevant, the respondent would not seek to resist the application on the ground that the applicant had relevantly made a false statement or misrepresentation.
It is not suggested that the Tribunal's wide statutory powers to review the decision in question were in any way restricted by any understanding between the parties as to the matters that were in issue between them. The Tribunal proceeding was conducted as a review on its merits of, rather than an appeal from, the decision. But the Tribunal having been alerted to the matters which the parties thought were in issue, the potential for unfairness arose once the Tribunal proceeded to deal with the application on a different basis.
The applicant would have been entitled to think that if the respondent's view of the applicability of s 31(6)(a) was correct he would have to demonstrate that there was no basis for the exercise of power by the respondent under that paragraph. This would have involved him in preparing a case to counter any suggestion that there was a matter that affected the payment of the pension that was not before the decision-maker in September 1983 and which resulted in a pension being paid at a higher rate than it should be. The original decision-maker thought that the applicant had not advised the department of his correct employment details. If that were so, clearly the absence of the applicant's correct employment details was a matter that affected the payment of the pension that was not before the decision-maker. It would be reasonable therefore to expect that when the applicant went to the Tribunal on 6 April 1994 he would have been in a position to establish that the information he had supplied to the respondent in 1983 concerning his employment was not only accurate as far as it went, but was "correct" in the sense that it did not leave anything unsaid which would tend to qualify the information actually supplied. For example, to answer "Retired 1981" to the question,
What is your occupation or have you retired?
would not be correct if in fact he had resumed his occupation or taken up some other occupation after having retired notwithstanding that to the extent to which it went the answer given was factual. Such an answer could in the circumstances suggested, if taken in isolation, be misleading insofar as it may give a false impression of the true state of affairs.
In the facts of this case there seems to be little to distinguish between a suggestion that the applicant had not provided his correct employment details and a suggestion that he had made a misleading statement. It would have made no difference at all to the preparation of the applicant's case if the respondent's particulars had indicated that s 31(6)(d) was relied upon rather than s 31(6)(a). In these circumstances I do not think that there was any failure to
afford the applicant procedural unfairness in the Tribunal dealing with the application on the basis that it did.
The Test Applied by the Tribunal.
If, as the parties to the appeal seem now to accept, the only basis for making a retrospective determination in relation to an intermediate rate pension is to be found in s 24A and
s 31(6)(d) of the VEA, the issue which, in the facts of the case, was required to be addressed was whether the decision to apply the intermediate rate of pension to the applicant would not have been made but for a false statement or misrepresentation made by a person (s 24A(a)).
To determine whether there has been a false statement or misrepresentation it is necessary first to establish what statements and representations were made at the relevant time.
The Tribunal found that:
a)In a form dated 7 April 1982, at the time the applicant applied for a service pension, he stated that he was not currently employed nor was he self employed having retired from a public accountancy practice. (There is no direct evidence that the decision-maker in 1983 was aware of this statement or that he took it into account in the decision-making process unless it be that the document was part of "Departmental records relating to investigation and medical examinations conducted in
respect of this application and previous claims by the member" to which he referred in his decision).
b)In a disability medical report dated 31 March 1983 the applicant is recorded as stating that he had been a public accountant and had retired in December 1981. The same report refers to the applicant doing consultancy work and work for country clients. (The report of 31 March 1983 was one of the documents before the decision-maker).
c)In another medical report dated 29 April 1983 the applicant is recorded as stating that he had sold his accountancy practice 16 months earlier and that he casually consulted for the new partners. (The report of 29 April 1983 was one of the documents before the decision-maker).
d)In a document headed "Statement by Veteran - Sick Leave History" which was probably received by the respondent in about March 1983 the applicant gave his occupation as "Retired 1981". (The same comments apply to this document as to the document in (a) above).
e)The applicant recommenced practice sometime in 1982 but made no precise finding as to when in 1982 this occurred.
f)The applicant's tax return for the year ended June 1983 shows he earned fees in the sum of approximately $9,500.
The finding that the applicant recommenced practice sometime in 1982 does not establish that his statement made in April 1982 that he was then not employed or self employed was either false or misleading, nor does the fact that in the year ending June 1983 the applicant earned gross fees of $9,500 have that effect. The latter finding is not inconsistent with what the applicant apparently told the two examining doctors in March and April 1983, namely that he had retired from his former practice and that he was doing a limited amount of work. The statement in the document referred to in (d) above if taken in isolation may have been misleading, but it was not considered in isolation by the decision-maker who has stated in his decision that he had regard, amongst other things, to the two medical reports which made reference to the applicant's current work activities.
At paragraph 24 of its reasons the Tribunal said:
The state of the Applicant's practice in the period 1982 to December 1986 can be gauged by perusing his Tax Return for the year ended June 1986. In that year he claimed $5,125.20 for travelling expenses incurred in gaining assessable income and a note (Note 2) in his Return states:
"Bourke and Moree are visited regularly, there being approximately 16 weeks spent at Bourke and Moree for clients where over 3,000 lodgings in motels and food expenses are incurred. Further information available if required".
This paragraph illustrates the error into which the Tribunal fell. Apart from the invalidity of the conclusion that the extent of the applicant's practice in say 1982 and 1983 can be gauged by the amount of travelling expenses he incurred in the year ended 1986, it demonstrates that the Tribunal did not focus on the real issue namely whether the decision-maker in 1983 would not have made the decision he did but for a false statement or misrepresentation.
In my opinion the Tribunal's findings of primary fact are not capable of sustaining an affirmative answer to the question of whether the decision to grant the pension at the intermediate rate was made as a result of a false statement or misrepresentation. It has for the most part directed its attention to events which occurred after September 1983 and seems to have lost sight of the fact that it was required to address the situation which existed in 1983. Whatever the state of affairs may have been at a later date, it was not open to the Tribunal on the facts found by it to conclude that the decision in 1983 to apply the intermediate rate pension to the applicant would not have been made but for a false statement or misrepresentation. There was simply no evidence to justify such a conclusion.
CONCLUSION
In my opinion the Tribunal erred in law in its disposition of the application to review. The relevant questions of law are those raised in paragraphs 2.2 and 2.3 of the notice of appeal.
The evidence before the Tribunal could only sustain one conclusion namely that there was no basis to justify the exercise of power to cancel the determination of 1 September 1983.
On an appeal from the Tribunal the Court may make such order as it thinks appropriate by reason of its decision [Administrative Appeals Tribunal Act s 44(4)]. In the circumstances of this case it is in my opinion appropriate that the decision of the Tribunal be set aside and that in lieu thereof there be substituted a decision that the decisions of the VRB of 5 February 1993 and of the respondent's delegate of 1 May 1992 be set aside.
The appeal will be allowed. The respondent should pay the applicant's costs.
I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate: (Sgd) C. Trescowthick
Dated: 24 April 1995
Heard: 27 February 1995
Place: Melbourne (Heard in Sydney)
Judgment: 24 April 1995
Appearances:
Mr M.B. Smith (instructed by Vardanega Roberts) appeared for the applicant.
Miss R.M. Henderson (instructed by Australian Government Solicitor) appeared for the respondent.
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