WILLIAM KENNEDY and MILITARY REHABILITATION AND COMPENSATION COMMISSION
[2009] AATA 761
•18 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 761
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2134
VETERANS’ APPEALS DIVISION ) Re WILLIAM KENNEDY Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
TRIBUNAL: Deputy President Robert Nicholson
DATE: 9 March 2009
PLACE: Perth
The Tribunal decides as follows:
The Tribunal affirms the decision under review dated 26 April 2007, varied by the decision of 30 April 2008 made under section 42D(2) of the Administrative Appeals Tribunal Act 1975.
DECISION
Tribunal The Hon Robert Nicholson, Deputy President Date18 December 2008
PlacePerth
Decision
.....(sgd) Mr R Nicholson..............
Deputy President
CATCHWORDS
COMPENSATION – whether calculation of normal weekly earnings should take into account variations having the effect of reducing entitlement – whether statutory provision concerning compensation for injuries resulting in incapacity where employee is in receipt of a lump sum benefit applies where it results in deductions – whether such provision precluded by absence of incapacity for work.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 s 8B, s 21CASES
Griffiths and Military Compensation and Rehabilitation Commission [2005] AATA 1021
John Holland Constructions Pty Ltd v John Campbell Hall (1987) 45 NTR 1; [1987] NTSC 3
Military Rehabilitation and Compensation Commission v Perry (2007) FCA 1586
Archer v Comcare (2000) 101 FCR 30
Comcare Australia v Pires [2005] FCA 747
Commonwealth v Human Rights and Equal Opportunity Commission & Anor (1998) 76 FCR 513
Secretary, Department of Social Security v Cooper (1990) 11 AAR 315
Saraswati v The Queen (1991) 172 CLR 1
Re Smith and Comcare (2002) AATA 249
Barry and NDC Ltd (2004) AATA 1384
Re Moon and Telstra Corporation Ltd (2006) 93 ALD 740
Lonergan v Comcare (2005) 143 FCR 307REASONS FOR DECISION
18 December 2008 Hon Robert Nicholson, Deputy President
1. The applicant’s amended statement of facts and contentions discloses the following. The applicant was born on 28 March 1965. He served in the Australian Army from 3 July 1984 to 27 July 1992. Between 6 June 1987 and the date of discharge the applicant was a serving member of the Special Air Service Regiment (‘SAS’). During his employment in this service the applicant suffered various injuries and became entitled to compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’).
2. By decision of the Tribunal in applications W2002/54, W2005/297, W2005/298 and W2006/21 the applicant became entitled to receive a determination from the respondent setting out his entitlement to compensation pursuant to the SRC Act for the period 27 January 2001 to 28 July 2005, and that for the whole of the period the applicant would be entitled to Special Action Force Allowance (‘SAFA’) and then from the period 29 July 2005 and on going, the applicant was entirely incapacitated for work and was not able to earn any other suitable employment. As a result of the combination of injuries including left ankle sprain, right ankle sprain, patella-femoral knee pain, grade one medial collateral ligament strain right knee, soft tissue muscular low back pain and post traumatic stress order he became entitled to compensation by way of incapacity payments, with those payments to include SAFA. Incapacity payments commenced to be paid after 27 July 1992. At the time they were paid the formula for their calculation was set out in s 8 of the SRC Act.
3. Notwithstanding the clear terms of the decision of the Tribunal, the applicant claims the respondent delivered a decision to the applicant on or about 15 February 2007 which purposed to determine the applicant’s entitlements to compensation for a period commencing in July 1994. The applicant claims that decision was wrong. The applicant sought a reconsideration. By reviewable decision made on the 26 April 2007 the respondent determined the applicant’s entitlement to compensation purportedly pursuant to the order made by the Tribunal but in fact determining the applicant’s entitlements for a period going back to 1994. The applicant contends that in doing so the respondent fell into error.
4. The respondent says that the calculation of the applicant’s entitlements was reduced by the amount payable to the applicant as a consequence of reliance on s 21 of the SRC Act. That section applies to an employee who, being incapacitated for work as a result of an injury, retires voluntarily or is compulsorily retired from his/her employment at any time and as a result of retirement receives a lump sum benefit under a superannuation scheme. The applicant asserts the only material before the Tribunal is that the benefit under the Military Superannuation and Benefits Scheme (‘MSBS’) scheme applicable to the applicant was paid as a result of the applicant ‘going overseas’ and not as a result of the applicant’s retirement.
5. Additionally the applicant claims the respondent further wrongly failed to adjust the applicant’s entitlements to incapacity payments in accordance with s 8 of the SRC Act which applied at the date of injury and at the date of incapacity commencing and instead varied payments only by reference to the consumer price index (“CPI”). The applicant says the respondent in doing so wrongly relied on sub-section 8(9B) of that Act which, by reason of fact that it came into existence subsequent to the applicant’s entitlement to incapacity payments crystallising, did not apply to the applicant. In the applicant’s submission the provisions relied upon by the respondent do not operate retrospectively.
6. The applicant therefore contends that he is entitled to:
1)a determination in respect of his incapacity payments simply for the period the subject of decision of the tribunal for the period January 2001 – July 2005;
2)a determination which makes no deduction from the incapacity payments pursuant to s 21 of the SRC Act;
3)a determination which, in calculating the applicant’s normal weekly earnings, takes into account the variations of the applicant’s normal weekly earnings as contemplated by the former s 8 provisions which applied to the applicant at the time of his injury and at the time of commencement of payments.
7. A further contention was made on behalf of the applicant in his counsel’s address in reply. Leave was given to the respondent to file written submissions on this further submission and for the applicant to respond to those submissions.
The further contention was that for the purpose of s 21(1) of the SRC Act, the applicant was not incapacitated for work as a result of injury at the date of his retirement from the Defence Forces.
Section 8(9B) of the SRC Act
8. Section 8(1) of the SRC Act provides that for the purposes of the SRC Act, the normal weekly earnings of an employee (other than an employee required to work overtime on a regular basis) before an injury shall be calculated in relation to the relevant period under a certain formula involving application of average number of hours worked in each week, the employee’s average hourly ordinary time rate of pay and the average amount of any allowance payable to the employee in each week.
9. At the time of the applicant’s relevant injury (and up until 30 September 2001) s 8(9) of the SRC Act provided that if the minimum amount per week payable in respect of employees included in a class of employees of which the employee was a member at the date of the injury was increased or reduced on or after that date as a result of (a) the operation of a law of the Commonwealth or of a State or Territory; or (b) the making, alteration, or operation of an award, order, determination or industrial agreement, or of the doing of any other act or thing, under such a law; the normal weekly earnings of the employee before the injury, as calculated under the preceding provisions of s 8, was to be increased or reduced by the same percentage as the percentage by which that minimum amount was so increased or reduced, as the case may be.
10. By operation of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 (‘the Amending Act’) in item 13 of Sch 2, which commenced on 1 October 2001, s 8(9) as it then stood was repealed and a new s8(9) – (9D) substituted. Sub-section (9) now provides for the normal weekly earnings of an employee before the date of an employee’s injury, as calculated under subsections (1) – (8), to be increased or reduced by the relevant percentage. That percentage is explained in sub-sec (9A). Sub-section (9B), which is to be read with sub-secs (9C) and (9D), provides:
(9B) The normal weekly earnings of an employee before injury, as calculated under subsections (1) to (8) and as increased or reduced under subsection (9) must, if the employee has ceased, or ceases, to be employed by the Commonwealth or a licensed corporation, be further increased, with effect from each indexation date in relation to that cessation, by reference to the percentage of increase (if any) of an index that is prescribed for the purposes of this subsection over the year ending on the 31 December preceding each such indexation date.
(9C) For the purpose of subsection (9B), the indexation date, in relation to a cessation of employment, is:
(a) the 1 July next following:
(i) the date on which this Act receives the Royal Assent; or
(ii) the date of that cessation of employment;
whichever last occurs; and
(b) each subsequent 1 July.
(9D) For the purpose of sub section (9B), the regulations may specify the manner of calculating the further increase referred to in that subsection by reference to the movement of the index that is prescribed for the purposes of that subsection.
Regulation 5 of the Safety, Rehabilitation and Compensation Regulations 2002 (‘SRC Regulations) prescribed the Wage Cost Index as the relevant index. As at 1 July 2007 the increase so indexed was 4.0%.
11. So far as the applicant is concerned, he prefers the former position pertaining prior to 1 October 2001 whereby he was entitled to have increases in his compensation rate calculated by wage increases for his former occupation. In contrast, under the substituted s8(9B) his entitlements are reduced from that level to the level of indexation, which is a lower level. He contends that his entitlements to increases ought to be those as applied prior to the amendment in 1 October 2001.
12. The applicant contends that this is the correct position at law because the amendment on 1 October 2001 cannot properly be interpreted as intended to have a retrospective operation in relation to a person injured prior to that date. He accepts that the rule against retrospectivity in s 8 of the Acts Interpretation Act 1901 (Cth) is no more than a presumption and must yield to any sufficient indication of a contrary intention. However, he argues that there is nothing in the Amending Act or the words of the relevant sections indicating a contrary intention so as to remove a right to payment based on increases in wage rates rather than limited indexation. He relies for support on Griffiths and Military Compensation and Rehabilitation Commission [2005] AATA 1021 and John Holland Constructions Pty Ltd v John Campbell Hall (1987) 45 NTR 1; [1987] NTSC 3.
13. In Holland the respondent worker had suffered a back injury on 14 May 1977. He applied for compensation in February 1982. Prior to a decision on redemption having been made and on 11 September 1985 cl 1B(b) of schedule 2 to the Workers Compensation Act 1987 (NT), being a schedule relevant to the decision on redemption, was amended. It was held that the amendment had prospective effect only, the worker having vested rights at the time it came into effect in having compensation in accordance with the unamended schedule 2. Kearney J so held, relying on the decision in Kraljevich’s case.
14. In Griffiths the tribunal (Senior Member Penglis) found that the Amending Act had not operated retrospectively, applying reasoning in Kraljevich and s 8 of the Acts Interpretation Act 1901 (Cth) (‘where an Act repeals in whole or in part a former similar Act, then unless the contrary intention appears the repeal shall not…(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any Act so repealed’ ). The applicant’s entitlement in that case therefore remained under the former s 8(9).
15. The respondent relies on the decision in Military Rehabilitation and Compensation Commission v Perry (2007) FCA 1586 where it was held by Bennett J in the Federal Court that s 8(9B) was applicable to employees whose injuries arose prior to the date of commencement of the Amending Act.
16. In Perry the respondent serviceman contracted a disease on service in 2000. He contended that the amendments to s 8(9) did not apply to former employees whose date of injury predated the amendments. Bennett J rejected this argument, stating that the legislative scheme does not give an accrued right to a particular amount of compensation on injury alone but a right to compensation while incapacitated and payments calculated from time to time in accordance with the SRC Act : see pars 48 and 60.
Strictly it was not necessary for her Honour to decide the question whether s 8(9B) had a retrospective operation. Her reasoning was obiter. However, it was reasoning arrived at after argument by the Australian Government Solicitor for the applicant Commission and senior counsel for the respondent applicant.
17. In my opinion the reasoning of Bennett J, even though obiter, ought not to be departed from by this Tribunal. The core of that reasoning is that the legislative scheme here in issue does not give an accrued right to a particular amount of compensation on injury alone but rather a right to compensation while incapacitated, with payments calculated from time to time in accordance with the SRC Act. I do not see anything in Griffiths or in Holland which makes this reasoning inappropriate. The scheme so understood is one applying to periods of incapacity arising after the enactment of the amendment. Nothing therefore arises from the distinction relied on by the applicant that in Perry the incapacity did not arise before the amending provision.
18. I therefore cannot agree with the submission for the applicant that his entitlements to increases in compensation ought to be those as they applied prior to the Amending Act introducing s 8(9B). His entitlements must be calculated in accordance with that amended provision.
Section 21 Superannuation effect
19. In his amended statement of facts and contentions the applicant submits that the only material before the Tribunal is that the benefit under the MSBS scheme was paid as a result of the applicant ‘going overseas’ and not as a result of the applicant’s retirement. Consequently, he submits, the jurisdictional base for the application of s 21 of the SRC Act is not supported by the evidence.
20. The respondent does not seek to extend application of s 21 of the SRC Act to the period from 27 January 2001 to 15 January 2007. This is because the respondent agreed with the applicant (as reflected in the decision of the Tribunal of 15 January 2007) that the applicant be paid compensation in accordance with s 19 of the SRC Act for that period. Therefore the respondent agrees to the decision under review being varied so as to exclude the application of s 21 of the SRC Act to the period from 27 January 2001 to 15 January 2007.
21. However, the respondent submits that it correctly determined the applicant’s incapacity payments from 1994 to 26 January 2001 having regard to s 21 of the SRC Act. Also that it is entitled to determine such payments in the period following 15 January 2007 having regard to that section.
22. The MSBS Scheme was established by the Military Superannuation and Benefits Act 1991 (Cth) and was effective from 1 October 1991. The MSBS Rules are contained in a Trust Deed under the scheme. Rule 12 of the MSBS Rules in place in 1992 provided that a person who resigned from the Australian Defence Force under the age of 55 was entitled to a lump sum of his or her member benefit (the person’s own contributions and accrued interest) and that an employer benefit (an amount calculated on the basis of years of service and final average salary) was required to be preserved (ordinarily to age 55). Under rule 51 of the MSBS Rules in place in 1992 a person was entitled to be paid his or her preserved employer benefit in certain circumstances before the person attained the age of 55. Sub-rule 51(d) provided that the preserved employer benefit was taken to be payable as a lump sum on the date on which the Board of the scheme becomes satisfied that the person intends to leave Australian permanently and it was satisfied that the intention will be carried out. It was for the purpose of receiving the approval of the Board to the payment of the employer benefit that the applicant gave the following evidence.
23. In a statutory declaration made on 27 May 1992 (I infer the year as it is not clear on the copy in evidence), the applicant declared that he was leaving Australia on 23 August 1992 on a permanent basis and had no intention of returning. He further stated that he was flying to Malaysia and from there would commence his tour of the world, ultimately finishing in Europe where he would permanently reside and find employment. Additionally he stated that he had made no arrangements for residence or employment overseas at that stage due to the transient and lengthy nature of his travels (rather than, for example, that he was incapacitated). Comsuper’s note of 22 January 2007 (signed by the officer on 31 January 2007) reads ‘benefit released due to member going overseas.’ The applicant had been discharged on 27 July 1992, the effective date for payment being 28 July 1992.
24. Further evidence of the circumstances of the applicant’s discharge appear in his statement of 27 May 2005, referred to by the Tribunal in its reasons for decision. In par 79 of that statement the applicant declared that he elected discharge from the Army . He stated that he did so ‘because I could see no viable future for me in the SASR’, having felt broken down as a result of his injuries and unable to properly complete service. In pars 84 and 85 he stated further that ‘if it were not for the fact that I had to discharge for medical reasons, I would have remained in the SASR’ and ‘there is no way I would have left the SASR voluntarily and the Army had no reason to discharge me from the SASR other than from physical unfitness.’
25. It is not in dispute that the applicant’s member benefit was paid to him as a lump sum entitlement upon his retirement from the Defence Force. That receipt would satisfy the requirements of s 21(1)(b).
26. In the case of the applicant’s employer benefit, this was not received by him until the MSBS Board was satisfied that he met the requirements of MSBS Rule 51(d). A lump sum benefit will be received ‘when a benefit that is payable to the employee has been paid to [the incapacitated employee], or has been paid at his direction or when the trustee in some other way has dealt with the benefit at the request or with the consent of the employee’: Archer v Comcare (2000) 101 FCR 30 at 33-34. The employer benefit was therefore received by the applicant upon payment of it to the applicant following the decision of the MSBS Board accepting that he had satisfied the provisions of Rule 51(d).
But was this lump sum benefit ‘as a result of the employee’s retirement’? In my opinion it is incontrovertible that the employer benefit arose and was paid ‘as a result of the employee’s retirement.’ The benefit was not received by the applicant ‘as a result’ of the applicant going overseas. It was received by him because he had retired and, so far as concerned payment, he was going overseas. His retirement created the position that he was entitled to apply for the application of Rule 51(d). When that Rule was satisfied, the payment was made to him. Unless he had retired, the Rule would not have been available to him. The receipt was therefore truly the result of the retirement.
27. The applicant submits in his amended statement of facts and contentions that the application of s 21 of the SRC Act as contended for by the respondent would reduce the entitlement of the incapacitated employee considerably in excess of the actual superannuation payment even though the payment itself was unrelated to the incapacity. He submits that given the requirement that compensation legislation be interpreted beneficially (cfComcare Australia v Pires [2005] FCA 747 at par 30; Commonwealth v Human Rights and Equal Opportunity Commission & Anor (1998) 76 FCR 513 at 520-521; Secretary, Department of Social Security v Cooper (1990) 11 AAR 315; Saraswati v The Queen (1991) 172 CLR 1 at 21) , the superannuation payment should not be used to reduce the applicant’s entitlements. That is, that s 21 of the SRC Act ought not to be interpreted so as to penalise the applicant for subsequent incapacity due to injury for which compensation has or is to be paid. This beneficial interpretation argument was not taken any further on behalf of the applicant in oral presentation. I do not consider the argument can further assist the applicant’s case.
28. At the hearing the applicant also submitted that some error was made on the part of the reviewing officer in failing to implement the decision of the Tribunal by mixing the implementation of the decision of the Tribunal with the issue of the application of s 21 of the SRC Act. I agree with the submission for the respondent that there is nothing which prevents the Tribunal making a decision which addresses a number of issues. Decisions, provided they are within jurisdiction, must address the relevant issues arising on the application before the Tribunal. A finding that the delegate should not have made a decision applying s 21 of the SRC Act to the period in relation to which the Tribunal’s decision applied because of the consensual decision applying s 19 rather than s 21, cannot preclude the Tribunal from properly considering the provisions applicable to relevant periods outside the period to which the agreement related.
29. The applicant also submitted in his amended statement that ‘having agreed not to pursue any other issue in relation to past entitlements (other than that of SAFA) and the applicant having relied on the representation, the respondent should be considered estopped from revisiting the issue of past entitlements, except to pay the SAFA for the period order by the 2007 Tribunal Decision.’ This issue was not addressed in the principal submissions on the applicant’s case. In reply counsel for the applicant submitted that the estoppel argument was not pressed as meaning that the respondent is never entitled to make a decision about whether or not s 21 of the SRC Act applies for the perod prior to January 2001. Rather, what is contended is that the true position is that the respondent is obliged to make a calculation consistent with the decision of the Tribunal so that it cannot make another decision which has the effect of reducing the entitlement of the applicant. This returns therefore to the co-location of decisions argument, on which I have expressed my opinion in the preceding paragraph.
Section 21 incapacity for work
30. In the course of reply at the hearing Counsel for the applicant advanced a new argument, one not included in the applicant’s amended statement of facts and contentions or put forward in the submissions for the applicant. It was to the effect that s 21 of the SRC Act could not apply because the applicant was not at the time of his retirement from the Defence Forces ‘incapacitated for work’ resulting from injury. Leave was given to the respondent to file written submissions on the argument and to the applicant to reply.
31. The statutory context in which this issue arises involves the scope of the opening words of s 21 of the SRC Act (‘an employee who is incapacitated for work as a result of an injury’) and the provisions of s 4(9) of that Act. Section 4 is the interpretation section of the SRC. The sub-section reads:
‘(9) a reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work for any other work immediately before the injury happened.’
Unlike s 4(1), this provision is not enacted subject to the appearance of any contrary intention.
32. The respondent contends that s 4(9) in relation to ‘an incapacity for work’ is applicable in determining the scope of the words ‘incapacitated for work’ in s 21 within the meaning of s 4(9)(b). Reliance was placed upon the decision of the Tribunal in Re Smith and Comcare (2002) AATA 249 at par 85 the word ‘level’ in that sub-paragraph was accepted as referring to the nature and quality of the work ‘in the sense of its characteristics including its degree of difficulty.’ That is, that the incapacity to engage in work at the same level was considered to include any limitation on capacity for work as compared with the capacity for work before the injury. Reliance was also placed on the Tribunal decision in Barry and NDC Ltd (2004) AATA 1384 at par 46 where the word ‘level’ was accepted as a reference to the level of knowledge, judgment, responsibility and other aspects which relate to the motivation and enjoyment attached to the level of work involved for an applicant. Similarly in Re Moon and Telstra Corporation Ltd (2006) 93 ALD 740 at par 19 where the Tribunal considered it necessary to have regard to the nature and quality of the work being done rather than the grade or salary level. Reference was also made to the decision of Heerey J in Lonergan v Comcare (2005) 143 FCR 307 where the applicant had returned to normal duties before retirement so that the application of s 4(9) did not need to receive consideration.
33. The applicant contends that the phrase ‘being incapacitated for work’ in s 21 is different to the phrase ‘incapacity for work’ in s 4(9). It is submitted that whilst a person who is in fact working may have an incapacity for work in the sense defined in s4(9) it does not follow that whilst working they are ‘incapacitated for work.’ The applicant argues that s4(9) fits with precision a section such as s 14(1) but does not so easily fit with s 21. He accepts that in Smith and Comcare s 4(9) was applied to s 19 which uses the words ‘who is incapacitated for work.’ However, he argues (correctly) that Tribunal decisions, while persuasive, are not binding.
34. I consider that the correct understanding of s 21 of the SRC Act is that the reference to ‘incapacitated for work’ referred to in it is to be understood in accordance with s 4(9). There are a number of reasons why this is so. Firstly, s 4(9) is expressed in a way which evidences an intention to be applicable to all references to incapacity for work in the Act. Secondly, the right of an employee to compensation where an injury suffered by an employee results in incapacity for work arises under s 14, in relation to which the applicant accepts the applicability of s 4(9). Section 21 is, as it were, addressing a sub-declension of the broad right referred to in s 14. Thirdly, s 19 expresses the liability of Comcare to an employee in respect of an injury where the employee is incapacitated - s 19(2) – and that is expressed to be an instance of an employee being ‘incapacitated for work: s 19(1). Fourthly, s 21 is excepted by s 19(1) for separate enactment along with ss 20, 21A and 22. Section 21 addresses the particular situation where the employee is in receipt of a lump sum benefit. There is no apparently logical reason for excepting an employee from the application of s 21 but not s 19.
35. I therefore turn to the evidence upon which the respondent relies for the contention that at the time of his retirement the applicant was incapacitated for work as that phrase is to be understood by application of s 4(9) of the SRC Act. The first body of evidence lies in the findings of the Tribunal and its reasons in W2002/54, W2005/297,298 and W2006/21. These establish that in 1991 the applicant had ceased to work as a Trooper in the SAS and commenced working as a storeman in the Quarter master’s Store as an Acting Sergeant because of his unfitness for performance of his duties as a trooper because of his injuries. In May 1992 the Medical Board determined that the applicant was ‘medically unfit/BMS.’ In his evidence to the Tribunal dated 27 May 2005 the applicant said:
79. I elected discharge from the Army. At the medical board I was made medically unfit for duty. None of my injuries were present when I joined the Army at the age of 19. …I elected discharge because I could see no viable future for me in the SASR. As a result of my injuries I felt broken down and unable to properly complete service.
84. If it were not for the fact that I had to discharge for medical reasons, I would have remained in the SASR….
Other extracts from the applicant’s outline of evidence supporting these facts were relied upon by the respondent. Reference was also made to the evidence of Mr Keenan in a report of 28 February 1992 and Dr Stampfer on 29 May 1992 in which the applicant’s medical injuries were documented. Later reports of impairment were also referred to.
36. I consider that the evidence relied upon by the respondent establishes that at the time of the applicant’s discharge he was ‘incapacitated for work’, understanding that phrase by application of s 4(9) of the SRC Act. That is, understanding it to extend beyond an incapacity to engage in work and to include an incapacity to engage in work at the same level at which he was engaged before the injury happened. The applicant was clearly not engaged at the same level from the time at which he was posted to the Quarter Master’s store and no longer carried out the duties of a trooper.
37. The issue of the existence of the incapacity was not one raised in the applicant’s amended statement of facts and contentions. However, the applicant raised the issue in submissions in reply. In any event, the issue arises as a consequence of the need to consider the proper application of s 21 of the SRC Act.
Publication of reasons
38. It has been agreed between the parties that these reasons should be published without any proposed orders. The parties will now consider the reasons and confer on other outstanding issues. The Tribunal will expect that by 30 January 2009 the parties will have advised the Tribunal how they wish to proceed to bring the application to resolution.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Hon Robert Nicholson, Deputy President.
Signed: ....(sgd) T Freeman................
AssociateDate/s of Hearing 22 September 2008
Date of Decision 18 December 2008
Counsel for the Applicant Mr G Droppert
Solicitor for the Applicant Mr C Prast
Slater and Gordon
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Ms A Camilleri
Sparke Helmore
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