Wood and ASP Ship Management Pty Ltd
[2006] AATA 577
•30 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 577
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/25
GENERAL ADMINISTRATIVE DIVISION ) Re STEVEN WOOD Applicant
And
ASP SHIP MANAGEMENT PTY LTD
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date30 June 2006
PlaceSydney
Decision The decision under review is set aside and I remit the matter for reconsideration in accordance with the following directions:
(a) Section 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”) has no application to the calculation of the amount of Mr Wood’s payments for incapacity;
(b) In calculating the effect of superannuation on the amount of Mr Wood’s payments for incapacity, the provisions of section 35 of the Act should be applied; and
(c) For the purpose of the calculation under section 35 of the Act:
(i) “unadjusted amount of compensation” means the amount of Mr Wood’s incapacity payments calculated under section 31 of the Act using the figure of $114.239 per day to calculate the “normal weekly earnings” referred to in that section;
(ii) “superannuation amount” means $194,430.24;
(iii) “amount not rolled over” means the amounts withdrawn by Mr Wood from his superannuation fund since his exit date of 2 July 1997;
(iv) “lump sum benefit” means $283,171.84; and
(v) “superannuation contributions” means the amounts identified in Attachment “D” to the statement of Ms Sharon Parr dated 10 March 2005 (exhibit R1)
..................[sgd]................
Ms N Bell
Senior Member
COMPENSATION – Superannuation – Proper Calculation and Adjustment of Weekly Earnings – Determination of the Class to Which Applicant Belonged – Determination of Whether Identifiable Class Continued to Exist - Class Determined by Rate of Award Paid – No Evidence on Continuation of Class – Weekly Payments Cannot be Adjusted – Decision Under Review Set Aside and Remitted.
Seafarers Rehabilitation and Compensation Act 1992 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Re O’Shea and Comcare (1998) 27 AAR 394
Lawson v Stateships [2003] AATA 389
Re Thompson v Comcare (2002) 69 ALD 762
Comcare v Thompson (2000) 175 ALR 163
REASONS FOR DECISION
30 June 2006 Ms N Bell, Senior Member 1.Mr Wood was a seafarer. An onset of viral cardiomyopathy ended his career in January 1997. At all relevant times Mr Wood was employed by ASP Ship Management Pty Ltd (“ASP”) as a Catering Attendant. Mr Wood received incapacity payments from ASP and disputes the amount of those payments. He contends they have been incorrectly calculated by ASP in that percentage increases in the earnings of Catering Attendants since 1997 have not been taken into account and the deductions to be made from his incapacity payments arising out of Mr Wood’s use of his superannuation funds have been overestimated.
issues
2.Mr Wood’s application raises two central issues:
(a)First, whether Mr Wood is entitled to the percentage adjustment of his normal weekly earnings provided for in section 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”) by virtue of belonging to a class of employees, when the injury occurred, whose weekly earnings have been reduced or increased by the operation of a law, award or enterprise agreement under a law; and
(b)Second, whether Mr Wood’s superannuation has been properly taken into account in the calculation of his weekly rate of payment.
3.In relation to the second issue it is common ground that Mr Wood received a lump sum benefit under a superannuation scheme and has rolled over part of that lump sum. In these circumstances, section 35 of the Act provides for the adjustment of the amount of compensation payable, taking into account the lump sum benefit, its partial rollover and the employee’s contributions. The parties have agreed on the superannuation amounts relevant to this calculation. The point is uncontroversial for this reason. I will deal with this aspect of the application at the conclusion of these reasons.
4.The controversial issue in Mr Wood’s application concerns the operation of section 13(6) of the Act which provides:
13 (6) If the amount per week payable to employees in a class to which the employee belonged when the injury happened is later increased or reduced 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, determination or certified agreement, or the doing of any other act or thing under such a law;
the normal weekly earnings of the employee before the injury, as worked out under the preceding subsections, must be increased or reduced by the same percentage as that by which that amount per week was so increased or reduced, as the case may be.
5.The issue of whether Mr Wood is entitled to receive the percentage adjustment provided for by section 13(6) of the Act begs the question: what class of employees did he belong to at the time of his injury? The question also arises as to whether any identified class continues to exist.
Identifying a “class of employees”
6.There is limited case law on this question. In Re O’Shea and Comcare (1998) 27 AAR 394, the Tribunal considered the term “class of employees” to be more generic than terms such as “designation”, “position” or “classification”, which, it noted, are subject to change in the workplace without there being any change in the nature of the work done. It considered the use of the generic term signalled an intention different to the other more specific and narrow terms. In O’Shea, even though a new designation of catering attendant replaced the old designation of steward with additional duties, more demanding work but similar hours and an increase in pay, the Tribunal found that the class of which the applicant had been a member (stewards) continued to exist under the new classification of catering attendant.
7.In Lawson v Stateships [2003] AATA 389, Deputy President Hotop noted the beneficial nature of the legislation and considered that “class of employees” should not be so narrowly defined as to:
“frustrate the evident purpose of section 13(6), namely to ensure that the amount of incapacity payments received by an injured employee under the Act is kept in line with the amount of salary or wages payable, from time to time, to employees of the same class as that to which the injured employee belonged at the time of the injury”.(para35)
8.The features of employment considered by the Deputy President to be relevant to the identification of a class of employees were: the nature of employment, working conditions and remuneration and other entitlements – but not the identity of the employer who may change from time to time. In Lawson, the class was nevertheless identified with considerable particularity as:
“cook/seaman within the wider class of the crew of the number and composition manning small ships, within the meaning of Schedule A to MIMSA, which operated in the coastal shipping trade of the north west coast of Australia”.(para36)
9. In ReThompson v Comcare (2002) 69 ALD 762, Deputy President Forgie, considering the equivalent provision in the Safety, Rehabilitation and Compensation Act 1988, said:
“In summary, the authorities point to the need to identify a class by reference to features or qualities that are common to those in a group and which give them their common interest in a subject matter. Not all features or qualities are relevant in identifying a class. They must be features or qualities that ensure that attainment of the purpose of the legislation in which the word is used.”(para24)
10. The Deputy President then noted that the context in which the word “class” is used is the calculation of normal weekly earnings for the payment of compensation for incapacity, that is, the context of rate of payment. On this basis, the Deputy President considered that remuneration is the relevant common interest between a class of employees. She also noted that the particular features that identify such persons, including type of work, qualifications held and category or level of position, may change over the years, and may lead to practical difficulties, but the task is not an impossible one.
11. From these decisions, and in particular Thompson, remuneration is a primary common interest identifying a class. Indeed, as Mr Lenczner for ASP submitted, section 13(6) requires the identification of not only a class, but “the amount per week payable to employees in a class to which the employee belonged”. The class is inextricably tied to and identified by the amount of its remuneration and must be linked in this way in order for the percentage variation under the provision to be calculated. I note, however, the willingness of the Tribunal, in Lawson and O’Shea, to accommodate changes in designation and identity of employer in the determination of a class. Similar changes arose in the circumstances surrounding this application.
12. The extent to which such changes may be accommodated in the application of the equivalent section in the Safety, Rehabilitation and Compensation Act 1988(Cth) were discussed, as obiter, by Finn J in Comcare v Thompson (2000) 175 ALR 163. His Honour expressed doubt that, following the metamorphosis wrought by the introduction of workplace agreements between individual employees and employers, post workplace agreement employees could be said to be in the same class of employees as a pre workplace agreement employee.
13. In identifying a class for the purposes of section 13(6) then, the common feature of remuneration is the primary determinant of the class, with some regard to be had to later changes, if any, in designation and identity of employer. However, some changes may be so significant as to exclude the possibility of a continuing class of employee.
class of employees
Evidence
14. At the time of his injury in 1997 Mr Wood was working on the Australian Endeavour as an Assistant Caterer. The Australian Endeavour was a container ship trading mainly with South East Asian ports. Ms Dianne McGee, former Employee Relations Officer with ASP, said that Mr Wood was paid under the Maritime Industry Modern Ships Award, varied to 20 August 1996 (the MIMSA) and that the MIMSA applies only to the blue water industry. It was also her evidence that Mr Wood was employed under a 1997 enterprise agreement made in February 1998. I accept this evidence. There was dispute as to whether that Agreement had retrospective effect so as to govern Mr Wood’s employment in January 1997. Given the words of section 13(6) which require the identification of the class “at the time of the injury”, I do not consider the enterprise agreement, which was not made until some twelve months after the time of Mr Wood’s injury, was a feature of his employment at the time of his injury.
15. The evidence of Mr Anthony Rowe, Fleet Personnel Coordinator with ASP, was that the Australian Endeavour is classed as a dry cargo vessel of over 39,000 tonnes and manned by more than 18 crew. The MIMSA sets pay rates by category of vessel and number of crew (see clause 5.8). I accept that Mr Wood was paid pursuant to MIMSA and specifically as a catering attendant on a Category 3 Dry Cargo vessel with a crew of more than 18.
16. The evidence of Robert Coombs, the Sydney Branch Secretary of the Maritime Union of Australia, was that up until the late 1980’s and early 1990’s most Australian vessels had catering departments which consisted of marine cooks, stewards and crew attendants. The position of crew attendant was then phased out and a new position of catering assistant was created which combined the functions of crew attendants and stewards. In about 1997 or 1998 a further rationalisation occurred in Australian cargo vessels whereby the position of catering assistant was abolished. It followed that ASP, as operators of mainly cargo vessels, no longer employed catering assistants. Vessels other than those in the cargo fleet, including liquid gas vessels, tankers, seismic survey vessels, drill ships and offshore support vessels maintained their existing manning.
17. Mr Coombs’ evidence was that catering assistants affected by the rationalisation (approximately 2 to 3 dozen in number) either took voluntary redundancies or found employment as Chief Caterers with ASP or employment as catering assistants on other vessels. He said about one third accepted redundancies, the remaining two thirds found work elsewhere in the seafaring industry and some of those people found work in the offshore industry. He later qualified this by saying that redundancies were offered to Caterers and Chief Caterers as well and the positions of Chief Caterers who took redundancy packages were backfilled with Caterers who wished to stay. He said he would have expected ASP to have kept between one half and two thirds of Chief Stewards and Catering Assistants after the rationalisation. He said he expected that a number of them would still be working for ASP now.
18. Mr Coombs also said that, over the years, the blue water industry has reduced and the oil and gas industry has expanded. He said the blue water and offshore industries were quite distinct industries but that seafarers could move between industries in their work.
19. Mr Coombs described Mr Wood’s duties on the Australian Endeavour as similar to those of Chief Stewards but without the administrative duties of ordering stores, keeping records and making price calculations. He said the new classification of Chief Caterer combined both roles with the nature of the duties being essentially the same as prior to the rationalisation.
20. According to Mr Coombs the different rates of pay for Chief Caterers and Catering Assistants on different vessels and for different companies are largely due to historical factors including the relative bargaining power of the union and the company. He also noted differences arising out of the cyclical nature of the offshore and gas industry. Other differences between work in the blue water industry and work in the offshore industry included more crowded accommodation, twelve hour shifts and larger crews.
21. Mr Rowe (Fleet personnel Co-ordinator for ASP) said that, as at January 1997, ASP employed 35 Catering Assistants and none of those individuals are now employed by ASP. He had checked this against ASP’s computer payroll system and produced, as an annexure to his statement, a table setting out the 35 individuals and their dates of termination from the ASP payroll. The latest of those termination dates was March 2000, with the bulk of the dates being in 1997 and 1998. Mr Rowe said he does not believe many of the people named in the schedule have obtained employment in the offshore industry and he doubts that any of them retrained to work in blue water shipping. He based this belief on his familiarity with the Australian Shipowners Association electronic database of people looking for work, which covers offshore and blue water shipping – a database he consults every day. He said that if any of the names had shown up on the database they would have stuck in his mind.
22. He conceded it is possible a seafarer might have entered the blue water industry on a permanent basis and so would not show up on the database, but he said it is unlikely. He also conceded that he did not look at the database for the specific purpose of locating the individuals in the schedule – he simply drew on his recollection after consulting the database on a daily basis for other purposes – and did not look at the database as it pertained to other employers. However, he noted that ASP performs a management function for a number of other shipping companies as well, including Trident, CSR, Teekay Australia and Stolt Australia. However, he said ASP does not manage the ships of offshore industry companies such as Mermaid Marine Vessel Operations, Pacific Manning Co. Pty. Ltd, Adsteam Offshore and a range of others.
Submissions
23. Mr Halligan, for Mr Wood, submitted that the class to which Mr Wood belonged, and the class which continues, is simply that of “Catering Assistant”. He suggested that the calculation of any percentage variation should be done on the basis of figures attaching to Catering Assistants under a range of enterprise agreements concerning offshore vessels. He proposed that I choose one as an indicator of percentage increase or that I direct that an “average” be taken. In seeking to define the class so broadly he relied on the decision in Lawson, noting that, while that decision dealt with Seafarers legislation, the decision in ReThompson was concerned with the Act. He restricted his submissions to the position of Catering Assistant, rather than Chief Caterer, because, he said, he did not seek to “compare apples with oranges”. He agreed that the daily rate payable to Mr Wood at the time of his injury was $114.239.
24. Mr Lenczner, for ASP, noted that section 13(6) requires not only the identification of a class but the identification of the amount per week payable to employees in a class to which the employee belonged. This accords with the view of Deputy President Forgie in Re Thompson as to the significance of remuneration as a common concern to employees in the identification of the relevant class. He raised the difficulties associated with the operation of this provision in the context of enterprise bargaining based on agreements between employees and individual employers and referred to the concerns noted by Finn J in Thompson v Comcare.
25. Mr Lenczner submitted that the class to which Mr Wood belonged was that of Catering Assistant on a Category 3 vessel with a particular crew complement owned by ASP. In this respect he referred to the MIMSA and to the relevant enterprise agreement. Alternatively, he described the class, without reference to the specific employer, as a Category 3 vessel with a particular crew complement in the blue water industry. He noted that Ms McGee’s evidence was that the MIMSA applies only to the blue water industry. His primary submission was that because ASP no longer employs any Catering Assistants, the class to which Mr Wood belonged no longer exists. He also submitted that, even if the class identified is not made specific to employment by ASP, it is unlikely that the class continues to exist. Mr Lenczner noted various differences between the blue water industry and the offshore oil and gas industry and the importance of those differences to levels of remuneration.
Consideration
26. Had Mr Wood not been injured and had he therefore remained working as a Catering Assistant on the Australian Endeavour, he would have been affected by a number of changes: the rationalisation of the position of Catering Assistant on cargo vessels and the consequent discarding of those positions by ASP, and the change from payment under an award to payment under an enterprise agreement.
The Class of Employee to Which Mr Wood Belonged
27. The questions of the identification of a class and the continuity of that class, through a range of metamorphoses, are tied. In Lawson and O’Shea, the first question was answered in a way that accommodated those changes and still allowed for the calculation envisaged by s13(6) to be made.
28. In O’Shea the Tribunal found that the identified class continued to exist notwithstanding a change in the wage fixing mechanism from Award to Agreement and a reclassification from steward to catering attendant – similar changes to those that took place in relation to Mr Wood’s position. However, I note that the class, in its original form (stewards working on Cape Class vessels under the Cape Class Vessels Award) “translated”, after a number of redundancies, directly into catering attendants under the Maritime Industry (Australian Maritime Safety Authority) Enterprise Agreement 1993 – the employer remained the same. The class, even after these changes, remained clearly identifiable with a specific wage determining framework allowing calculation of percentage increases. Section 13(6) could do its work.
29. In Lawson, the applicant was at the time of injury working as a cook/seaman on the MV Roberta Jull, operated by Stateships, and being paid wages in accordance with the MIMSA. The Roberta Jull was withdrawn from operation and the coastal trade was discontinued by Stateships. A different shipping company later won the tender for the coastal route and operated the MV Sina, which had previously been operated by Stateships. The MV Sina was later replaced by the MV Kimberley and all crew from the Sina were offered positions on the Kimberley. The MIMSA was replaced by an enterprise agreement between North West Shipping, the operators of the MV Kimberley, and the Maritime Union of Australia.
30. The Tribunal found continuity of number, composition and work duties performed by crew manning small ships operating the coastal shipping trade off the north-west coast of Australia as between those cooks/seamen working on the MV Roberta Jull under Schedule A of the MIMSA and those working on the MV Kimberley under the 2000 certified agreement.
31. In both O’Shea and Lawson the provision could operate because the class was found to continue, albeit through one or more metamorphoses and through a specific, identifiable and historically linked wage structure (in Lawson, the 2000 certified agreement and in O’Shea, the 1993 enterprise agreement).
32. In Re Thompson a class was identified as carpenters employed with the Commonwealth and subject to the Public Service Arbitrator’s Determination at that time. The question of whether the class continued to exist remained extant and, ultimately, not determined because the parties reached an agreement. Deputy President Forgie said:
“Section 8(9) does not permit a change of class. What it requires is the class to be identified, as I have done, and then to determine whether there has been a percentage variation in the minimum amount payable in respect of employees included in that class. So long as there are employees who still come within the class, it does not matter that Mr Thompson’s particular position in the Public Service no longer exists or that there are no longer standard salary scales for members of the Public Service…
If carpenters now employed in the Joint House Department, the Department of defence, or any other Commonwealth agency or their predecessors, were covered by the Public Service Arbitrator’s Determinations, then they continue to be members of the class of employees to which Mr Thompson belonged at the date of his injuries. Regard must be had to the percentage changes in their salaries pursuant to s.8(9). If there are no longer any members of the class of employees, then s. 8(9) effectively has no operation for there can be no percentage change.”
33. In Mr Wood’s case, the changes wrought by the rationalisation of Assistant Caterers on cargo vessels, the consequent abandonment by ASP of those positions, the dispersal, throughout the offshore industry and elsewhere, of an indeterminate number of assistant caterers formerly employed by ASP amounts to a wider ranging metamorphosis than was the case in either Lawson or O’Shea. The kind of continuity established in Lawson and O’Shea is not apparent here. The best evidence of a path of continuity is that of Mr Coombs who said that of the two thirds of Catering Assistants working on the cargo fleet at the time of the restructure, some went to the offshore industry as Catering Assistants. I do not consider that is sufficient evidence to ground a class that accommodates the changes that took place shortly after Mr Wood’s injury.
34. There is no evidence of Catering Assistants on cargo vessels having been offered positions on those vessels after the rationalisation other than as Chief Caterers (Mr Coombs’ evidence). In any event, Mr Halligan, for Mr Wood, did not seek inclusion of Mr Wood in that group. I have no evidence before me of the continuity or otherwise of that classification (Chief Caterers) on cargo vessels or in relation to vessels in the blue water industry generally. Rather, Mr Halligan concentrated, in the evidence tendered and in his submissions, on positions in the offshore industry, relying only on the link provided by Mr Coombs’ evidence. I consider that this strains the notion of a “class”.
35. It was also suggested by Mr Halligan that I identify the class as simply “Catering Assistants”. To do so would be to ignore the central feature of remuneration (Thompson) and, while it would identify a class whose continuation is beyond doubt, it would render impossible the task of identifying a percentage increase.
36. I consider that a better approach is to identify the class to which Mr Wood belonged by reference to the award under which he was paid, that is, the MIMSA, that award’s categorisation of size of vessel and manning, and to accommodate the changes wrought by the rationalisation concerning cargo vessels by extending the class to all vessels of at least that size and manning in the blue water industry. The MIMSA, of course, applies only to the blue water industry. I note the evidence of Mr Coombs that the MIMSA, after the introduction of enterprise agreements provides only a safety net of basic conditions and wage rates. However it is an identifiable common determinant of remuneration of the kind adopted by Deputy President Forgie in ReThompson. The differences in remuneration that might arise as a result of enterprise agreements with individual employers will complicate a calculation of percentage increase under section 13(6) but I have no evidence before me that such a calculation would be impossible.
37. On this basis I conclude that the class to which Mr Wood belonged when the injury happened was the class of Catering Assistants working on vessels of over 39,000 tonnes with a crew of more than 18 covered by the MIMSA.
Does This Class Continue to Exist?
38. In a directions hearing on 1 December 2005 I raised with the parties the possibility of a class of the kind described above and noted that, if I were to conclude that was the class to which Mr Wood belonged I would also have to be satisfied that the class continues to exist. I requested from the representative for Mr Wood, among other things, information as to whether there are currently catering Assistants in the blue water industry on vessels over 39,000 tonnes and information as to the rates of pay for such people if they exist (transcript p.8). This was neither addressed nor provided by the representatives for Mr Wood in their submission of 22 December 2005. I have no evidence of the continuity of the class I have identified. In these circumstances I cannot conclude that the calculation provided for by section 13(6) can be performed, either by this Tribunal or, on remittal, by the Respondent. As Deputy President Forgie said in Thompson, if there are no longer any members of the class then the provision can have no operation because there can be no percentage increase. As I have no evidence that the class continues I cannot conclude that the section can operate. Therefore, the amount of weekly payments to Mr Wood should not be adjusted under section 13(6).
Superannuation
39. Section 35 of the Act provides for the calculation of incapacity payments where an employee has rolled over part of a lump sum superannuation benefit. There is no dispute Mr Wood has rolled over part of such a lump sum. Section 35 provides:
Compensation for injuries resulting in incapacity where employee rolled-over part of a lump sum benefit
(1) This section applies to an employee who:
(a) has been incapacitated for work as a result of an injury; and
(b) retired (whether voluntarily or otherwise) from his or her employment at any time after the commencement of this section; and
(c) as a result of the retirement, receives a lump sum benefit under a superannuation scheme; and
(d) rolled-over part of the lump sum benefit into a superannuation fund or an approved deposit fund.
(2) Compensation is payable to the employee for the injury under this section for each week after the date of the retirement during which the employee is incapacitated.
(3) The amount of compensation is an amount worked out using the formula:
where:
Unadjusted amount of compensation means the amount of compensation that would have been payable to the employee for a week if:
(a) section 31, other than subsection 31(8), had applied to the employee; and
(b) the week were a week referred to in subsection 31(4).
Amount not rolled-over means the amount not rolled-over or withdrawn from the superannuation fund or approved deposit fund to which the lump sum benefit was rolled-over.
Lump sum benefit means the amount of the lump sum benefit received by the employee.
Superannuation amount means the superannuation amount received by the employee as a lump sum.
(4) In this section:
approved deposit fund has the same meaning as in section 34.
rolled-over has the same meaning as in section 34.
superannuation fund has the same meaning as in section 34.
40. The parties agree that Mr Wood’s daily rate at the time of his injury was $114.239. Given my conclusion as to the operation of section 13(6), his “unadjusted amount of compensation” will simply be the amount of incapacity payments that would be calculated under section 31 of the Act using the figure of $114.239 per day to calculate “normal weekly earnings” in that section.
41. The “superannuation amount” is agreed by the parties to be $194,430.24, the “amount not rolled over” is agreed as the amounts withdrawn by Mr Wood from his superannuation fund since his exit date of 2 July 1997, the “lump sum benefit” was agreed as $283,171.84 and the “superannuation contributions” of Mr Wood are agreed to be the amounts identified in Attachment “D” to the statement of Ms Sharon Parr dated 10 March 2005.
42. The amount of incapacity payments to be paid to Mr Wood since the commencement of his incapacity and continuing should be calculated on this basis.
decision
43. The decision under review is set aside and I remit the matter for reconsideration in accordance with the following directions:
(a)Section 13(6) of the Seafarers Rehabilitation and Compensation Act 1992 (the Act) has no application to the calculation of the amount of Mr Wood’s payments for incapacity;
(b)In calculating the effect of superannuation on the amount of Mr Wood’s payments for incapacity, the provisions of section 35 of the Act should be applied; and
(c)For the purpose of the calculation under section 35 of the Act:
(i)“unadjusted amount of compensation” means the amount of Mr Wood’s incapacity payments calculated under section 31 of the Act using the figure of $114.239 per day to calculate the “normal weekly earnings” referred to in that section;
(ii)“superannuation amount” means $194,430.24;
(iii)“amount not rolled over” means the amounts withdrawn by Mr Wood from his superannuation fund since his exit date of 2 July 1997;
(iv)“lump sum benefit” means $283,171.84; and
(v)“superannuation contributions” means the amounts identified in Attachment “D” to the statement of Ms Sharon Parr dated 10 March 2005 (Exhibit R1).
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
Signed: ............[Linda Blue].................................
AssociateDates of Hearing 2 August 2004, 19 May 2005, 15 August 2005,
16 August 2005, 1 December 2005
Date of Decision 30 June 2006
Counsel for the Applicant Mr H.J. Halligan
Solicitor for the Applicant W G McNally & Co
Counsel for the Respondent Mr J. Lenczner
Solicitor for the Respondent Middletons Lawyers
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