Somerset v Repatriation Commission [2005] FCA 1399 (30 September 2005)

VETERANS AFFAIRS – War-caused injury or disease – appeal from decision of Administrative Appeals Tribunal – whether veteran suffering from a condition of Meniere’s disease – whether veteran became incapacitated from a war-caused disease – application of a Statement of Principles relating to Meniere’s disease developed by the Repatriation Medical Authority – whether error of law on the part of the Tribunal in the application of the tests to determine incapacity from a war-caused disease – whether conclusion that the Tribunal supported by any evidence.

Administrative Appeals Tribunal Act 1975, s.44(1)
Veterans’ Entitlements Act 1986, s.5C, s.5D(1), s.5D(2), s.7, s.9(1), s.13(1), s.120(1), s.120(3), s.120(4), s.120(6), s.120B generally, s.196B generally and, in particular, s.196B(3) and s.196B(14)

Repatriation Commission v. Deledio (1998) 83 FCR 82 at 95-96
Deledio v Repatriation Commission (1997) 25 AAR 396 at 411-412
Repatriation Commission v Wedekind [2000] FCA 649
Brew v Repatriation Commission (1999) FCA 1246)
Waterford v Commonwealth (1987) 71 ALR 673 at 689

Guidelines for the conduct of trials and pre-trial steps.

EDWARD P SOMERSET v REPATRIATION COMMISSION

QUD235 OF 2004

GREENWOOD J
30 SEPTEMBER 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD235 OF 2004

BETWEEN:	EDWARD P SOMERSET APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	GREENWOOD J
DATE OF ORDER:	30 SEPTEMBER 2005
WHERE MADE:	BRISBANE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD235 OF 2004

BETWEEN:	EDWARD P SOMERSET APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	GREENWOOD J
DATE:	30 SEPTEMBER 2005
PLACE:	BRISBANE

1 The applicant, Edward Plantagenet Somerset, appeals pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 from a decision of the Administrative Appeals Tribunal (Veterans’ Appeals Division) ("the AAT") delivered on 15 October 2004 affirming a decision of the Repatriation Commission dated 20 August 1999 (subsequently affirmed by the Veterans’ Review Board on 15 February 2001) refusing the applicant’s claim for a disability pension made on the ground that Mr Somerset, a veteran, had become incapacitated by reason of a war-caused disease.

2 The applicant contends that he suffers from a series of complaints including roaring, ringing and what he describes as "unbelievable pain" in the ears, dizziness, lack of balance, nausea and other physical disabilities described at paragraphs [11] and [16] of the Reasons for Decision of the AAT and further discussed in the AAT’s evaluation of the medical evidence in relation to the claim.

3 In the applicant’s statement of 14 November 1999, Mr Somerset claimed he was suffering (and today continues to suffer) from effects of a disease described as Meniere’s disease which is "a disease of the internal ear characterised by deafness, vertigo and tinnitus frequently accompanied by nausea, vomiting and nystagmus" (Blakiston; Gould’s Medical Dictionary, 3^rd Edition, p.930).

4 The applicant’s essential contention is that the cause of the disease is an incident that occurred in the course of training at Shepparton during World War II when Mr Somerset was a member of the Royal Australian Air Force. The applicant contends that, to use his language, he was "blown up" by half stick of gelignite in a simulation of an enemy attack.

5 At the hearing of the appeal, the applicant was represented, by leave, by his wife Mrs Joy Somerset, due to the difficulty Mr Somerset has in hearing discussion properly and therefore being in a position to articulate matters in relation to the appeal or otherwise properly put his position to the Court. Mr Somerset is not represented nor is Mrs Somerset assisted by a lawyer in the conduct of this appeal. The respondent is represented by Counsel, Miss Elenne Ford.

6 Accordingly, in formulating these reasons for the decision I have reached on the appeal, I propose to deal with the issues in a way which is primarily addressed to the applicant and his wife so as to explain the issues before the Court, the role of the Court in hearing an appeal from a decision of the AAT and the matters determining the resolution of the appeal.

7 The applicant has filed a notice of appeal which formulates a ground of appeal in this way:

8 The thrust of the remarks put to me by Mrs Somerset on behalf of the applicant were directed to seeking to demonstrate that in the course of evaluating the evidence as to whether there is a demonstrated connection between Mr Somerset’s disability and his service and whether an applicable Statement of Principles directed to Meniere’s disease formulated by the Repatriation Medical Authority is satisfied, on the balance of probabilities, the AAT failed to have regard to and deal with the evidence of the applicant.

9 In dealing with the ground of appeal formulated by the applicant and the oral submissions put to me which fundamentally took issue with the evaluation by the AAT of the evidence, I propose to consider the appeal by the applicant by asking these questions:

(a) Did the AAT test the connection between the onset of the effects of Meniere’s disease and Mr Somerset’s war service by reference to the correct legal test as required by the Veterans’ Entitlements Act 1986 (as amended) ("the V E Act")?

10 I have formulated these two questions as, in a sense, an extrapolation of the ground of appeal formulated by the applicant and his wife because, as I explained to Mrs Somerset, the question before the Federal Court of Australia, in its original jurisdiction, in an "appeal" of this kind from the AAT is whether there is a question of law to be determined in the sense that the AAT has made an error of law rather than whether legitimately different views might be taken, based on the evidence before the AAT, as to the factual matters to be decided by the AAT. There may be an error of law if the AAT has applied the wrong test, failed to apply the Statement of Principles or has come to a decision based on evidence which was incapable of supporting the conclusion reached.

11 The Tribunal delivered a decision on 15 October 2004 in its review of the decision of the Repatriation Commission on 20 August 1999. The AAT found that the applicant was born on 15 December 1924 and served in the Royal Australia Air Force in Australia from 21 December 1942 to 11 January 1944 and that this period of service during World War II constituted eligible war service for the purposes of the V E Act. The AAT accepted that the applicant was suffering from disabilities described as bilateral sensori-neural hearing loss with tinnitus, chronic sinusitis, asthma and acquired cataract in the left eye.

12 The AAT accepted that Mr Somerset suffered a noise trauma during his service in mid 1943 (aged 18) at Shepparton when a half stick of gelignite used for the purpose of simulating enemy attack, exploded near him. The AAT found that the weight of medical evidence before the Tribunal supported the view that a noise trauma such as that experienced by the applicant during training in Shepparton is not a recognised factor giving rise to a causal connection between such a trauma and the development of Meniere’s disease. The AAT found that even if the applicant did suffer from Meniere’s disease during his service it was not caused by the gelignite explosion (see paragraph [35] of the Tribunal’s Reasons). The AAT then considered whether Mr Somerset in any event, did suffer from Meniere’s disease during his period of service and found that there is no medical evidence to support Mr Somerset’s contention that he suffered from the disease during his service. The AAT concluded that the doctors who have formed the view that the applicant now suffers from Meniere’s disease all put the onset of such a disease well into the post-war period. Mrs Somerset gave evidence before the Tribunal that her experience of the first attack suffered by Mr Somerset of symptoms which might have given rise to a diagnosis of Meniere’s disease, occurred in early 1947. The AAT concluded that the applicant did not suffer from Meniere’s disease during his relevant war service and so found. The AAT concluded that the applicant was unable to satisfy element or factor 4 of the Statement of Principles being Instrument No. 78 of 2001 formulated by the Repatriation Medical Authority in relation to Meniere’s disease (see paragraphs [37] and [38] of the Tribunal’s Reasons).

13 The AAT considered a body of medical evidence put before it including medical reports and opinions and submissions from the applicant and respondent. The AAT preferred the written and oral opinions of Dr Anning rather than the opinion of Dr Harrington who had seen the applicant on a number of occasions. The AAT observed that Dr Harrington’s opinion could not be lightly discounted but on balance in weighing up the medical evidence, the AAT preferred the opinion of Dr Anning that Mr Somerset suffers from vertiginous attacks unrelated to his service, and so found (see paragraph [40] of the Tribunal’s Reasons).

14 The material before the Repatriation Commission, the Veterans’ Review Board and the AAT make it clear that the applicant made an application for a disability pension under Part II of the V E Act in respect of a war-caused disease. Section 13(1) sets out the eligibility entitlement and provides that where a veteran has become incapacitated from a war-caused disease, the Commonwealth is, subject to the V E Act, liable to pay a pension by way of compensation to the veteran in accordance with the V E Act. A veteran is a person who is, because of s.7, taken to have rendered eligible war service. Mr Somerset rendered eligible war service for the purposes of s.7 of the V E Act. Mr Somerset’s eligible war service did not involve operational war service. The claim that a veteran has become "incapacitated from a war-caused disease" (s.13(1)) needs to be understood in terms of s.5D of the V E Act in that a disease is any physical or mental ailment, disorder, defect or morbid condition (whether of a sudden onset or gradual development) or the recurrence of such an ailment, disorder, defect or morbid condition but does not include the aggravation of such an ailment, disorder, defect or morbid condition and a reference to the incapacity of a veteran from a war-caused disease is a reference to "the effects of that disease and not a reference to the disease itself" (see s.5D(2)).

15 Section 120 deals with the standard of proof in relation to various classes of claims. For example, s.120(1) provides that where a veteran makes a claim under Part II of the V E Act for a pension in respect of incapacity from disease relating to operational service rendered by the veteran, the Repatriation Commission is directed to determine that the disease was a war-caused disease unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Section 120(3) deals with a methodology for the application of s.120(1) to a claim for an incapacity pension from disease relating to operational service.

16 Section 120(4) deals with the standard of proof in circumstances of non-operational service and provides that the Commission shall, in making any determination or decision in respect of a matter arising under the Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II, "decide the matter to its reasonable satisfaction". In deciding whether the applicant is a veteran who has become incapacitated from a war-caused disease, the Repatriation Commission must decide any matter going to that question to its reasonable satisfaction.

17 In dealing with issues going to standard of proof, s.120 makes it clear that nothing in the section or in any other provision of the V E Act shall be taken to impose upon a claimant or applicant for a pension any onus of "proving any matter that is, or might be, relevant to the determination of the claim or application".

18 The applicant made a claim for a pension under Part II of the V E Act after 1 June 1994. The question of "reasonable satisfaction" in respect of such a claim is to be assessed in certain cases by reference to the matters set out in s.120B of the V E Act. Section 120B(3) provides that in deciding a matter to its reasonable satisfaction for the purposes of s.120(4), the Repatriation Commission is to be reasonably satisfied that Mr Somerset’s Meniere’s disease (if it is found that Mr Somerset suffers from Meniere’s disease) was war-caused only if the material raises "a connection between the disease and some particular service rendered by the person" (s.120B(3)(a)); and a Statement of Principles determined by the Repatriation Medical Authority under s.196B(3) or (12), "upholds the contention that the disease is, on the balance of probabilities, connected with that service".

19 Section 196B(3) of the V E Act provides that if the Repatriation Medical Authority is of the view that on the basis of sound medical-scientific evidence available, it is more probable than not that a particular disease can be related to eligible war service rendered by a veteran, the Authority must determine a Statement of Principles in respect of that kind of disease setting out, firstly, the factors that must exist and, secondly, which of those factors must be related to service rendered by a person, before it can be said, on the balance of probabilities, that a disease of that kind is connected with the circumstances of that service.

20 As to whether a factor "causing or contributing" to a disease is related to service rendered by a person, s.196B(14) statutorily determines the relationship between the factor and service rendered by the veteran, if:

21 Accordingly, once a factor causing or contributing to a disease is identified, s.196B(14) relates that factor to service by the veteran. The Statement of Principles determined by the Repatriation Medical Authority under s.196B(3) must state the factors for the disease that must exist and which of those factors must be related to service rendered before the Repatriation Commission can decide that the disease is connected with the circumstances of service by the veteran, on the balance of probabilities.

22 The role of the Statement of Principles document is to set out or prescribe what is, in effect, a medical-scientific standard for the relevant disease and to statutorily establish, by force of the V E Act itself, a statement or declaration of those factors that are proved or known as medical or scientific facts about the particular disease. The role of the Repatriation Medical Authority is to determine the content of the Statement of Principles so as to identify the minimum factors which can connect the particular kind of disease with the circumstances of the veteran’s particular service. There may be a number of factors that must exist before it can be said that the disease is, on balance, connected with the circumstances of the veteran’s service and, if so, the Authority must set out which of those factors must be related to the veteran’s circumstances of service before a conclusion can be made of a connection between the disease and the veteran’s particular service.

23 The Statement of Principles is designed to set out known or proved medical-scientific facts against which the veteran’s claim must be measured. These principles derive not only from a construction of the provisions of the V E Act but from previous consideration of the relevant provisions by the Court. See, for example, Repatriation Commission v. Deledio (1998) 83 FCR 82 at 95-96; Deledio v Repatriation Commission (1997) 25 AAR 396 at 411-412 and Repatriation Commission v Wedekind [2000] FCA 649.

24 Section 9 of the V E Act sets out the circumstances when an injury suffered or a disease contracted by a veteran shall be taken to be a war-caused injury or a war-caused disease. Section 9(1)(b) provides, like s.196B(14)(b), that a disease contracted by a veteran shall be taken to be a war-caused disease if "the disease arose out of, or was attributable to, any eligible war service rendered by the veteran". Section 9(1)(e) brings about the same result if the disease contracted by the veteran was "suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service" and in the opinion of the Repatriation Commission, the disease was "contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, after the veteran contracted the disease".

25 No specific discussion took place before the Veterans’ Review Board or the AAT as appears from the papers in relation to s.9 of the V E Act. Rather, the question was whether in deciding the matters relating to the claim for an incapacity pension pursuant to s.13, the test of reasonable satisfaction (in respect of non-operational service) required by s.120(4) was met having regard to the evidence and the statutory effect of the Statement of Principles determined by the Authority under s.196B(3). The elaboration in s.196B(14), however, essentially replicates some of the causal relationships found in s.9(1) of the V E Act.

26 In simple terms, where a veteran makes a claim for an incapacity pension for non-operational war service, the applicable Statement of Principles prescribes the connection that must be established between the disease (in this case Meniere’s disease) relied upon and the eligible war service of Mr Somerset, to the reasonable satisfaction of decision-maker. Mr Somerset’s claim for an incapacity pension in respect of the effects attributable to Meniere’s disease would necessarily fail if the Statement of Principles does not uphold, by reference to the factors, the applicant’s contention that Meniere’s disease was, on the balance of probabilities, connected with his eligible war service. (See, for example, Brew v Repatriation Commission (1999) FCA 1246).

27 The Repatriation Medical Authority considered the relationship factors and determined a Statement of Principles by Instrument No. 78 of 2001 concerning Meniere’s disease. In the Statement of Principles, the Authority determined that the only factor that can be related to:

Meniere’s disease and which can be related to relevant service is that set out in clause 4 of the Statement. Clause 4 says that the factor which must exist is "inability to obtain appropriate clinical management for Meniere’s disease", before it can be said that a person’s relevant service has caused or materially attributed to or aggravated the disease, on the balance of probabilities.

28 The AAT in reaching its decision considered the statutory provisions relating to the claim and the standard of proof to be applied. The AAT concluded that it must determine to its reasonable satisfaction the question whether Mr Somerset suffers from war-caused Meniere’s disease on the balance of probabilities. The AAT considered the provisions I have discussed and determined that where there is a Statement of Principles made under s.196B(3) of the V E Act, the AAT must first determine whether to its reasonable satisfaction the material put before it raises a connection between Mr Somerset’s disability and his period of service and that it must then go on to decide whether the applicable Statement of Principles upholds the contention that the veteran’s disability is, on the balance of probabilities, connected with his service.

29 In approaching the legal test to be applied, the construction of the provisions of the V E Act and the role of the Statement of Principles, the Tribunal did not make any error of law.

30 In considering the first question of whether there was evidence raising or demonstrating a connection between Mr Somerset’s disability and his period of war service, the AAT considered a body of medical evidence and opinions from Dr R Harrington, an Ear Nose and Throat Specialist who had seen the applicant on occasions from November 1987 and who provided a number of written medical reports (T4/18/22, Exhibits R1, R2 and R3); Dr Wark, who examined the applicant on 29 June 1976 following a claim for loss of smell and hearing, Dr F Anning, an Ear Nose and Throat Specialist who saw the applicant on 10 December 2002 and who provided two written reports dated 13 December 2002 (Exhibit R4) and 6 May 2003 (Exhibit R5) and Dr P Grant, a Senior Medical Officer - Compensation, who reviewed the documentary evidence in the case.

31 In his written report (Exhibit R4), Dr Anning recited some of the physical complaints made by Mr Somerset and expressed the opinion that there is absolutely no connection between Mr Somerset’s period of service and his vertiginous attacks. Dr Anning concluded that "certainly, his (Mr Somerset’s) hearing loss may well have been due to a blast injury. Recent studies of Meniere’s [sic] disease indicate that it is due to dysfunction of the secretion of hormone saccin in the endolymphatic sac. The cause is entirely unknown." Dr Anning concluded in summary that he considered Mr Somerset’s hearing loss would be partly attributable to noise, exposure and also to aging. He says, "I do not think that the giddiness is in fact due to Meniere’s [sic] disease and I do not think it has anything due to his service in the armed forced".

32 Dr P Grant conducted a review of the documentary evidence and said that he was unable to find any references to tinnitus, hearing loss or vertigo in the service medical records including the final Medical Board record of 6 January 1944. Dr Grant rejected the notion that either hearing loss or tinnitus during eligible service by Mr Somerset were the first manifestation of Meniere’s disease.

33 The AAT considered the reports of Dr Harrington who had seen Mr Somerset from November 1987. Dr Harrington’s view is that the most likely cause of the applicant’s symptoms of recurrent giddiness and associated aural symptoms is Meniere’s disease and that the development of this disease commenced early in 1997. Dr Harrington’s reports are considered at paragraph [24] of the Reasons of the AAT.

34 Having evaluated all of those reports, the Tribunal whilst recognising and finding that Mr Somerset suffered a noise trauma during his service in mid-1943 at Shepparton in the way described by him, concluded that the weight of the medical evidence supported the view that a noise trauma such as the Shepparton incident is not a recognised factor giving rise to a causal connection between the trauma and the onset or development of Meniere’s disease. Accordingly, on the basis of the medical evidence, the AAT was not satisfied that the gelignite explosion caused Meniere’s disease.

35 The Tribunal then considered whether Mr Somerset was suffering from Meniere’s disease during his period of service notwithstanding that no causal connection was found to exist between such a condition (if it existed) and the Shepparton event in 1943 particularly with a view to determining the evidence going to clause 4 of the Statement of Principles. Based upon an assessment of the service records and the evidence of Dr P Grant, the Tribunal concluded that there is no medical evidence supporting the onset of symptoms of the disease or the effects of the disease during the period of Mr Somerset’s service. The AAT concluded that at the earliest, there may have been evidence of symptoms which might have given rise to a diagnosis of Meniere’s disease at its earliest in 1947. On the basis of that evidence, the AAT was not satisfied that "an inability to obtain appropriate clinical management for Meniere’s disease" existed in the circumstances of Mr Somerset’s relevant service.

36 It may be that in some circumstances an inability to obtain appropriate clinical management for a disease is a function of a failure to diagnose the existence of the condition. In those circumstances, the factor (in this case clause 4) that must exist might not be demonstrated simply because the symptoms or effects of the disease were not properly identified as referable to the disease. In this case, the evidence before the Tribunal suggested that the Shepparton event did not cause the disease and that there were no symptoms manifesting a basis for believing that Mr Somerset had the disease during the period of service.

37 Having regard to all of the medical evidence, the Tribunal made the finding that it could not be reasonably satisfied that Mr Somerset was a veteran who had become incapacitated from a war-caused disease. There was material before the AAT which was capable of supporting the decision on the merits.

38 Accordingly, in considering the material, I have concluded in answer to the two questions I extrapolated from the formulation of the ground of appeal recited at paragraph [7] that there is no error of law demonstrated in the approach adopted by the AAT and nor is there any error in the sense that the Tribunal came to a decision which was unsupported by any evidence.

39 In my discussion with Mrs Somerset, the majority of the remarks addressed by her in criticising the decision of the AAT were directed to the failure, to her mind, to reach a decision on the facts favourable to Mr Somerset based upon what Mrs Somerset regarded as evidence (and clear evidence) establishing the entitlement to an incapacity pension. In other words, Mrs Somerset strongly contested the factual findings and the AAT’s evaluation of the evidence and, in particular, the medical evidence. As I pointed out to Mrs Somerset the question for this Court is whether there was an error of law. That is why I have sought to extrapolate and frame two questions to deal with what might legitimately be inherent in the ground of appeal formulated by the applicant. However, on this question of the role of the Federal Court, the observations of Brennan J in Waterford v Commonwealth (1987) 71 ALR 673 at 689 should be kept in mind:

41 The AAT accepts that Mr Somerset suffered a "noise trauma" during a period of eligible war service as a member of the Royal Australian Air Force in mid 1943 at Shepparton when a half stick of gelignite exploded near him as part of a simulated enemy attack upon servicemen. Dr F Anning, accepted by the Tribunal, concluded with certainty that Mr Somerset’s hearing loss "may well have been" due to a "blast injury". Whilst the AAT found that the physical disabilities complained of by Mr Somerset are either not symptomatic of Meniere’s disease or, if they are, Meniere’s disease is not connected with Mr Somerset’s eligible war service and therefore the veteran’s claim for a pension on the ground of incapacity from a war-caused disease has been decided against him, I assume the Repatriation Commission has considered the question of whether Mr Somerset is entitled to a pension or part pension from the Commonwealth in respect of any hearing loss from a war-caused injury, namely, the blast injury. That question is not alive in this matter.

42 One further question arose in the matter which was dealt with as a preliminary question. The hearing of the appeal was allocated a hearing date of Monday 26 September 2005 at 10.15am. That date had been allocated for some little while with directions in relation to the filing of submissions. On 14 September 2005, the applicant filed a notice of motion supported by an affidavit by which the applicant sought to adjourn the hearing of the appeal until a date after Monday 3 October 2005. On that date, at 2.00pm, the applicant will appear before the Administrative Appeals Tribunal in the hearing of a review of another decision by the Repatriation Commission in a matter Q501/2005. The applicant contends that the hearing of this appeal ought to be adjourned principally because a resolution of matter Q501/2005 before the AAT would be likely to resolve the present application. As I explained to Mrs Somerset, the present application is concerned with whether the AAT in reaching its decision did so in a way that involved an error of law having regard to the claim by Mr Somerset for an incapacity or disability pension, the basis for that claim, the disease relied upon and the question of whether there was a connection between Mr Somerset’s disability and his service and whether the Statement of Principles upheld such a contention. It seemed to me that there was no proper basis for adjourning the present appeal by reason of any matter or factor alive in relation to matter Q501/2005 before the Administrative Appeals Tribunal on Monday 3 October 2005 at 2.00pm.

43 The applicant exhibited to an affidavit sworn 12 September 2005 an Index of Documents under the reference AAT Q2005/501 which involved Repatriation Commission Reasons for Decision dated 22 April 1977 comprising five pages and certain further pages including a document entitled Summary of Recent Medical Investigation. The matters principally before the AAT in this further application relate to Mr Somerset’s cataract condition, asthma, lung complaints and other aspects of Mr Somerset’s current disabilities.

44 Mrs Somerset has referred to a number of documents and articles dealing with aspects of Mr Somerset’s medical condition which she proposes to use and rely upon in the proceedings before the AAT on Monday 3 October. No demonstrated purpose is served by adjourning the present application which deals with a quite specific question and the issues in the present appeal cannot be influenced by any decision the AAT might make in reviewing, on the merits, a further decision of the Repatriation Commission in relation to aspects of a further application by Mr Somerset. Accordingly, I refused to adjourn the hearing of the present appeal.

45 I will make the following orders. The notice of motion filed by the applicant on 14 September 2005 is dismissed. The application by way of appeal from the decision of the Administrative Appeals Tribunal made on 15 October 2004 is dismissed. There will be no order as to costs.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Counsel for the Applicant:	The applicant was self-represented and leave was given for the applicant’s wife, Mrs Joy Somerset, to appear on the applicant’s behalf.

Solicitor for the Applicant:	The applicant was self-represented.

Counsel for the Respondent:	Miss Elenne Ford

Solicitor for the Respondent:	Ms Anna Bishop Australian Government Solicitor

Date of Hearing:	26 September 2005

Date of Judgment:	30 September 2005