Clarke and Comcare [1999] AATA 76 (11 February 1999)

Last Updated: 17 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A98/205

GENERAL ADMINISTRATIVE DIVISION )

Re IRENE CLARKE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date 11 February 1999

Place Canberra

Decision The tribunal sets aside the decision under review and remits the matter to the respondent for assessment with the following directions:

(a) that the applicant has an increase in the degree of permanent impairment to her lower limb function of 10% for the purposes of subsection 25(4) of the Safety Rehabilitation and Compensation Act 1988 ("the Act");

(b) that the applicant has a degree of whole person permanent impairment as assessed pursuant to section 24 of the Act in accordance with the Guide to the assessment of the degree of permanent impairment of 28%;

(c) that the applicant is entitled to further compensation in an amount of 9% of the maximum amount pursuant to section 24 of the Act calculated by deducting the amount of compensation she has received pursuant to section 24, from the entitlement calculated in accordance with (b) above.

The respondent is to pay the applicant's reasonable costs of the proceedings as agreed or taxed.

..............................................

Pamela Burton

Senior Member

CATCHWORDS

COMPENSATION - Final assessment of whole person permanent impairment - subsequent increase of 10% impairment in lower limb function - whether threshold test in ss25(4) is met - whether 10% threshold is determined before or after application of Table 14.1 of the authorised Guide.

Legislation

Safety Rehabilitation and Compensation Act 1988 sections 4, 24, 25

Guide to the assessment of the degree of permanent impairment, Tables 9.5, 9.6, 14.1

Authorities

Wilson v Wilson's Tile Works Pty Limited (1960) 104 CLR 328

Brennan v Comcare (1994) 50 FCR 555

Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11

REASONS FOR DECISION

1. This is an application for review of a decision dated 18 May 1998 of a delegate of the respondent affirming a determination of 26 March 1998 denying a claim for further permanent impairment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").

2. The applicant was represented by Mr Anforth and the respondent by Mr Wallace of counsel. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents"). The matter proceeded by way of submissions only from the parties' respective counsel.

3. The facts are not in dispute. They are set out at T175. The applicant is a 44 year old woman who was employed as a registered nurse with ACT Health when she sustained an injury in the course of her employment on 5 February 1995. Liability was accepted for her condition, now accepted as a prolapsed disc at the L5/S1 level and strained muscle of the lower back.

The claims history

4. On 29 November 1996 the respondent determined that the applicant had suffered a 10% whole person impairment pursuant to Table 9.6 of the Guide to the assessment of the degree of permanent impairment ("the Guide"), and that she was entitled to $22,330.88 pursuant to sections 24 and 27 of the Act (T92). The applicant requested a review. Pending a final determination, and at the applicant's request, she received an interim payment of compensation pursuant to section 25 of the Act on 10 December 1996. On 7 May 1997 the respondent varied the decision in the applicant's favour and determined that she suffered a 10% loss from an impairment to her lower back under Table 9.6, and a 10% loss from an impairment to her lower limb under Table 9.5, amounting to a whole person impairment of 19% after applying the combined value charts in Table 14.1 of the Guide.

5. On 12 December 1997 the applicant lodged a claim for further compensation in relation to an increase in her lower limb impairment. This was supported by a medical opinion of Dr Griffith, consultant surgeon dated 15 November 1997 (T138). He assessed the applicant's lower limb impairment at 20% under Table 9.5 of the Guide, an increase of 10%. This opinion is accepted by the respondent. The respondent's delegate decided however, that subsection 25(4) requires the subsequent increase in the impairment to be arrived at after the value of the increase in the impairment as measured under Table 9.5 has been combined with the previous impairment score under Table 14.1. The application of Table 14.1 effects a discount of the applicant's 10% increase in impairment to her lower limb by a further 1% when combined with her previous impairment rating under Table 9.6, giving an overall increase in her whole person degree of impairment of 9% over her previous rating.

6. The applicant sought a reconsideration of the decision, and on 18 May 1998 the respondent affirmed its earlier decision that the applicant was not entitled to a further amount of compensation.

The legislation

7. By section 4 of the Act "impairment" is defined to mean:

the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

Section 24 of the Act is as follows:

24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.

(8) Subsection (7) does not apply to any one or more of the

following:

(a) the impairment constituted by the loss, or the loss of the use, of a finger;

(b) the impairment constituted by the loss, or the loss of the use, of a toe;

(c) the impairment constituted by the loss of the sense of taste;

(d) the impairment constituted by the loss of the sense of smell.

(9) For the purposes of this section, the maximum amount is $80,000.

Section 25 reads:

25. (1) Where Comcare:

(a) makes a determination that an employee is suffering from a permanent impairment as a result of an injury; and

(b) is satisfied that the degree of the impairment is equal to or more than 10% but has not made a final determination of the degree of impairment;

Comcare shall, on the written request of the employee made at any time before the final determination is made, make an interim determination of the degree of permanent impairment under section 24 and assess an amount of compensation payable to the employee.

(2) The amount assessed by Comcare under subsection (1) shall be an amount that is the same percentage of the maximum amount specified in subsection 24(9) as the percentage determined by Comcare under subsection (1) to be the degree of permanent impairment of the employee.

(3) Where, after an amount of compensation has been paid to an employee following the making of an interim determination, Comcare makes a final determination of the degree of permanent impairment of the employee, there is payable to the employee an amount equal to the difference (if any) between the amount payable under section 24 on the making of the final determination and the amount paid to the employee under this section.

(4) Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more.

The parties' contentions

8. The applicant's claim is that subsection 25(4) treats an increase in the degree of impairment which occurs after a final assessment has been made, as a "new impairment". On her behalf it is argued that the 10% increase in the level of impairment of her lower limb function as assessed by Dr Griffith under Table 9.5 of the Guide, entitles her to compensation for the full 10% increase. No reference to Table 14.1 which discounts that score when combining it with her previous degree of impairment is required.

9. In the alternative, the applicant says that the increase of 10% in the lower limb impairment meets the threshold test required by subsection 25(4), and should only be combined with the previous impairment score under Table 14.1 for the purpose of assessing her further compensation entitlement. On this approach, the new impairment level of 20% under Table 9.5, when combined under Table 14.1 with the existing 10% under Table 9.6, gives a 28% degree of whole person permanent impairment. The applicant having previously been paid compensation for 19% of the maximum amount under section 24, would then, be entitled to a further payment of compensation for the increase of 9%.

10. The respondent contends that "the increase in the degree of impairment" is to be arrived at after the application of Table 14.1. The threshold test is met only if the new degree of whole person impairment is 10% or more than the previously assessed degree of impairment. In the applicant's case, this would produce a 9% increase only in the degree of impairment. The respondent asserts therefore that subsection 25(4) disentitles the applicant to any further compensation.

Discussion of the contentions

11. At the outset I give my reasons for rejecting Mr Anforth's primary submission that an increase in the degree of impairment becomes a "new impairment" to be assessed for the purposes of compensation without regard to the previous impairment arising out of the same compensable injury. As observed by His Honour Justice Burchett in Brennan v Comcare (1994) 50 FCR 555 at 556, compensation is paid under section 24 of the Act in respect of an injury (my emphasis), not in respect of the impairment. (See also Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11 at 14 where the "new impairment" concept is rejected and the inequities to which it might give rise are pointed out.) Mr Anforth argued that inequity results if the increase in impairment is not treated as a "new impairment". He said that an employee who was assessed as having a 5% impairment would remain disentitled to compensation on that impairment increasing by 5%; whereas that employee would have been entitled to the full 10% had the assessment taken place after the subsequent increase. However, the prohibition in subsection 25(4) only relates to payment of "further amounts of compensation". A person assessed with less than a 10% impairment and who as a consequence receives no compensation for that impairment, is eligible for compensation when the permanent impairment reaches the required percentage threshold under section 24.

12. Mr Wallace, in the course of his submissions on behalf of the respondent, suggested that subsection 25(4) applies only to those employees who have received an interim payment under section 25 and who have gone on to have a final assessment. The only support I can find for this proposition is the placement of subsection 25(4) under the heading "Interim payment of compensation". Such a restrictive application cannot be given to the subsection on the strength of the heading of the section. It would exclude from its ambit other employees who had received final assessments and compensation under section 24. There is no equivalent provision in section 24 to entitle those other employees to further payments of compensation for any increase in the degree of an impairment after a final assessment has been made. This anomaly was pointed out to Mr Wallace. In response, he argued that a subsequent increase in impairment of a person who had not received a section 25 payment, would be treated as a "new impairment" under section 24. It is difficult to reconcile this submission with Mr Wallace's rejection of Mr Anforth's submission that the applicant has a "new impairment" for the purposes of subsection 25(4). It is also contrary to the statutory regime of section 24 referred to by Justice Burchett in Brennan (supra).

13. In any event, the inclusion of subsection 25(4) in the section dealing with interim payments, providing as it does a threshold test before "further" payments of compensation can be made, is appropriate. The subsection specifically excludes the application of the threshold test to the further payments to be made on a final assessment to those employees who have received an interim payment. The immunity those employees receive from its operation is removed once a final assessment has been made in respect of their impairment. They then fall into the same category as other employees as to whom Comcare has made a final assessment. This is consistent with the scheme of the provisions.

14. Section 24 provides for the payment of compensation for an injury resulting in permanent impairment. By subsection (2), Comcare is to have regard to certain matters when determining whether an impairment is permanent. By subsection (5), Comcare is authorised to determine the degree of permanent impairment resulting from an injury under the provisions of the Guide. The subsection sets out the manner by which Comcare is authorised to assess the amount of compensation payable with reference to the degree of permanent impairment determined by it under the Guide.

15. Section 25 of the Act sets out the circumstances permitting the making of an interim payment; a further payment following an interim payment; and further payments after a final assessment has been made. The amounts payable are to be assessed pursuant to section 24.

The Issue

16. In construing subsection 25(4) of the Act, questions arise as to the meaning of the word "increase" in the phrase "increase in degree of impairment", and as to what "degree of impairment" it refers. Is the increase in the degree of impairment that which has occurred to the affected function over its previous degree of impairment, or the resultant increase in the degree of whole person impairment produced by the increase in the loss of a function? Does the "degree of impairment" referred to mean that of the affected function, or the degree of whole person impairment? In the applicant's case, these questions can be reduced to one: whether the "increase in degree of impairment of 10% or more" for the purposes of the threshold test in subsection 25(4) is to be arrived at before or after the application of Table 14.1. This requires a consideration of the merits of the construction of the subsection as put in the alternative by Mr Anforth for the applicant, and of that contended for in the primary submission by Mr Wallace. That is, whether the applicant's frank 10% increase in her impairment measured under Table 9.5 meets the threshold test required by subsection 25(4), or whether the subsection intends there to be an increase of 10% or more of the whole person impairment measured in accordance with the combined value Table 14.1 of the Guide.

17. The "frank increase in impairment" approach requires the increase to be determined under the relevant impairment Table as a preliminary step to assessing the further compensation payable for the increase in the degree of whole person permanent impairment. It envisages a two step process. If the threshold test under subsection 25(4) is met, a final assessment in accordance with section 24 is then undertaken. New impairment scores are combined for the purpose of determining the degree of whole person impairment and assessing compensation payable.

18. The construction urged by the respondent requires a one step but more complex process to determine whether the threshold has been met. It requires a determination of the whole person degree of permanent impairment (arrived at by combining the frank increase in the degree of impairment with the previously determined degree of whole person impairment), to be 10% or more than the previously determined degree of whole person impairment.

Construing subsection 24(5)

19. The difference in approach to the meaning of the phrase "the subsequent increase in the degree of impairment" in subsection 25(4) is semantic when applied to a subsequent increase in the degree of impairment of a single loss of function. The score arrived at on either approach is the same where the previously assessed degree of whole person impairment involves a single loss of function. The difficulty arises where the same injury gives rise to a multiple loss of function and there is a subsequent increase in one or more of those functions. The two approaches produce different whole person impairment scores. This is the situation in the matter before me. The application of the discounting factor for impairments with a combined value of 10% or more under Table 14.1 accounts for the difference.

20. The same difficulty does not arise in relation to the threshold test of 10% or more under subsection 24(7). Whether an employee has a 10% degree of impairment of one function under a single Table of the Guide, or an impairment of two functions with scores of only 5% each, the threshold test is met, as Table 14.1 gives the full value to the combined 5% scores. I note that subsection 24(7) expressly prohibits compensation being paid where Comcare determines that "the degree of permanent impairment of the employee" (my emphasis) is less than 10%. The words reflect those used in subsection 24(5), unlike those used in the prohibition in subsection 25(4).

21. I have read carefully the comments of Justice Burchett in the case of Brennan in relation to the construction of sections 24 and 25 of the Act. In considering the circumstances under which an "increase in the degree of impairment" might be regarded as a "new impairment" he considered the effect of the threshold tests set out in subsections 24(7) and 25(4) of the Act. He notes that subsections 24(5) and (6) are concerned with the effect of an injury that produces a permanent impairment. He states (at p.556):

And by subs. (5), what is important for compensation is "the degree of permanent impairment of the employee", not of a particular limb or organ. When, therefore, after an assessment, a later deterioration or further disability becomes apparent, the statutory regime is the same whether this new situation involves a further weakening of an affected limb or other part previously assessed, or a new disability manifesting itself in a different limb or part. In each case, it is necessary to consider whether there has been an "increase in the degree of impairment" of the employee of 10% or more (see s.25(4) and cf. S.24(7))

His Honour then takes account of the definitions of "permanent" and "impairment" in section 4 of the Act, and provides examples of the way in which a subsequent increase in impairment of a single limb, or an impairment in another limb, may arise out of a single injury. He observes:

"a permanent impairment", "an impairment", and "that Impairment" ... relate to a particular loss within the definition in s. 4.

At p.557 he notes that:

There is nothing in the terms of ss. 24 and 25 to suggest that any distinction is to be drawn, in principle and so as to advantage one category or disadvantage another, between these various categories of injured persons. In all cases, the same test of 10% impairment of the person is applied.

22. His Honour's conclusions are consistent with an increase in a degree of impairment being measured against a previous degree of impairment to that particular limb or function for the purpose of ascertaining whether the test of 10% impairment of the person has been met. His Honour did not, and was not required to, consider the application of "an increase in the degree of impairment" under subsection 25(4) to a situation of an employee whose previous assessment involved combining scores ascribed to more than one loss of function. As I noted above, the difficulty does not arise under subsection 24(7), nor under subsection 25(4) where the previous assessment involved only one functional loss.

23. Mr Wallace contends that subsection 25(4) is unambiguous and open to one construction only. If that is so, its meaning must be given effect notwithstanding an apparent or even unintended inequitable result. Mr Wallace says that the phrase "increase in the degree of impairment" can refer only to the increase in the degree of permanent impairment as determined by Comcare in accordance with section 24 under the provisions of the Guide.

24. I do not agree that the meaning of subsection 25(4) is so clear. Mr Wallace's construction converts the meaning of the phrase "subsequent increase in the degree of impairment" to "subsequent increase in the degree of whole person permanent impairment". This conversion avoids the literal meaning of "degree of impairment" as read in accordance with the section 4 definition of the word "impairment".

25. Importing the definition of "impairment" into subsection 25(4) allows the provision to be read as prohibiting the payment of further amounts of compensation to an employee in respect of a subsequent "increase in the degree of the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function". The degree of loss of function, or increase in the loss of function can be ascertained with reference to the relevant Table of the Guide. Dr Griffith did this under Table 9.5 when he made his assessment of the applicant's loss of lower limb function of 20% in November 1997 (T138). On this approach to the meaning of "degree of impairment", no reference need be made to the earlier or to a new determination of the degree of whole body impairment. On this construction, if the threshold test is met, there is a second step to be taken to determine the degree of permanent impairment and assess the amount of further compensation payable.

26. A two step process appears to be envisaged in the Guide. The Introduction to the Guide states (at p.2):

Where a final assessment has been made and the degree of impairment subsequently increases by 10% or more, an employee may request a further assessment for Permanent Impairment and non-economic loss

27. The omission of the words "permanent" and "of the employee" from the phrase "subsequent increase in the degree of impairment" cannot be ignored in the light of the context in which the phrase "degree of permanent impairment of the employee" appears in subsection 24(5). It is this subsection, by authorising the use of the Guide, which provides for the determination of the degree of whole person permanent impairment. The construction urged by Mr Wallace imposes a requirement that an "increase in the degree of impairment" is to be measured with reference to the "final assessment of the degree of permanent impairment of an employee". That requires a further final assessment of the degree of whole person permanent impairment to be made in accordance with section 24, with which the previous final assessment is to be compared for the purpose of applying the threshold test.

28. It is clear that the reference to a "final assessment of the degree of permanent impairment" in subsection 25(4) refers to the assessment of compensation payable on the determination of the degree of permanent impairment of an employee made pursuant to subsection 24(5). That determination might be made with reference to a single loss of function determined under one impairment Table of the Guide, or with reference to more than one in the case of multiple loss of function, requiring the application of Table 14.1. However, how the 10% test is to be measured in relation to the "subsequent increase in the degree of impairment" in the applicant's case is not clear. The phrase is open to two constructions when applied to her factual situation.

29. As I have noted, difficulty in construing the subsection arises when a final assessment of the degree of permanent impairment involves the application of Table 14.1 of the Guide. That Table is not an impairment Table. The impairment Tables are focussed on function of body systems. Table 14.1 is a calculation Table. Its use is specifically required for the determination of the degree of permanent impairment of the employee under subsection 24(5) for the purposes of assessing the compensation payable. Its application has no disadvantageous affect on an employee who is subject to the test contained in subsection 24(7). It can, however, produce a different result when applied under subsection 25(4).

30. I conclude, therefore, that the words of the phrase "an increase in the degree of impairment" in subsection 25(4) were chosen deliberately to ensure its construction in according with its literal meaning with reference to the definition of "impairment" under section 4. In doing so, I have regard to the words of Justice Burchett in Brennan (p.561):

It would be impossible, in construing beneficial legislation, to reject the literal effect in favour of restricting the availability of the benefits. Even if ambiguous, the Act should be construed generously, and certainly its literal meaning should not be confined without very clear warrant.

Further, where two or more constructions are open, the construction most favourable to an applicant must apply (Wilson v Wilson's Tile Works Pty Limited (1960) 104 CLR 328 at 335).

31. In the present case the applicant is disadvantaged by the construction contended for by the respondent. It disentitles the applicant to any further payment, despite a frank increase in impairment of her lower limb function of 10% and a 9% compensation entitlement, to which she would have been entitled had the full extent of her impairment been known at the outset, or had her final assessment been delayed until after the increase had occurred in her lower limb impairment. That is, but for the timing of her claim, she becomes disentitled to 9% compensation, which she would otherwise have received. A person with the same degree of impairment who is assessed at the outset as having a 10% impairment under Table 9.6 and 20% under Table 9.5 would obtain a combined degree of impairment under Table 14.1 of 28%, and be compensated accordingly, having met the 10% threshold test under subsection 24(7).

32. The inequity of the outcome of the construction contended for by the respondent is recognised by Mr Wallace. He argued that subsection 25(4) may have intended that disadvantage to apply as a deterrent to employees who "opt" for an early assessment. His argument was partly dependent upon the validity of his suggestion that the subsection only applied to the category of people who had been in receipt of an interim payment. As to that, it is interesting to note that no such penalty is envisaged by the drafters of the Guide. At pp.5-6 of the "Principles of Assessment" of the Guide, it says in relation to Interim Assessments:

To ensure that the possibility of entitlement to a permanent impairment payment does not impede the rehabilitation process provision is made for interim assessment and payment of compensation.

Assessment for an interim payment will apply mainly in cases undergoing active treatment where the final outcome of the treatment is not known but a minimum permanent impairment can be measured. Care should be taken to ensure that further treatment will not reduce the impairment which must be at least 10%. Interim payment will generally not apply where the impairment has stabilised or where the only change in impairment would be due to progressive degeneration.

33. I do not accept therefore, that the subsection intended to disadvantage employees who sought compensation for their impairment "too early" in the sense that they had an increase in their impairment after a final assessment had been made. To construe the Act as the deliberate intention of parliament to penalise those who make an early claim for compensation necessitates the intention to be expressed in the clearest possible terms. That is not achieved by the terms of sections 24 or 25. A construction which facilitates a fair and consistent application of the Act is to be preferred to a construction which penalises or disadvantages a category of persons to whom the section applies.

34. This is supported by the Explanatory Statement to the Guide approved under the Act. It reads:

The Guide offers a comprehensive system for assessing the level of a worker's impairment. It will ensure a consistent approach to the assessment of the compensation payable for both permanent impairment and non-economic loss. Independent, private medical consultants will be required to report on the degree of impairment in accordance with the Guide.

35. I have no difficulty construing the phrase "increase in the degree of impairment" in subsection 25(4) to mean the increase in the degree of impairment of a body function compared with the previous degree of loss of that function. This construction allows for the payment of the same amount of compensation for the same degree of impairment irrespective of the timing of the employee's claim. The time at which an employee is entitled to make a claim is regulated by the proviso that the impairment must be permanent. The frequency of the claims is restricted by the provision in subsection 25(4) of the requirement that there be a 10% or more increase in the impairment before any further payment is made. I see nothing in the provision to persuade me that it intended to deter an employee from making an early claim, or to penalise an employee who suffers an increase in impairment subsequent to a final assessment having been made.

Decision

36. I find that the applicant satisfies the threshold test under subsection 25(4). She has an increase in the degree of impairment to her lower limb function of 10%. There is no change in the assessed degree of impairment of her lumbar spine function. The next step to be taken is for an assessment of the further compensation payable to be made pursuant to section 24. A determination of her degree of permanent impairment made under the Guide in accordance with section 24 requires her new degree of lower limb impairment determined under Table 9.5 to be combined with her previous degree of lumbar spine impairment under Table 9.6 to be combined pursuant to Table 14.1. This results in a degree of 28%. As the applicant has received compensation for a degree of 19%, she is entitled to further compensation for the increase of 9% in her degree of whole person impairment.

37. The tribunal sets aside the decision under review and remits the matter to the respondent for assessment with the following directions:

(a) that the applicant has an increase in the degree of permanent impairment to her lower limb function of 10% for the purposes of subsection 25(4) of the Safety Rehabilitation and Compensation Act 1988 ("the Act");

(b) that the applicant has a degree of whole person permanent impairment as assessed pursuant to section 24 of the Act in accordance with the Guide to the assessment of the degree of permanent impairment ("the Guide") of 28%;

(c) that the applicant is entitled to further compensation in an amount of 9% of the maximum amount pursuant to section 24 of the Act calculated by deducting the amount of compensation she has received pursuant to section 24, from the entitlement calculated in accordance with (b) above.

The respondent is to pay the applicant's reasonable costs of the proceedings as agreed or taxed.

I certify that this and the 16 preceding pages are a true copy of the decision and reasons for decision herein of Senior Member Pamela Burton

Signed: Daryl Clarke .....................................................................................

Associate

Date of Hearing 2 November 1998

Date of Decision 11 February 1999

Counsel for the Applicant Mr Allan Anforth

Solicitor for Applicant Maliganis Edwards Johnson

Counsel for the Respondent Mr John Wallace

Solicitor for the Respondent Sparke Helmore