Ayad and Secretary, Department of Family and Community Services [2000] AATA 102 (11 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 102

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N99/1249

GENERAL ADMINISTRATIVE DIVISION )

Re ABDULKADER AYAD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr R P Handley, Senior Member

Date 11 February 2000

Place Sydney

Decision The Tribunal sets aside the decision under review and substitutes a new decision exercising the discretion under the Social Security Act 1991, s 1184(1), to reduce the preclusion period affecting the Applicant so that the preclusion period commences on 4 July 1998 and ends on 3 July 2000.

(Sgd) R P Handley

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

Senior Member

CATCHWORDS

SOCIAL SECURITY - Disability Support pension - Preclusion Period - discretion - special circumstances - mental health and social conditioning - hardship.

Social Security Act 1991 - s 1184(1)

Secretary, Department of Social Security v Thompson (1994) 53 FCR 580

Beadle v Director-General of Social Security (1985) 60 ALR 225

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545

Secretary, Department of Social Security v Hales (1998) 82 FCR 154

Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75

REASONS FOR DECISION

Mr R P Handley, Senior Member

1. This is an application by Abdulkader Ayad ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 4 August 1999 affirming a decision of the Secretary of the Department of Family and Community Services ("the Respondent"), and an authorised review officer, to impose a lump sum preclusion period from 4 July 1998 to 1 December 2006.

2. At the hearing, the Applicant was represented by Phillip Dicalfas of South West Sydney Legal Centre and the Respondent was represented by Cheryl Collis of Centrelink. The evidence before the Tribunal comprised the documents produced pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") together with exhibits tendered by the parties. The Applicant, Fatmah Ayad and Wendy Cohen gave oral evidence on behalf of the Applicant, Ms Cohen by telephone.

Background

3. The Applicant, who was born on 5 December 1944 and is aged 55, was injured in an accident at work on 19 November 1986. He received periodic Workers Compensation payments until 3 July 1998. His claim for compensation was settled for the sum of $360,000 on 19 May 1998.

4. In July 1998, the Applicant applied for a Disability Support Pension. On 13 August 1998, the Respondent notified the Applicant that he was subject to a preclusion period in respect of payment of social security payments from 4 July 1998 to 1 December 1998 as a result of his compensation settlement. On 21 August 1998, the Respondent notified the Applicant that his claim for disability support pension had therefore been rejected. The decision to impose a preclusion period was affirmed by an authorised review officer on 17 June 1999 and by the SSAT on 4 August 1999. On 13 August 1999, the Applicant lodged an application for review by the Tribunal.

Applicable Legislation

5. The Applicant does not dispute how the lump sum preclusion period was calculated. However, he contends that there are special circumstances to justify exercise of the Secretary's discretion to treat the whole or part of his compensation settlement as not having been made. Section 1184(1) of the Social Security Act 1991 ("the Act") states:

1184 Secretary may disregard some payments

(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:

(a) not having been made; or

(b) not liable to be made;

if the Secretary thinks it is appropriate to do so in the special circumstances of the case.

Oral Evidence

* The Applicant

6. The Applicant said he was born in Tripoli in Lebanon on 5 December 1944. He was an only child, attending school until the age of 18. On leaving school, he worked in his father's metalwork business and, later, in a factory, studying at night. He obtained a Certificate in English Proficiency before coming to Australia. The Applicant married in 1986 and migrated to Australia arriving on 6 April 1977. He has five children: four sons and a daughter ranging in age from 17 to 30 years.

7. On arriving in Australia, the Applicant obtained employment with Leyland in his first week, working there until the factory closed in 1981. Thereafter, he had various jobs before working for Allco Steel in 1986. He was injured while working at the BHP factory in Wollongong on 19 November 1986. He had been involved in the construction of a 100 metre high building, working as an electric welder. Someone working on the roof of the building dropped a metal column which hit him on the head. As a result, he lost consciousness and fell 10 metres, causing injuries to his skull, arm and hip. He did not regain consciousness for about a month.

8. The Applicant said that, as a result of his injuries, he has not been able to work since the accident although he would like to do so. He suffers from severe nervousness and gets very agitated. His injuries have also affected him in other ways: he has lost his sense of smell and taste and his English has deteriorated. He can still read a little but he gets confused. His written English, which used to be good, is now poor.

9. The Applicant said he suffers pain everywhere. The pain starts in his forehead, spreads to his eyes and ears and the back of his neck then to his shoulders, back, kidneys, waist, hips, down to his legs and feet. He also has pain in the stomach as a result of taking medication. The Applicant said he can only walk for three to four minutes at most and not over long distances. He often spends his days sitting or sleeping because of his headaches and sometimes stays in bed for up to three days.

10. When the Applicant received his compensation settlement, about June 1998, his barrister told him outside the court that he should put the money in the bank and would have to live off it for about six years. However, he had accumulated many outstanding debts over the 12 years since the accident including over $30,000 he had borrowed from his two eldest sons (Mohammed and Mustafa) to enable him and his wife to visit his father three times in Lebanon before he died in 1995. The Applicant and his wife had borrowed about $5,000 for each trip.

11. The Applicant said that at the time of the settlement in June 1998, he needed to buy another car. He had an old 1982 Ford which was rusty and due for registration. He gave the car to a friend whose car had been stolen, who repaired the car and renewed the registration. The Applicant bought a 1996 Ford Laser from an acquaintance of his son-in-law for $15,000. The person selling the car worked with his son-in-law as a spray painter and was going overseas. The car was worth about $25,000. His son-in-law went with the Applicant to look at the car but the Applicant said it was his decision to buy the car. Neither the Applicant's wife nor his mother drives, so it is only the Applicant, or occasionally his son, who drives the car.

12. When the Applicant told his solicitor that he had withdrawn about $60,000 from the bank to pay debts and buy a car, the solicitor said he must leave the rest of the money in the bank so that he could live off it.

13. The Applicant said he went to the Centrelink office at Liverpool on about 29 July 1998 because he is sick and wanted a "pension card" to help with the cost of medication and transport. There was no interpreter present on this occasion and the Applicant could not remember whether other family members went with him. When he visits the Centrelink office, he is sometimes accompanied by his wife, and sometimes by his daughter or one of his daughters-in-law. His daughter or daughters-in-law help interpret for him. The Applicant said he had many different kinds of medication some of which cost more than the standard $3.50 fee. For example, his shampoo costs $14.00 and his stomach pain medication $10.95. The Applicant has taken Panadeine Forte twice or, if he is in pain, three times a day since the accident.

14. The Applicant said that the NSW Department of Housing accused him of having his sons Mustafa and Omar living with him in their rented house and demanded $33,500 in back rent and gave notice that he and his family must vacate his house at 46 Ellis Crescent, Miller, 2168. The Department threatened that if he did not vacate the premises, the Sheriff would throw all their possessions out on the street. The Applicant said he had always informed the Department if any of his children were living with him. He had done nothing wrong. Mustafa had purchased a house where he was living with his wife and child. Omar, who is single, had rented a house.

15. The Applicant was determined to defend his position against the Department in court. On the occasion of the Applicant's first court appearance, a departmental officer had offered to settle the claim for half the debt. The Applicant rejected this offer. By the time the matter came to court on the third occasion, the Department had lost the file papers. But, by this time, the Applicant had left the house and purchased his own house.

16. The Applicant said the Department of Housing indirectly pushed him into buying a house. They were not prepared to try and understand his situation. He had looked around for a house to rent privately but there was nothing suitable that he could afford. The Department's action caused problems between the Applicant and his wife. They had many arguments and had to take a lot of medication as a result. Finally, the Applicant had a quarrel with his wife and left the house. With his mother, he moved into the house he had purchased and it was two months before his wife moved in with them. She remained in the Housing Commission house with their youngest son, Azmi, during those two months.

17. The Applicant said he purchased the house at 36 Flowerdale Road, Liverpool 2170 in his mother's name because of his relationship as her only son. The house was originally advertised for $250,000 but the Applicant managed to secure it for $190,000. It was a sale by a deceased's estate and the beneficiaries wanted to realise their money. The Applicant said it was a cheap house. He said he would not have purchased a smaller house because of the size of his family. His children and grandchildren visit him at home nearly every day.

18. The Applicant acknowledged that he decided to purchase the house and withdrew money from the bank to pay for it even though he was aware of the preclusion period. He explained, however, that he was motivated to do this because of the actions of the Department of Housing and the need to secure accommodation for his family. In cross-examination, the Applicant agreed that he considered his compensation settlement to be money which he had a right to spend as he chose.

19. The Applicant decided to have the house painted, tiled and repaired without consulting his wife because of the arguments he was having with her at that time. The Applicant made the necessary arrangements. The carpets were removed and the floors tiled out of necessity because he, his wife and Azmi, who lives at home, all suffer from asthma. Repairs to the bathroom - such as replacing broken taps - were also required, and to the kitchen where some of the shelves were disintegrating.

20. The Applicant said he paid for the repairs in cash. He withdrew the money from the bank to do this when reminded by family members because he is very forgetful. However, the Applicant said he is the signatory for his bank account and manages his own financial affairs. The Applicant was asked about the account from Mr Moussa for renovations to the kitchen. The Applicant said Mr Moussa is a relative of his mother's, and there was no expectation that this money would be paid unless the Applicant had sufficient funds. The account, which has not been paid, was for the bare cost of the materials and cupboards for the kitchen and did not include the cost of installation. The Applicant said his family was very well-known in Lebanon - a bit like the Queen's family in Australia - and this is why people do not press for payment.

21. The Applicant said his youngest son Azmi, who is intellectually disabled, is aged 17. Azmi has been doing some casual work for Franklins collecting shopping trolleys outside the supermarket. He has only been doing this for a short time and works when he gets called in, usually on 2 or 3 days a week, when they need him. Azmi earns $100 or less every 3 days. He has not been called in to work for about 2 weeks.

22. Before the accident, the Applicant said he sometimes gambled. Afterwards, he did not gamble because he had no money. Since the settlement, he has gambled a little bit. The Applicant only took up smoking after the accident. He was smoking up to four packs of cigarettes per day but has now cut down to two packs. He cannot give it up. The Applicant's current debts include money owed to the tobacconist for cigarettes and to the grocer for food purchased for his family. The Applicant explained that the accounts from the Continental Supermarket in respect of groceries for the period June to September 1999 (A7) were greater than usual because religious holidays occurred during this time when it was necessary to prepare food for members of his family. However, the Applicant acknowledged that he would not reduce his spending if this meant depriving himself.

23. The Applicant said he asks his wife, son or mother for money from time to time to buy cigarettes. However, his mother returned to Lebanon four to five months ago. Cultural reasons make it difficult for the Applicant to impose an obligation on his wife and Azmi to pay him rent. Apart from Azmi, his other sons all work and will help the Applicant with money when he asks. But they all have their own financial commitments and payments to make.

* Fatmah Ayad

24. Mrs Ayad said her husband's behaviour has changed significantly since the 1986 accident. He has become more difficult and does not answer questions directly. In late 1998, Mrs Ayad was having differences with her husband all the time in relation to the Department of Housing's threat to evict them from their house. She asked her husband to find them another house but he kept saying that the Department of Housing could do nothing. She demanded that her husband buy the house they were living in. He went to the Department and paid a $200 deposit but they later refused to sell the house and returned the deposit. She also told her husband to look for alternative rental accommodation but he refused. She would have been prepared to live in another rented house although she did not herself look for one.

25. Mrs Ayad said she did not at first move into the house her husband purchased because they were having problems and she was not in agreement with him. She asked the Department to find alternative accommodation for her and Azmi. However, at no time did she threaten to leave him. Then her children came and spoke with her and took her to her husband's house. Mrs Ayad said her children had been aware that her husband intended to buy a house but she did not know whether they discussed the effect of the preclusion period with him. When she moved into the house, the renovations on the house were finished. Her husband had not consulted her about the renovations.

* Wendy Cohen

26. Ms Cohen said she is a self-employed Clinical Psychologist. The Applicant was referred to her by his solicitor in 1997 for assessment of the effect of the accident. Ms Cohen interviewed and assessed the Applicant on 21 January 1997 and prepared a report dated 17 February 1997 (A9). Ms Cohen subsequently prepared a report for the present proceedings dated 4 January 2000 (A1). She said she concluded from the psychological testing, and having considered ten other reports supplied by the Applicant and his solicitor, that the Applicant was unfit for his former employment as a welder. The tests indicated that the Applicant was now a man with borderline retarded intellect and severe memory impairments. In her view, the only sort of work that a person in such a category could perform was heavily supervised work or that in a sheltered workshop. It was unlikely that the Applicant's condition would change except as part of the normal aging process.

27. Ms Cohen said at the time she tested the Applicant, he had a reading age of seven years. His ability to write in English was "fairly limited". She said it was unlikely that the Applicant would have been able to manage the repayment of his debts after having received his compensation settlement. It is likely this would have been directed by members of the Applicant's family. Ms Cohen said that in a report to the Applicant's solicitor dated 3 March 1997, she had recommended that management strategies be put in place to ensure that the Applicant's day-to-day life remained as safe as possible. Ms Cohen was not aware whether this recommendation had been followed.

Submissions

* Applicant

28. Mr Dicalfas, for the Applicant, said the Applicant's decision to purchase a house was motivated by the Department of Housing's action to evict him. Mr Dicalfas referred to a letter dated 3 December 1998 from the South West Tenants' Advice Service (part of the South West Sydney Legal Centre) seeking a grant of legal aid to assist Mrs Ayad in opposing the Department's action (A2). He also referred to the Department's application to the Residential Tenancies Tribunal dated 20 October 1998 seeking possession of the premises and that the tenant pay arrears of $33,051.75 (A3), and to the Department's letter dated 9 July 1999 notifying the Tribunal that the tenants had vacated the premises and that the Department had therefore withdrawn the application before the Tribunal (A4). Mr Dicalfas said that even though the Department's application had been withdrawn, there had been no indication that the debt had been waived.

29. Mr Dicalfas contended that the Applicant's capacity to react to the Department of Housing's action for arrears of rent of $33,000 and to their eviction notice was limited by the brain injury he had suffered. The Applicant's only other option was to rent a house. He had attempted to find accommodation but was unable to find anything suitable because of a lack of income. The house which the Applicant subsequently purchased in Liverpool was at the bottom end of the market but big enough to suit the needs of his family. The renovations which the Applicant organised, without consulting his wife, were necessary and are irreversible.

30. Mr Dicalfas submitted that the Applicant needed to purchase a car because his old car was in a poor state of repair and he needed a car for transport because of the limitations imposed by his injuries. He also needed the car to transport his mother and intellectually disabled son. At $15,000, the car was not expensive.

31. Mr Dicalfas said that while the crux of the case was the Department of Housing eviction, cultural issues also had to be taken into account, especially the position in a family of a father and husband in the Applicant's community. Such a position does not allow for an arrangement between a man and his wife or son as to money, although a man may ask for money for particular purposes.

32. Mr Dicalfas sought to rely on his written submission as to the relevant case law. He asked that the Applicant's preclusion period be shortened to take account of his special circumstances and suggested that it would be appropriate to waive the remainder of the preclusion period from the time of the hearing. Mr Dicalfas referred the Tribunal to the Federal Court decision in Secretary, Department of Social Security v Thompson (1994) 53 FCR 580 as to the use of "intuitive justice" in redetermining the length of a preclusion period.

* Respondent

33. Ms Collis, for the Respondent, submitted that the discretion to reduce the preclusion period should not be exercised in the Applicant's case. The Applicant and his solicitor had been informed in 1995 of the effect of any compensation settlement in terms both of a charge in respect of social security payments and of a preclusion period. This had been reinforced in advice to the Applicant in July 1998. If the Applicant had any problem in understanding how he would be affected, he had his family and interpreters to assist him.

34. Ms Collis contended that the Applicant is capable of financial restraint - for example, he had been able to limit his gambling. Ms Collis suggested he should stop smoking and, according to her calculations, save $168 per week. Ms Collis said the Applicant's pattern of spending indicated a person spending beyond their means, somewhat recklessly. She said the list of purchases from Continental Supermarkets (A7) appeared to be akin to those necessary to run a business. Moreover, the account from Mr Moussa for kitchen renovations (A8) was not an arm's length transaction.

35. Ms Collis acknowledged that the Applicant's brain injury may affect his thinking from time to time and that Ms Cohen had suggested the need for management strategies for the Applicant's life. However, even though family advice was available, it was the Applicant's clear intention and choice to purchase a house, despite being aware of the consequences. Ms Collis noted that the Applicant had organised the renovations on the house and, with some assistance from his family, payments for the work carried out.

36. Ms Collis said it was clear that the Applicant does not accept the concept of "double dipping". His view is that his compensation settlement is for him to spend as he chooses. Ms Collis noted that provisions of the Act as to the effect of a compensation settlement on social security benefits paid to a spouse had been relaxed in March 1997. As a result, Mrs Ayad receives a Carer Pension (R1). Mrs Ayad and their son Azmi, who receives Disability Support Pension, together receive $538.50 per fortnight in social security benefits. Ms C said the Applicant should seek payments from his wife and son in respect of their accommodation.

37. Ms Collis concluded that while she recognised the Applicant's circumstances are difficult, they are not sufficiently special to warrant exercise of the discretion in s 1184(1).

Consideration of Law and Findings

38. The issue to be determined by the Tribunal is whether, pursuant to s 1184(1) of the Act, there are special circumstances which justify exercise of the Secretary's discretion to treat the whole or part of the compensation settlement as not having been made. Although the Act provides no guidance as to the meaning of "special circumstances", this has been the subject of statutory interpretation by the Federal Court and the Tribunal.

39. The leading case is probably Beadle v Director-General of Social Security (1985) 60 ALR 225, a decision of the Full Federal Court. In Beadle, the Court did not think it possible to lay down precise limits or precise rules. It would depend upon the circumstances. Moreover, even though the phrase 'special circumstances' lacks precision, it "is sufficiently understood in our view not to require judicial gloss" (at 228).

40. The Court affirmed the decision of the Tribunal under review in that case, Re Beadle and Director-General of Social Security (1984) 6 ALD 1, in which the Tribunal, whilst acknowledging that the phrase 'special circumstances' is "incapable of precise or exhaustive definition", said, nevertheless, that the circumstances "must have a particular quality of unusualness that permits them to be described as special" (at 3).

41. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, Kiefel J, after referring to the Federal Court's decision in Beadle (supra, 1985), observed that special circumstances:

"would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary."

42. In the Federal Court decision in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 162, French J said of the "concept" of special circumstances that the evident purpose "is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness" in the event of a rigid application of the law: "It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words".

43. The Tribunal finds that the Applicant was injured in a work accident on 19 November 1986, suffering brain damage which, according to Clinical Psychologist Wendy Cohen, has left him intellectually impaired. Ms Cohen said the Applicant "had a very poor memory and would have difficulty managing his day-to-day affairs" (A1). The Applicant also gave evidence that he is very forgetful and needs reminding to do things by members of his family. Mrs Ayad said her husband's behaviour had changed significantly since the accident and he has become more difficult. The Tribunal finds that the Applicant's capacity to manage his affairs and engage in rational decision-making has been adversely affected by brain damage.

44. The Tribunal finds that the course of events which led to the Applicant purchasing a house was triggered by the Department of Housing's action in seeking to recover alleged arrears of rent and evict the Applicant and his family from their rented premises at 46 Ellis Crescent, Miller. The Applicant and Mrs Ayad had disagreements over how to handle the issue which ultimately led to their separation for a period of 2 months. In evidence, the Applicant said he had tried to find alternative rented accommodation but that there was nothing suitable available.

45. In the Tribunal's view, the Applicant's decision to purchase the house at 36 Flowerdale Road, Liverpool, must be considered in the context of the Applicant's capacity to manage his own affairs and make rational decisions, and the social and cultural context in which this occurred. The Applicant is of a Lebanese background. The answers he gave in giving evidence and his attitude indicate that as a man and head of his family he considered it was his role to make important decisions and take responsibility for his family, including his intellectually disabled son Azmi. There was also an expectation that his home was somewhere that his other four children and their families might visit.

46. The house the Applicant purchased was not an expensive house. Although the Applicant was aware of the preclusion period, the Tribunal finds he felt pressured to take action to secure accommodation for his family. The only way he felt he could do this was by buying a house. The renovations undertaken - the painting, tiling and repairs - appear to the Tribunal to have been reasonable.

47. The Applicant also purchased a replacement car in about July 1998. In view of the restrictions on the Applicant's ability to walk as a result of his accident, the Tribunal finds ownership and use of a car was reasonably necessary. The purchase of a second-hand car for $15,000 was not extravagant.

48. In his Statement of Facts and Contentions, Mr Dicalfas referred the Tribunal to the Tribunal decision in Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75, where Mr Hickman had suffered brain damage which impaired his ability to make independent judgements about his financial affairs. This was a significant factor which persuaded the Tribunal that there were special circumstances which justified disregarding part of the compensation settlement for the purpose of calculating the preclusion period.

49. Mr Dicalfas also referred the Tribunal to the Federal Court decision in Thompson (supra). Einfeld J held, at 586, that "general factors such as the mental health and social conditioning of the individual" were matters which the Tribunal could consider in determining the preclusion period should be shortened. Einfeld J also considered how the reduction in the preclusion period had been calculated. He said, at 586, that:

"when a special circumstance relates not to a specific element of the compensation award, but to the general circumstances of the recipient, the decision-maker (in this case the Tribunal) would rather direct its mind to the effect on the recipient of any reduction in the preclusion period. It may be that after such consideration the Tribunal decides on some time by which the period should be reduced."

50. The Tribunal is mindful of Ms Collis' submissions that the Applicant was at all times aware of the preclusion period and that the objective of the imposition of preclusion period is to prevent "double dipping". She pointed to the $538.50 per fortnight which Mrs Ayad and Azmi receive in social security benefits. While acknowledging that the Applicant's circumstances are difficult, she submitted that those circumstances are not sufficiently special to warrant exercise of the s 1184(1) discretion.

51. The circumstances which, in the Tribunal's view, are significant in the Applicant's case are, first, his intellectual impairment and consequent limited capacity to make rational decisions, second, the pressure exerted by the Department of Housing in seeking to recover arrears of rent and evict the Applicant and his family from their rented accommodation, and, third, the social conditioning in terms of the social and cultural considerations which affected the Applicant's decision-making. The Tribunal notes that the Applicant's expenditure of his compensation settlement was not extravagant but rather intended to secure his family's accommodation and provide for his transport needs. On balance, the Tribunal considers that these circumstances are sufficiently special in the sense of being unusual to the extent that greater hardship would be caused to the Applicant if the s 1184(1) discretion is not exercised.

52. Since the special circumstances relate to the general circumstance of the Applicant rather than a specific element of the compensation settlement, the Tribunal considers that the "intuitive justice" approach approved by Einfeld J in Thompson (supra) is appropriate. In the Tribunal's view, there needs to be recognition, on the one hand, of the objective behind the provisions of the Act in imposing a preclusion period - to prevent "double dipping" - while, on the other hand, taking account of the Applicant's special circumstances. For the Applicant to be subject to a preclusion period of 2 years appears to be an appropriate balance in terms of his current financial situation - Mr Dicalfas outlined debts of $10,786.80 in his Statement of Facts and Contentions - and the fact that his wife and son are receiving financial support of $538.50 per fortnight in social security benefits.

53. The Tribunal therefore decided to reduce the preclusion period to a period of two years from 4 July 1998 to 3 July 2000, by treating that part of the compensation settlement which equates to the remainder of the preclusion period (per s 17 and s 1165) as not having been made, in accordance with the discretion in s 1184(1) of the Act.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Senior Member

Signed: .....................................................................................

Associate

Date/s of Hearing 14 January 2000

Date of Decision 11 February 2000

Counsel for the Applicant Phillip Dicalfas

South West Sydney Legal Centre

Counsel for the Respondent Cheryl Collis