Counsell and Commissioner for Superannuation [2000] AATA 1099 (13 December 2000)

Last Updated: 4 January 2001

DECISION AND REASONS FOR DECISION [2000] AATA 1099

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº V99/363

GENERAL ADMINISTRATIVE DIVISION)

Re: WARWICK JOSEPH COUNSELL

Applicant

And: COMMISSIONER FOR

SUPERANNUATION

Respondent

DECISION

Tribunal: Mrs H.E. Hallowes, Senior Member

Mr J.T.C Brassil, am, Member

Mr W.G. McLean, Member

Date: 13 December 2000

Place: Melbourne

Decision: The decision under review is affirmed.

(sgd) H.E. Hallowes

Senior Member

SUPERANNUATION -- ceased to be eligible employee -- late election to defer -- whether desirable to recognise late election -- decision affirmed

Superannuation Act 1976 ss.62, 80, 137, 141, 154, 157

Commonwealth Bureau of Roads Act 1964

Superannuation Act 1922

Commonwealth Bureau of Roads (Repeal) Act 1977 s.8

Public Service Act 1922 s.72A

Retirement Benefits Act 1970 (Tas)

REASONS FOR DECISION

13 December 2000 Mrs H.E. Hallowes, Senior Member

Mr J.T.C Brassil, AM, Member

Mr W.G. McLean, Member

1. On 14 October 1997 Mr Counsell lodged an application for a review of a decision of a delegate of the Commissioner for Superannuation made on 9 September 1997 under subsection 154(4) of the Superannuation Act 1976 ("the Act"). The delegate confirmed a decision of another delegate made on 11 May 1994 not to direct under subsection 157(1) of the Act that the election made by Mr Counsell on 7 September 1993 under subsection 137(1) be treated as if it had been made within the period allowed.

2. Subsections 137(1) and 157(1) provide:

137.(1) A person who:

(a) ceases to be an eligible employee in circumstances to which paragraph (b) does not apply and, upon so ceasing, is not entitled to pension under this Act or invalidity benefit in accordance with section 69, 72 or 73; or

(b) ceases to be an eligible employee in circumstances by virtue of which the person is to be deemed, under subsection 58(3), to have retired involuntarily;

may, not later than 21 days after the person so ceases to be an eligible employee, elect, by notice in writing to the Commissioner, that this Division apply in relation to the person.

. . .

157.(1) Notwithstanding anything contained in this Act, where an election under this Act is made by a person after the expiration of the period allowed by or under this Act for the making of the election, and the Commissioner is satisfied that in all the circumstances of the case it is desirable that the election should be recognized, the Commissioner may direct that the election be treated as if it had been made within the period allowed and the election shall have effect accordingly.

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") together with further material lodged by both parties at the hearing. Mr Counsell was represented by Mr A. Thomas, of counsel; the Commissioner being represented by Mr B. Dube, principal solicitor with the Australian Government Solicitor's office. Mr Dube advised the Tribunal that Mr Counsell's superannuation file had been destroyed under standard archival procedures. Material in the documents had been obtained from Mr Counsell's personnel files from the Department of Transport, the Department of Transport and Works (Tasmania) and his file from the Retirement Benefits Fund Board Tasmania.

4. In lodging his application Mr Counsell stated that he wanted the decision to be reviewed because it was based on unsubstantiated assumptions. The evidence before the Tribunal, which was not in dispute, satisfies it that in April 1974 Mr Counsell was employed by the Commonwealth Bureau of Roads ("the Bureau") under the Commonwealth Bureau of Roads Act 1964. On 1 July 1976 the Act came into force superseding the Superannuation Act 1922 ("the superseded Act") which however remains in force as amended. By virtue of his employment with the Papua New Guinea Office, Mr Counsell became a member of the superannuation scheme established under the superseded Act and therefore became an "eligible employee" as, immediately before the commencement of the Act, he was an employee for the purposes of the superseded Act. Mr Counsell commenced to contribute to the Commonwealth Superannuation Scheme ("the CSS") under the Act.

5. On 29 June 1977 the Bureau ceased to exist by virtue of the Commonwealth Bureau of Roads (Repeal) Act 1977 ("the Repeal Act"). Under section 8 of the Repeal Act Mr Counsell again became an officer of the Commonwealth appointed under the Public Service Act 1922. Mr Counsell then commenced employment with the Commonwealth Department of Transport (Bureau of Transport Economics).

6. Mr R. McCormack, now retired, gave oral evidence to the Tribunal that he was the Secretary to the Bureau from its inception, heading up its administrative division. With the demise of the Bureau on 29 June 1977, his position disappeared along with the positions of all other members of the Bureau. As with Mr Counsell he had been a member of the superannuation scheme under the superseded Act. After the Act came into effect he became a member of the CSS. When it became apparent that the Bureau was going to cease to exist discussions were held with the Public Service Board in order to protect the interests of staff and they were all offered positions with the Commonwealth Department of Transport. It was clear to him that ultimately all continuing staff would be required, in the future, to move to Canberra. It was a time of trauma and anxiety. He doubted that superannuation was an issue when staff were focusing on their future employment. He received circulars from the Public Service Board and circulated those to staff. It was his recollection that if he was asked questions about superannuation, which he or his staff could not answer, he would refer staff to the Superannuation Board in Melbourne. Staff were not terminated or retrenched rather they were offered continuity and positions with the Commonwealth Department of Transport (Bureau of Transport Economics). He had no recollection of a Minute Paper dated 31 May 1977, signed by Mr Counsell, which was directed to the Bureau through its Secretary with respect to retrenchment, retirement and transfer of staff. He had spoken to staff as a group and also seen a number of them individually and he may have seen Mr Counsell. He told the Tribunal that, if Mr Counsell had come to see him about an application for refund of accumulated contributions/lump sum benefit or election for preservation of superannuation rights pro forma S2A form, he would have referred him to the Superannuation Board in Melbourne because he had no information about the form. The Note on the top of the form advises:

Note: This application form should be completed by a contributor who resigns or a contributor who retires and who elects to exercise an option to take a Lump Sum Benefit in lieu of a pension entitlement.

This form should not be completed by a contributor who is applying for a pension and a refund of accumulated contributions or supplementary contributions. [existing emphasis]

An applicant is instructed to:

apply for a refund of accumulated contributions )

* apply for payment of a lump sum benefit ) under the provisions of the

elect for preservation of superannuation rights ) Superannuation Act

* Delete whichever inapplicable

Applicants are asked to provide the address to which a refund cheque is to be forwarded.

7. In a minute dated 31 May 1977 Mr Counsell gave advice to the Bureau:

My advice is that if through wrong advice or lack of advice whether caused unwillingly or deliberately by action or inaction on the part of the Bureau or any of its members any member of staff makes any decision or fails to make a decision which demonstrably disadvantages him or her in the future he or should could expect to recover damages from the Bureau or any of its members (ultimately the Commonwealth).

Mr Counsell went on to state:

In view of this I believe that the Bureau should take the following steps immediately

(a) advise all staff not to sign the "notice of election to join the Public Service" until further notice; and

. . .

(e) issue notices to all staff advising them of the termination of their employment and their impending retrenchment.

8. Mr McCormack said that the last day of employment with the Bureau was Wednesday, 29 June 1977 and that on Thursday, 30 June 1977 the former employees of the Bureau went to work at the same place, it was just that they had a "new boss". Mr McCormack acknowledged that his signature was on the letter from Mr Counsell dated 23 June 1977 to the Acting Chairman of the Bureau in which Mr Counsell wrote:

. . .

I understand from Office Circular No. 46/1977 of June 20, 1977 that my employment by the Commonwealth Bureau of Roads is to be involuntarily terminated on the 29th June, 1977, as a result of proclaimation [sic] of the Commonwealth Bureau of Roads (Repeal) Act, 1977. I have elected, in terms of the copy letter enclosed herewith, to accept an offer of new employment in the Australian Public Service. You will see from that copy I have made that election understanding that my rights under the Long Service Leave (Commonwealth Employees) Act 1976 and the Superannuation Act 1976 will not be affected by my assumption of that new employment. I therefore request you to take the necessary steps for the authorization of payment to me of the appropriate amount of salary in lieu of long service leave pursuant to S.17 (2) of the first mentioned Act and to a lump sum benefit under S.62 Of the Superannuation Act.

I enclose completed forms for those purposes.

9. The Tribunal notes that Mr Counsell refers to "forms" although only one form apparently remains in existence, Mr Counsell's application for payment in lieu of long service leave, in which he noted that his position was Clerk Class 9. By letter of the same date, Mr Counsell had written to the Acting Secretary of the Public Service Board accepting an offer of entry into the Australian Public Service. Mr Counsell said that he understood his appointment constituted "completely new employment" and that it would have no effect on his rights with respect to his long service leave and superannuation. By letter dated 24 June 1977 Mr Counsell was advised by the Acting Secretary of the Public Service Board that his APS employment was continuous with his employment by the Bureau and that his entitlements, which had accrued under the superseded Act and the Act during his employment, with the Bureau would automatically be carried over. Mr J. Holton, Chairman of the Bureau wrote to Mr Counsell on 27 June 1977 acknowledging Mr Counsell's request for "authorisation of payment . . . of the appropriate amount of salary in lieu of long service leave . . . and to a lump sum benefit under S.62 of the Superannuation Act".

10. Under cross-examination Mr McCormack conceded he was responsible for the personnel of the Bureau and the dissemination of information to them but he disputed that the only information made available to staff came through the Bureau. The Tribunal had before it a Superannuation Board Circular Nº 1976/8 with respect to the "New Superannuation Scheme for Commonwealth Employees Effective from 1 July 1976" (Attachment 'B') which had been distributed to all departments and approved authorities. The Tribunal is satisfied that Mr Counsell was provided with a copy of that circular by Mr McCormack, Mr Counsell providing the Tribunal with a copy of Staff Circular Nº 2/1976 dated 12 April 1976 which was distributed to all staff of the Bureau over someone else's signature on behalf of Mr McCormack. That document sets out, amongst other things, "Unit Restriction Due To Preservation" at paragraphs 14-15. The staff circular advised that a paper with respect to preservation benefits would be issued in the near future. Mr McCormack said that he was not over all the details of the Act including details with respect to preservation and he therefore would not have given information with respect to preservation, in any event, it was only an issue for those who resigned, it was not an issue for those, like Mr Counsell, who again became public servants.

11. On 8 August 1977 Mr Counsell was granted leave without pay under section 72A of the Public Service Act and he was seconded to the Tasmanian Department of Main Roads. Mr Counsell continued to contribute to the CSS until 29 September 1977 and his evidence to the Tribunal was that he intended to continue to contribute to the CSS but, after September 1977, his contributions were returned to him. The legislation had been amended such that States were then required to make contributions to the CSS on behalf of staff if staff were on secondment, and the State of Tasmania refused to make contributions on behalf of Mr Counsell.

12. Having been offered a permanent appointment to the Tasmania Transport Commission ("the Commission") Mr Counsell resigned from the Australian Public Service on 3 June 1980, thereby ceasing to be an eligible employee for the purposes of the Act. On 4 June 1980 he became an employee for the purposes of the Retirement Benefits Act 1970 (Tas). Mr Counsell did not become a contributor to the Tasmanian scheme until 25 June 1981 as he did not undergo the prerequisite medical examination for the purposes of the Tasmanian legislation until that date. He accepted responsibility for this oversight because he failed to notice on his pay slips that the Commission were not deducting superannuation contributions from his salary during the initial 12 month employment period.

13. On 17 September 1980 Mr Counsell was paid a refund of his accumulated contributions to the CSS and interest amounting to $3411.81 under section 80 of the Act. There is no documentation still available with respect to what may have occurred in 1980 following Mr Counsell's resignation.

14. The Tribunal notes from the documents that Mr Counsell's leave without pay from the Commonwealth Public Service was extended on two occasions but on 29 February 1980 he was advised that no further extension would be considered. It also notes that, while on leave, Mr Counsell sought promotion within the Commonwealth Department of Transport being advised by letter 14 May 1980 that his promotion to Clerk Class 11 had been confirmed. On 20 May he was advised by the Secretary of the Commission that his appointment to the Commission had been approved and amongst other things:

. . .

As this is a permanent position you will be required to contribute to the Retirement Benefits Fund and you will need to arrange action in respect of your present superannuation situation.

15. By letter dated 23 May 1980, Mr Counsell wrote to the Director of the Bureau of Transport Economics, Department of Transport in part as follows:

. . . Accordingly, would you please treat this letter as formal notification of my resignation from the BTE and from the Commonwealth Public Service. Would you please note that the Transport Commission has indicated its preparedness to accept transfer of my accrued long service leave entitlements, but I will be seeking a refund of my past superannuation contributions from the Commonwealth Superannuation Board. (emphasis added)

He ended his letter by expressing the hope that any inconvenience he may have caused would not adversely affect him should he seek a career in the Commonwealth Public Service in the future. In oral evidence to the Tribunal Mr Counsell said that perhaps the correct word should have been "and" not "but". By letter of the same date, Mr Counsell wrote to the Secretary of the Commission advising, amongst other things:

. . . At the appropriate time, but in any event within one month of the date (to be) arranged for my transfer from the Commonwealth to the Commission, I will advise the Retirement Benefits Fund Board of my election in respect of contribution rates and any intention on my part to seek the crediting of past service.

16. By letter dated 7 September 1993, Mr Counsell wrote to the Commissioner for Superannuation advising, amongst other things, that when the Bureau was abolished in September 1977 all officers were offered equivalent positions in the Bureau of Transport Economics Department of Transport in Canberra. He stated that the Public Service Commission had advised that officers either had to move to Canberra or resign. He noted that in 1980 he accepted a position with the Commission in Tasmania. He stated that he received no advice about his superannuation options at that time but he had received a cheque for $3411.01 on September 1980 representing his superannuation contributions and interest. He asked for advice on:

. . . options of which I should have been advised:

- in 1977 when the Commonwealth Bureau of Roads was abolished;

- in 1980 when I left the Commonwealth to join the Tasmanian State Service.

17. Mr Counsell was advised by letter dated 27 October 1993 that his service from 1970 to 1977 would be examined as a late election. A form S2A was enclosed which was ". . . similar to the one you completed on resignation". The letter continues:

. . . You will note that the title of the form includes the words "ELECTION FOR PRESERVATION OF SUPERANNUTION RIGHTS'. You will also note that to receive the refund of accumulated contributions, you deleted the words "apply for payment of a lump sum benefit" and "elect for preservation of superannuation rights".

The mention of "preservation of superannuation rights" in two places on the application form you completed would, at the very least, have put you on notice that preservation of superannuation rights was a feature of the CSS. To ensure that the delegate has the opportunity to consider all matters of relevance, you are invited to elaborate on this aspect of your case if you wish. You may, of course, also provide any further material which you would like the delegate to consider.

18. By letter dated 19 November 1993, Mr Counsell advised the Commissioner for Superannuation that he did not recall completing a form S2A on or before his resignation in 1980. He assumed that the refund of his contributions had been automatic. He contended that the form would not have put him on notice with respect to the preservation of his superannuation rights as he had previously been advised that that option was only available to people who were temporarily leaving the Commonwealth Public Service and intending to return.

19. Mr Counsell gave oral evidence that in late 1976 or early 1977 he was told that the Bureau was to be abolished and positions in Canberra would be offered to staff or otherwise they would be taken to have resigned. He made enquiries of the Public Service Board, the Department of Transport and the then Retirement Benefits Board with respect to superannuation entitlements. He was one of three staff members of the Bureau elected to make enquiries with respect to long service leave and superannuation entitlements on behalf of other staff. As a result of his enquiries, he understood that the only options open for staff were to either take up the offer of a position in Canberra at an undetermined date and retain all benefits or otherwise superannuation contributions would be returned.

20. Mr Counsell told the Tribunal that he wanted to preserve his rights and that he had therefore sent the Bureau the advice dated 31 May 1977, referred to in paragraph 6 above. He said that he had written paragraphs 12(a) and (e) to persuade the Bureau that employees' contributions should be preserved. He acknowledged receipt of a S2A form and he noted what it said with respect to the preservation of rights. He contended that he took the form to Mr McCormack to find out what it meant in early June 1977. Because Mr McCormack was the senior administrator of the Bureau he thought that he could rely on his advice. He told the Tribunal that he wanted to be retrenched so that he could invest his and the Bureau's superannuation contributions. He said that he "assumed" that he showed Mr McCormack the form. He had no actual recall. He went on to say that Mr McCormack had told him that the option with respect to preservation was only available to those leaving the Commonwealth Public Service for a short time and returning, "He made it clear this was not an option for me". He said that he relied on Mr McCormack and acted on his advice. He assumed that he returned his S2A form with his letter dated 23 June 1977, together with his application for payment in lieu of long service leave.

21. Mr Counsell said that in 1977 he had looked for an option to remain in the Commonwealth Public Service to enable him to preserve his superannuation benefits while at the same time arranging secondment to the Tasmanian Public Service. He said that he had not made any election in 1980 and he thought that he would have been able to rollover his CSS benefits into the Tasmanian Retirement Benefits Fund but he was unable to do so as there had been a gap in his contributions when he inadvertently failed to immediately undergo medical examination and there was a delay in his joining the Tasmanian Retirement Benefits Fund. Approximately three years after banking his refunded contributions when he had accumulated further funds through buying and selling land he put a deposit on a pair of townhouses in Hobart as an investment property.

22. Mr McCormack objected to Mr Dube's suggestion that he had used the word "but" in his letter to the Director of the Bureau of Transport Economics dated 23 May 1980 because he was aware that he had an option open to him and that one of the options was to preserve his entitlement in the fund. He agreed that in 1980 his intentions had been to take his contributions out of the CSS and to invest in the Tasmanian Retirement Benefits Fund but he told the Tribunal that, if had been aware that he had an option to preserve his rights, he would have had to "think about" it.

23. Mr C. Bayley, who was also employed by the Bureau between 1970 and 1977, gave oral evidence to the Tribunal that in 1977 he had received no advice with respect to preservation of his superannuation contributions. He had not come into the Bureau from the Commonwealth Public Service, as had Mr Counsell, but rather, he was a new recruit to the Bureau from outside. He understood that he would either be deemed to have retired from the Bureau and receive a refund of his superannuation contributions with interest or that he would become a public servant. He understood that, if he had been a public servant, there was an entitlement to preserve. He could not recall receiving any briefings with respect to his entitlements but there had been written communication.

24. On 5 September 1996 the Commonwealth Superannuation Scheme Board approved guidelines for handling late elections for preservation of entitlements arising from past service. The issue for the Tribunal is, having regard to all the circumstances, whether it is desirable to treat Mr Counsell's election dated 7 September 1993 as if it had been made within the time limit prescribed under subsection 137(1) of the Act, that is, by 24 June 1980. The guidelines provide that it is not desirable for a late election to be granted solely or largely on the grounds that an applicant contends not to have properly understood the form S2A when it was signed and the form is to be taken to signify an informed decision. An applicant, not understanding choices available, should have made enquiries prior to completing the form S2A and failure to make enquiries signifies an informed choice unless an applicant received materially erroneous or misleading advice which would cause an applicant to misunderstand their options.

25. Mr Thomas put to the Tribunal that Mr Counsell had been materially misinformed in 1977 by Mr McCormack, an authoritative source on whom it was reasonable for him to rely concerning the options available to him. Mr Dube contended that Mr Counsell had seen the form S2A and the Tribunal so finds, Mr Counsell having given evidence that he took the form to Mr McCormack for advice. What is less certain is whether Mr Counsell filled out the S2A form in 1980 or whether someone else may have completed the form for him, in any event, he received a refund of his contributions with interest.

26. The Tribunal is satisfied that Mr Counsell is a meticulous and careful man, taking an interest in his entitlements, as evidenced by exhibit A and the retention by him of Staff Circular Nº 2/1976 with respect to the superannuation scheme established under the Act. The Tribunal notes that the distribution to departments and approved authorities of the Superannuation Scheme Circular with respect to Part 7, Preservation of Superannuation Rights by the Commissioner, was well after Mr Counsell had gone to Tasmania, 2 August 1978 (exhibit 3, Attachment 'E'). Although any S2A form signed by Mr Counsell no longer exists there is contemporaneous evidence that he intended to seek a refund of his contributions. This is not however conclusive of his knowledge with respect to his rights.

27. The Tribunal finds that Mr Counsell made enquiries with respect to his superannuation entitlement in 1977 although he did not give evidence of making further enquiries with respect to his rights in 1980. Mr Counsell "assumed" that he showed Mr McCormack the S2A form in 1977 and the Tribunal finds on the balance of probabilities that Mr McCormack did suggest to Mr Counsell that preservation rights were with respect to staff members likely to return to the Commonwealth Public Service but that he would also have referred Mr Counsell to the Superannuation Board. The Tribunal further finds that meetings with the Public Service Board were arranged for staff as well as the provision of other information to them. It was not long after the Act had come into effect and it is more probable than not that Mr McCormack would not have taken it upon himself to be the only source of advice for Mr Counsell. The Tribunal therefore finds that Mr Counsell did not receive materially erroneous or misleading advice from Mr McCormack which caused him to misunderstand his options.

28. Although Mr Counsell lodged his application for late election promptly after having matters drawn to his attention in 1993, the Tribunal finds that he was probably aware of options available to him in 1977. He was put on notice that he should have made further enquiries and it appears from the evidence that Mr Counsell made those enquiries. There is no evidence that Mr Counsell made further enquiries in 1980 but the evidence satisfies the Tribunal that it was then Mr Counsell's intention to transfer his entitlements into the Tasmanian Retirement Benefits Fund as evidenced by the correspondence at that time. Mr Counsell has certainly conceded that he was sufficiently on notice to go and ask questions of Mr McCormack. Although the Bureau no longer existed in 1980, it is clear from the evidence that Mr Counsell kept in contact with the Department of Transport. There is however no evidence that the further circulars with respect to superannuation which were available by August 1978 were made available to him.

29. No submissions were made by Mr Counsell with respect to his physical or mental capacity under Guideline 2(i) but the thrust of Mr Counsell's arguments with respect to Guideline 2(ii) is that he was materially misinformed by an authoritative source on which it was reasonable for him to rely, Mr McCormack. Certainly Mr McCormack was an authoritative source within respect of the administration of the Bureau but the Tribunal has found that Mr McCormack also pointed Mr Counsell to other avenues of information and the Tribunal is satisfied that as a Class 9 Clerk Mr Counsell had the personal resources to not only make those enquiries, which he agreed he made, but also to understand information provided to him. If he had wanted other than the refund of his contributions in 1980 to then invest in the Tasmanian Retirement Benefits Fund he was in a position in 1980 to make further enquiries which he failed to do. By letter dated 6 September 1977, Mr Counsell was advised by the Commissioner of Superannuation that:

. . . The benefit to which you will eventually become entitled under the Act will depend upon the reason for your ceasing to be an eligible employee.

This advice gave Mr Counsell fair warning that options were available to him.

30. Mr Counsell suggested that he made further enquiries in 1977 but that he did not receive responses. In light of his attention to detail as gathered from his correspondence and the documents, it surprises the Tribunal, if he did not receive responses, that he did not follow those up.

31. Turning to Guideline 2(iv), it cannot be said that Mr Counsell had no practical access to official sources of advice. He has demonstrated an ability to access information and to express a point of view with respect to that information. He remained in contact with the Department of Transport after joining the Tasmanian Transport Commission. As the Tribunal did not have the form S2A before it, it makes no finding with respect to Guideline 2(v). Turning to Guideline 2(vi), although Mr Counsell contends that he used the refund of his contributions to make provision for his retirement that was not immediately apparent, the funds being placed in his bank account. It was not until three years later, on his evidence, that, together with other accumulated funds, he placed a deposit on units in Hobart which could be seen as making provision for his retirement. There is no evidence as to whether the funds in his bank account were put to other purposes.

32. Submissions were made by the respondent that, had Mr Counsell acted promptly in 1980, and immediately undertaken medical examination and joined the Tasmanian Retirement Benefits Fund that he would have not been able to seek a late election under subsection 141(2) of the Act. As his joining of the Tasmanian Retirement Benefits Fund was delayed the Tribunal will not deal with those submissions although the Tribunal finds that, had he acted promptly he would have rolled his refund contributions into the Tasmanian Retirement Benefits Fund.

33. The Tribunal finds, that in order to do justice between Mr Counsell, who seeks to make a late election, and the requirements of the fund, it is not desirable to treat his election dated 7 September 1993 as if it had been made within the time limit prescribed under subsection 137(1) of the Act and it is for these reasons that the decision under review will be affirmed.

I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision herein of

Mrs H.E. Hallowes, Senior Member

Mr J.T.C. Brassil, am, Member

Mr W.G. McLean, Member

signed: . . . . . . . . . . . . . . . . . . . . . . .

Personal Assistant

Date of Hearing: 17.11.00 and 20.11.00

Date of Decision: 13.12.00

Counsel for the Applicant: Mr A. Thomas

Solicitor for the Applicant: NIL

Solicitor for the Respondent: Mr B. Dube, Principal Solicitor with Australian

Government Solicitor