Flett and Repatriation Commission [2000] AATA 469 (9 June 2000)

Last Updated: 15 June 2000

DECISION AND REASONS FOR DECISION [2000] AATA 469

ADMINISTRATIVE APPEALS TRIBUNAL )

) No P92/68

VETERANS' APPEALS DIVISION )

Re JOHN ALEXANDER FLETT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member Dr KP Kennedy, Member

Date 9 June 2000

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN

PRESIDENTIAL MEMBER

CATCHWORDS

VETERANS' AFFAIRS - compensation for incapacity - defence-caused disease - aggravation - whether an active intervention is required - failure to provide appropriate clinical management

PROCEDURE - Section 39 of Administrative Appeals Tribunal Act 1975 - reasonableness of time to deliver submissions - Section 33 of Administrative Appeals Tribunal Act 1975 - whether repeated questions by a Member infers a bias - Section 23 Administrative Appeals Tribunal Act 1975 - reconstitution of Tribunal.

Veterans' Entitlements Act 1986 s 70

Administrative Appeals Tribunal Act 1975 ss 23, 33, 39

Johnson v The Commonwealth (1981-2) 150 CLR 331

REASONS FOR DECISION

9 June 2000 Deputy President DP Breen, Presidential Member Dr KP Kennedy, Member

1. This is a review of a decision by the Veterans' Review Board of 29 October 1991 which rejected the condition of carcinoid tumour of the appendix with metastasis as being defence-caused. This decision affirmed the decision of the Repatriation Commission dated 2 September 1988.

2. This matter was heard before a Tribunal constituted by myself as Presiding Member, Dr KP Kennedy and Associate Professor BA Smithurst, Members on 8, 10 and 11 February 1994 at Parramatta and on 10 and 11 February 1997 at Sydney. The lengthy delay in the resumption of the hearing was due to the ill health of the applicant and his wife.

3. The applicant was represented by Mr R Sherlock of the Legal Aid Commission of New South Wales and the respondent by Ms M Desses, Departmental Advocate on 8, 10 and 11 February 1994 and by Mr J Wallace of Counsel, instructed by Mr B Topperwein, Departmental Advocate on 10 and 11 February 1997.

4. Written submissions were provided by the respondent and received by facsimile on 6 May 1997. Mr Sherlock contacted the Tribunal on 12 June 1997 to advise that Mr Flett insisted on making his own submissions but that he was unwell and that it might be some time before he was able to reply. This was acceptable to the Tribunal. Several telephone directions hearings have been listed in this matter with the parties. On 28 June 1999 the parties were informed by me in the presence of Dr Kennedy that Professor BA Smithurst was not re-appointed as a Member of the Tribunal. The parties were advised that pursuant to Section 23 of the Administrative Appeals Tribunal Act 1975 the remaining Members of the Tribunal could hand down a decision with the consent of the parties. If that consent was not forthcoming then the matter would be re-heard by a differently constituted Tribunal.

5. On 9 July 1997, Mr Sherlock advised the Tribunal that Mr Flett consented to the remaining Members of the Tribunal handing down a decision in this matter. A direction was issued by the Tribunal that the applicant file and serve his submissions by 4 pm on 6 August 1999. To date only part of those submissions have been received despite several follow-up telephone calls to Mr Flett. Given this timeframe, it is the Tribunal's opinion that it has discharged its obligations under Section 39 of the Administrative Appeals Tribunal Act 1975.

"39. Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and in particular to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents."

6. Eleven months is a reasonable opportunity to make any final submissions. Accordingly, having satisfied this obligation, the Tribunal will hand down its decision in the matter on the material currently before it.

7. Various documents, including medical reports were taken into evidence and oral evidence was given by Mr Flett and a number of doctors. The evidence is summarised below.

Professor Blacket

8. Professor Ralph Blacket was called by the applicant to give evidence. He is a retired Professor of Medicine who is in consultant medical practice. On 14 May 1992 he interviewed and examined Mr Flett. He was asked to comment on several diseases of which carcinoid tumour was one and whether they could have been due to Army service. His written comments on carcinoid are only of concern here. Professor Blacket held that the chronicity of this condition in Mr Flett's case was obvious from the long history. He believed the tumour began in the latter part of the 1960s and that in the period of December 1972 to July 1975 Mr Flett's abdominal symptoms of intermittent colicky pain were due to the carcinoid tumour.

9. Professor Blacket maintains in his May report that diarrhoea occurred with the tumour but Mr Flett denies diarrhoea did occur and Professor Blacket later corrected his written opinion. He also stated that doctors would regard Mr Flett's symptoms as trivial because of their episodic nature and long intervals in between attacks. Professor Blacket stated very few doctors would consider the symptoms as due to carcinoid tumour - a very rare condition, and thus carry out barium studies and biochemical examinations of the urine for tumour markers. Mr Flett had occasional attacks in the subsequent 8 years and from 1983 to 1986 he developed more severe symptoms of abdominal pain and diarrhoea with flushing and his carcinoid was diagnosed.

10. In a further report dated 10 August 1993, Professor Blacket stresses the rareness of carcinoid tumour as mentioned above. He stated that Mr Flett's symptoms were consistent with a textbook description of the disease with diarrhoea occurring only in the 1980s and also flushing. He also believed that if the matter had been pursued "comprehensively as possible" in 1973, the diagnosis would most likely have been made. However, he has stated that the great majority of doctors would not have investigated Mr Flett with his colic occurring briefly and infrequently in an otherwise well man. Certainly, examination for urinary metabolites would not have been done in this uncommon tumour.

11. Professor Blacket's re-stated opinion is that carcinoid is a very rare tumour with a long natural history and this is consistent with comments on the tumour in standard textbooks on medicine and pathology. Professor Blacket stated it was possible that Mr Flett's symptoms of colic when he was seen in 1973 were due to an early carcinoid with minimal symptoms but most doctors would have undertaken no diagnostic procedures on the grounds that the symptoms were minor and it would be unreasonable to expect general practitioners to diagnose it. Professor Blacket held this definite opinion.

12. Professor Blacket stated that he always examined a patient after he took a history. In commenting on the notes made by Dr Jeffrey of the Joint Services Medical Centre he also stated that one attack of colic was not enough to diagnose malignant disease which is usually progressive. He went on to say that abdominal colic was quite common and was usually due to innocent causes such as food poisoning. He stated that some doctors and general practitioners in general practice only wrote down what was prescribed and Buscopan is commonly used to treat abdominal spasm.

13. Professor Blacket agreed with the statement of the Surgeon, Dr McKessar, that the extent to which a medical officer assesses symptoms was often in accord with the stress with which the patient relates the symptomatology. The nub of the matter is, how bad have you got to be before you start investigations. Medicare would have gone broke if everybody with abdominal pain had a CAT scan or other investigations. A doctor has to use his judgment. He would not have recommended a laparotomy. Now days a CAT scan will make the diagnosis in most cases.

14. Professor Blacket went on that carcinoid tumour tends to smoulder for a long time and it is speculative to suggest that a barium enema would have outlined the appendix. He stood by his opinion that the symptoms when Mr Flett was first seen were not serious. There is no indication in the notes that the medical officer at the Joint Services Medical Centre appreciated the symptoms as described by Mr Flett in his latest statement. If he had, he would have been a little more curious. Professor Blacket went on to say that colic of an intermittent nature over a matter of months could be explained by carcinoid which is a very rare tumour but cancer of the bowel is the first thing a doctor would think in such attacks of abdominal colic. In Mr Flett's case, however, the time between attacks was too long.

Dr Hession

15. The evidence of Dr GE Hession, a Specialist Physician in consultant medical practice in Sydney was given on 11 February 1994. He was called by the applicant. Dr Hession began his written report by recapitulating Mr Flett's history of infrequent severe colicky abdominal pain without accompanying symptoms in the early 1970s followed by a quiescent period in the mid to late 1970s and then the recurrence of abdominal pain with this time diarrhoea and flushing in the early 1980s and the diagnosis of appendiceal carcinoid in 1986. In his opinion, the colicky abdominal pains dating back to the 1970s were manifestations of the development and progress of carcinoid tumour of the appendix. He went on to discuss the differential diagnosis of bowel colic, pointing out that colic is a symptom not a disease. He also pointed out that a prudent examiner confronted with a patient complaining of one episode of colic would recommend a re-examination if symptoms occurred again.

16. In Dr Hession's view, in Mr Flett's case in the 1970s, barium studies might have uncovered a lesion in the right iliac fossa in which case a laparotomy would have been indicated. He went on to state that carcinoid tumours were not normally diagnosed pre-operatively. He advanced a theory that the quiescent period for symptoms from the early 1970s to the early 1980s were due to infiltration of the wall of the appendix by tumour and thus rendering it unable to contract and cause colicky abdominal pain.

17. Dr Hession also holds that even if tests were negative in the 1970s, a laparotomy would have been investigative or incurative. However, it is the Tribunal's view that it is unlikely that a physician or general practitioner would have recommended, or a surgeon carried out, the laparotomy which Dr Hession advocates in the absence of positive radiological tests or other definite tests. Laparotomy is an invasive procedure with its own inherent risks. It is very unlikely also that a blood count which Dr Hession mentions in his report could have detected anaemia in a case of carcinoid tumour as anaemia is not a feature of that particular growth unlike in the case of carcinoma of the bowel.

Dr Reid

18. Dr Robert Reid graduated MBBS (Syd) in 1952. He obtained two years hospital experience initially as a junior resident medical officer and later as a Surgical Registrar. He worked and studied in paediatric and general medicine in the United Kingdom for two years. He worked in general practice in Sydney between 1956 and 1985. Since 1985 he has worked in medico-legal practice.

19. Dr Robert Reid, in his history, recorded that he had interviewed Mr Flett on 16 November 1992.

20. At that time, Mr Flett did not recall any significant gastrointestinal symptoms prior to the early 1970s. He had then commenced to experience infrequent but recurrent attacks of abdominal colic which always lasted for seven to eight hours before resolving spontaneously. These attacks would occur about twice a year, at home after dinner. The attacks were never accompanied by diarrhoea.

21. Mr Flett further told Dr Reid that in 1973 he had attended the Joint Services Medical Centre for two purposes - firstly, to complain about a typical attack of stomach pains which he had had the previous evening and, secondly, to seek assistance in relation to sleeping difficulties. Dr Reid recorded that Mr Flett did not recall having been physically examined or being given any treatment in relation to the stomach complaint.

22. Mr Flett had subsequently reported to the Joint Services Medical Centre following the next attack. On that occasion Mr Flett did not recall having been physically examined and he was given some tablets for colic. When he subsequently experienced symptoms, he did not obtain relief from the tablets and he ceased taking the tablets. He did not again report to the Medical Centre following later attacks.

23. Mr Flett continued to experience the above symptoms until some time between 1975 and several years later.

24. After what Dr Reid described as an indeterminate number of years, the symptoms returned but at this time the symptoms were accompanied by frequent episodes of diarrhoea and loud obvious bowel sounds. The frequency of attacks increased and by about 1985 the attacks were occurring weekly and at any time of the day. By April 1986, the attacks were occurring randomly on a daily basis. At this time, Mr Flett was also experiencing facial flushing.

25. In April 1986, Mr Flett mentioned the symptoms to a Physician, Dr George Hession and was then referred to Dr Thorpe, a Gastro-enterologist and to a Surgeon, Dr McKessar. Dr McKessar performed a hemicolectomy in May 1986 and histological investigation had shown the disorder to have been a carcinoid tumour primarily within the appendix but spreading also to involve the small bowel.

26. Dr Robert Reid expressed the opinion that on the symptoms which Mr Flett had described as occurring in the 1970s it was most likely that the attacks of abdominal pain at that time were associated with the early onset of carcinoid tumour in the appendix. Dr Reid commented that such tumours have an unusually slow rate of growth compared with other malignant tumours. Dr Reid in his report subsequently stated that it was his belief that if the description of symptoms as given by Mr Flett were accurate, then it was more probable than not that the presence of the tumour in a very early stage in the appendix would have been demonstrated by distortion in the radiological image as revealed by a barium enema. In such circumstances, Dr Reid postulated that such a finding, taken in conjunction with the symptoms described by Mr Flett, would have culminated in an operation for appendectomy. This operation would have then led to the diagnosis with subsequent early cure of the carcinoid tumour.

27. An explanation had been sought from Dr Reid in relation to the reason for the cessation of colicky pains for several years prior to the recurrence of symptoms in 1983. Dr Reid postulated that when the tumour was within the lumen of the appendix with the lumen of the appendix being still largely patent, then recurrent colic would be a natural consequence. He further postulated that if that tumour then expanded so as to entirely fill the lumen of the appendix and involve the walls of the appendix, then there would be no colic. His symptoms in or about 1983 and continuing through until surgical intervention were, in his opinion, likely to have arisen at that time because of involvement of the ileum.

28. Dr Reid also stated that if the history of the symptoms given by Mr Flett of the time around 1973 are accepted, and if the actions of the Services Medical Officers to whom he reported his recurrent symptoms were as Mr Flett had described, then it was the belief of Dr Reid that the action taken by those Service Medical Officers was not satisfactory according to the accepted standards of professional competence of general practitioners at that time.

29. Dr Reid referred to the importance of taking a full history at the time and the requirement of a medical examination to have been undertaken but he stated that it was unlikely that the doctor at the time of that examination in the early 1970s would have been alerted to any sinister pathology merely on the basis of such examination. Dr Reid also listed a number of investigations which he believed should have been undertaken in view of the apparent nature of the history as described. These investigations included examination for occult blood, radiological studies such as barium meal and a follow through and barium enema. It was the opinion of Dr Reid that it would be more probable than not that if a carcinoid tumour had been present in the appendix then distortion or failure to fill in the appendix would have been demonstrated and an operation for appendicectomy would have been indicated. Dr Reid stated that if the tumour had not been demonstrated in the appendix and if there had been no involvement of the ileum at that time, as would be likely, then there would have been no action taken as a result of those radiological investigations.

30. In the opinion of Dr Reid if all the investigations enumerated had been negative, a competent general practitioner would have been likely to ask Mr Flett to return in a month or so and would repeat the test for occult blood if there had been recurrence of symptoms.

31. We note that Dr Reid had seen Mr Flett for the first time towards the end of 1992 - almost twenty years after Mr Flett had consulted Dr Jeffrey at the Joint Services Medical Centre. The history recorded by Dr Reid was the history given to him by Mr Flett in 1992.

32. In his written report, Dr Reid had expressed the opinion that the attacks of abdominal pain experienced by Mr Flett in the early 1970s had most likely been associated with the early onset of carcinoid tumour which had subsequently been removed in 1986. During the course of his oral evidence, however, Dr Reid stated that he could not be confident that the pain recorded by Mr Flett in the early 1970s had been related to the tumour but he thought that the tumour had very probably been present having regard to the natural history of the disease.

33. Again in his written report, Dr Reid had stated that it was more probable than not that barium studies would have revealed distortion or failure of the appendix to fill and that an operation for appendicectomy would have then been indicated. In his oral evidence, however, Dr Reid conceded that as no abnormality had been demonstrated in the 1986 studies in relation to the appendix, that therefore barium studies in 1973 would not have revealed disease of the appendix.

34. In his written report, Dr Reid had further stated that if all the radiological investigations which he had stated should have been done in 1973 had been negative, then in his opinion a competent general practitioner would have been likely to ask Mr Flett to return in a month and would have repeated tests for occult blood if there had been a recurrence of symptoms. Dr Reid believed it possible that occult blood would have been detected. In his oral evidence, however, Dr Reid agreed with the opinion of Dr McKessar that it was quite likely that the occult blood test would have been negative and that he did not think that any of the investigations earlier listed by him "would have shown anything".

35. When asked by Mr Sherlock whether a laparotomy would have been performed if all tests were negative, Dr Reid stated that he personally in 1973 would not have recommended a laparotomy as such but that an exploratory appendicectomy would be very likely. He further qualified that statement; however, by stating that a lot would be dependent on his assessment but that from the history of Mr Flett he would think that he would likely have discussed with a surgeon an appendicectomy. At that stage he indicated that his reason for looking to the appendix was that the appendix was the commonest cause of recurrent severe colicky pain.

36. In subsequent cross-examination, Dr Reid was referred to the report of Dr McKessar who had stated that in his experience appendicular colic was almost invariably associated with a proximal obstruction of the appendix and that at the operation there had been no proximal obstruction of the appendix. In his reply, Dr Reid stated that his experience in appendix operations could not be compared with that of Dr McKessar and that he could not argue with Dr McKessar on that at all. Later, Dr Reid told the Tribunal that he could not definitely say that the appendix provides the commonest cause for undiagnosed colicky paid.

37. In the course of his evidence, Dr Reid told Ms Desses that if the entries in the record of the Joint Service Medical Centre were the only evidence that Dr Reid had before him, that he would not pursue the course of investigations which he had earlier recommended. Dr Reid also agreed with a comment of Dr Thorpe that in relation to the extensive investigations which Dr Reid had earlier stated should have been undertaken in the 1970s, that one's opinion must be guided by circumstances which were present at that particular time. At this stage, Dr Reid also again agreed with the statement of Dr Thorpe that it was extremely unlikely that a carcinoid tumour, even if present in the early 1970s, would have caused a positive occult stool test and that it would be at best highly speculative to imagine that radiological imaging some thirteen years earlier would have assisted in the demonstration of a tumour of the appendix at that time.

38. The main substance of Dr Reid's written report had been that on the information available to him, due care had not been taken by Service Medical Officers in or around 1973. He further stated that had such care been taken then it was more probable than not that the investigative process would have led to an appendicectomy with an early cure and pathological diagnosis.

39. The Tribunal observes that in his initial written report, Dr Reid had expressed very firm views and had been particularly critical of the standard of professional competence of the Army Medical Officers who had seen Mr Flett in the early 1970s. It would seem that his criticism had been based, in particular, on the failure of the Service Medical Officers to undertake a series of investigations following the consultation in 1973. In his written report, Dr Reid had confidently stated that a proper investigation of the 1970 symptoms would, in his opinion, have most probably led to an appendicectomy and diagnosis and removal of a carcinoid tumour at that time. In cross-examination, however, Dr Reid had agreed that all the investigations recommended by him would most likely have proved to be negative.

40. Nevertheless, he appeared to be under the impression that for some reason or other an appendicectomy would still have been performed in spite of negative results and in spite of the fact that he agreed that there were no specific symptoms relating to the appendix at that time. Overall, Dr Reid was rather hesitant with many of his answers and his answers also revealed some degree of inconsistency in the opinions expressed at various times during the course of the evidence.

Dr McKessar

41. Dr McKessar listed his qualifications and experiences. He is a trained General Surgeon who graduated in 1954. He had been a resident medical officer for three years at Sydney Hospital and for two years at the Repatriation General Hospital, Concord, after which he obtained his primary fellowship of the Royal Australian College of Surgeons. He proceeded overseas in 1960 where he obtained his English and Edinburgh fellowship. He worked in the Charing Cross group of hospitals before coming back to Australia where he was appointed Senior Surgical Registrar at Sydney Hospital initially and later he was appointed as a Visiting Medical Officer at Sydney Hospital and Hornsby Hospital. His current appointment is at Hornsby Hospital and the Sydney Adventist Hospital.

42. Dr McKessar indicated that he had had a good deal of experience of carcinoid tumours with metastases and of the carcinoid syndrome. When at Sydney Hospital, he had reviewed small bowel tumours at that hospital and had presented his findings at a Surgical Meeting of the College of Surgeons.

43. Dr McKessar stated that he had been asked to see Mr Flett by Dr Max Thorpe in April 1986 and he had last seen Mr Flett in May 1989 for clinical review at which stage he stated Mr Flett to be in excellent health and that both Dr Thorpe and Dr McKessar felt that the prognosis for Mr Flett would be excellent.

44. Dr McKessar referred to the operation which he had conducted on 2 May 1986 at which he had found Mr Flett to have an extensive malignant carcinoid tumour which the pathologist indicated had arisen from the appendix and which had unfortunately caused intense matting together of the terminal ileum. No secondaries were present within the liver.

45. Dr McKessar recorded that the history given to him by Mr Flett had related to symptoms for the best part of ten years and that those symptoms had been progressive and had included colicky abdominal pain, diarrhoea, abdominal distension and audible borborygmi. The symptoms had become progressively worse during the previous few years. On clinical examination a palpable mass was noted in the right iliac fossa and investigations, in his opinion, really only confirmed the clinical diagnosis of a form of malignancy probably involving either the caecum or terminal ileum.

46. In the referral letter, Dr McKessar had been asked to provide an opinion as to whether investigations undertaken by the Joint Services Medical Centre in response to Mr Flett's presentation were in accordance with the accepted standards of practice undertaken in response to such a presentation at that time. In response to this question Dr McKessar commented that the extent to which a medical officer assesses symptoms is often in accord with the stress which the patient relates the symptomatology and he further stated that at the time of making his report he did not have any evidence in relation to that consultation. He did note, however, the reference in Dr Reid's report to the fact that the patient when presenting had complained of an attack of stomach pain the preceding evening and that he had also wished to seek medication for sleeping difficulties. Dr McKessar further commented that perhaps Mr Flett's presentation of his symptoms had to be seen in the light of the fact that although he had highly significant symptoms at the final presentation in 1986, he had not sought medical attention for some years prior to 1986.

47. It was the belief of Dr McKessar that the failure to investigate Mr Flett's symptoms in the 1970s could well have been understandable. In relation to Dr Reid's suggestions that extensive investigation should have been undertaken at that time, Dr McKessar stated that in his experience investigations which would have been performed then, could well have missed early disease and indeed can sometimes miss late disease in the small bowel. Dr McKessar further stated that small bowel malignancy is an extremely difficult malignancy to diagnose and that even if the patient had been given a barium enema it would have been highly unlikely that the appendix would have filled with dye. He further commented that a barium enema is not a good investigation to exclude appendiceal disease.

48. Dr McKessar did not believe that it would have been accepted medical practice to perform an exploratory laparotomy at the time of Mr Flett's initial presentation in 1973. He noted that exploratory laparotomy in the 1970s would have been conducted as a last line of resort after a patient had been investigated fully and when there was a strong clinical suspicion that something was being missed on the investigations and/or the clinical assessment and presentation to that point.

49. Dr McKessar recorded that it was just conceivable that if Mr Flett had presented himself in an acute attack in the 1970s that a plain film of the abdomen may have suggested a small bowel obstructive pattern but because the history seemed to suggest that Mr Flett had presented himself after the attacks had passed then Dr McKessar did not believe that even that examination would have necessarily been contributory.

50. In relation to the hypothesis put forward by Dr Reid to explain the number of years during which Mr Flett was free of symptoms, Dr McKessar commented that the reconstruction proposed by Dr Reid was in his opinion highly speculative and he noted that the proximal portion of the appendix of Mr Flett was not involved and in the experience of Dr McKessar colic arising in the appendix is almost invariably associated with proximal obstruction of that organ. In spite of the pathologist's report, Dr McKessar also stated that he still had reservations about where the malignant carcinoid had arisen in Mr Flett, when he had regard to his operative findings and the frequency with which malignant carcinoid arises from the small bowel rather than the appendix.

51. In summary, Dr McKessar commented that he did not believe one could speculate really as to why Mr Flett had had such a lengthy asymptomatic period other than to suggest that perhaps the early symptoms in the 1970s had not been those of a malignant carcinoid tumour at all.

52. It is the Tribunal's view that Dr McKessar was an impressive witness with a good knowledge of his subject and he gave his evidence in a very positive and confident manner. Of all the medical witnesses only Dr McKessar had had significant personal experience in the diagnosis and management of carcinoid tumours. We note that Dr McKessar had stated that Dr Reid's suggestions that extensive investigations should have been undertaken in the 1970s was an easy point to make in retrospect. We note also his opinion that barium studies, including barium enema and barium meal with follow through, were not likely to have revealed pathology in the early 1970s. Unlike Dr Reid, Dr McKessar considered the pain described by Mr Flett as being a mid-gut pain which could have been coming from the small bowel from the right side of the colon. Dr Reid had stated that the pain was most likely to be of appendiceal origin. Dr Reid had placed considered focus on the fact that the nature of the pain may well have led to an appendicectomy.

53. On the subject of laparotomy, Dr McKessar again differed from Dr Reid in that he did not believe it would have been accepted medical practice to perform an exploratory laparotomy at the time of Mr Flett's initial presentation in 1973. Dr McKessar had emphasised that an exploratory laparotomy in the 1970s would have been conducted as a last line of resort after a patient had been investigated fully and when there was strong clinical suspicion that something was being missed on investigations. Dr McKessar did not disagree that laparotomy would be an option if a person gave a history of four severe attacks of colicky pain over a two-year period. However, in that situation he did not regard a laparotomy as absolutely necessary and he stated that in such circumstances once would have to take into consideration what the patient wanted and what the patient was saying.

54. Dr McKessar emphasised that he did not know what interchange had taken place between Mr Flett and the doctor at the Joint Services Medical Centre and that it was vital to know such information. On the basis of the written statement of the doctor at the Joint Services Medical Centre, Dr McKessar could not say that there was a necessity to proceed with the investigations. If the history had been one of four severe episodes of colic over a period of two years, then Dr McKessar would have thought there would have been a very good case to be made for proceedings to investigation.

55. Another aspect on which Dr McKessar differed from some of the other medical witnesses was that in his opinion he was unable to say that Mr Flett had necessarily had a carcinoid in 1973 because Dr McKessar could not understand why Mr Flett had been without symptoms between 1975 and 1983.

56. Dr McKessar provided the Tribunal with a further report dated 10 January 1997. In this report he stated that "it is most likely that the tumour originated approximately ten years earlier to my operation, but naturally I cannot rule out that the tumour may have been present prior to this."

Dr Thorpe

57. Dr Thorpe graduated MMBS, University of Sydney. His additional qualifications include FRACP and MD (University of New South Wales). In his report Dr Thorpe indicated that he had been in private practice as a Gastro-enterologist since 1967. He has an appointment as a Visiting Medical at Prince Henry/Prince of Wales Hospitals and for five years in the late 70s/early 80s he had attended Concord Repatriation Hospital as a Gastro-enterologist.

58. Dr Thorpe advised that he had seen Mr Flett in relation to his abdominal condition initially in April 1986 and that subsequently he had referred him to Dr McKessar who had performed surgery on Mr Flett on 2 May 1986. Dr Thorpe had subsequently seen Mr Flett on 2 June 1986 and on 16 June 1986.

59. The history taken by Dr Thorpe was that in the 1970s Mr Flett had experienced episodes of abdominal pain with an apparent quiescent period between the latter 1970s and 1983. The presenting symptoms had been present for about three years, that is, during the period 1983 to 1986. There were no additional features listed in Dr Thorpe's history that have not already been recorded.

60. In reply to the request for an opinion as to whether investigations undertaken by the Joint Services Medical Centre in response to Mr Flett's presentation were in accordance with accepted standards of practice undertaken in response to such a presentation at that time, Dr Thorpe advised that he was not in a position to make a meaningful comment as he did not have a history of the particular period of events when Mr Flett had been seen around 1973 by Services Medical Officers.

61. In response to the report provided by Dr Reid, Dr Thorpe considered it extremely unlikely that a carcinoid tumour, even if present in the early 1970s, would have caused a positive occult stool test. He further stated that in his opinion it would be at best highly speculative to imagine that radiological imaging some thirteen years prior to surgery would have assisted in the demonstration of the tumour of the appendix at that time.

62. Dr Thorpe stated that surgical intervention would depend entirely on the clinical situation at the time. He mentioned that carcinoid is usually diagnosed fortuitously at the time of appendicectomy and that it must remain a matter of conjecture if laparotomy performed in 1973 would have resulted in removal of the appendix and, if so, whether the appendix would have in fact contained carcinoid at that time. The question as to whether Mr Flett would have been referred to a gastro-enterologist, physician or surgeon in 1973 would once again have depended entirely upon the clinical circumstances.

63. Dr Thorpe's opinion also differed from Dr Reid in a number of aspects and the evidence of Dr Thorpe was in general in agreement with that given by Dr McKessar. Dr McKessar, for example, had made the point that the extent to which a medical officer assesses symptoms is often in accord with the stress in which the patient relates the symptomatology. Dr Thorpe offered the view that one's opinion must be guided by the circumstances that were presented at that particular time.

64. In assessing the evidence of Dr Thorpe, we note that he is a Specialist Physician and a Specialist Gastro-enterologist. Dr Thorpe has been a Gastro-enterologist for a period of twenty-seven years. Dr Thorpe did not agree with the opinion expressed by Dr Reid in relation to the occult blood test and stated that it was extremely unlikely that a carcinoid tumour, even if present in the 1970s, would have caused a positive occult blood test. The opinion of Dr Thorpe that it would be at best highly speculative to imagine that radiological imaging in 1973 would have assisted in the demonstration of a tumour of the appendix at that time was also consistent with the evidence given by Dr McKessar.

65. Dr Thorpe in his evidence indicated that it remained a matter of conjecture whether the appendix in 1973 did in fact contain carcinoid at that time and he stated that surgical intervention would have depended entirely on the clinical situation then existing. This opinion was also in accord with that given by Dr McKessar. Dr Thorpe, like Dr McKessar, had also been reluctant to express an opinion on whether the management of Mr Flett at the time of his visit to the Joint Services Medical Centre had been in accordance with accepted standards at that time as neither Dr Thorpe nor Dr McKessar had been aware of the exact facts associated with that visit. He stated that it must remain a matter of conjecture if a laparotomy performed in 1973 would have resulted in removal of the appendix and whether the appendix at that time did in fact contain carcinoid.

Dr Danieletto

66. Dr Suzanne Danieletto holds a Bachelor of Science, Medicine and Surgery, she was a Resident at the Royal North Shore Hospital in 1981, the registrar of Haematology at Concord Hospital in 1982 and the registrar in Anatomical Pathology at the Concord Hospital from 1983 to 1985. She became Senior Registrar of Anatomical Pathology at the Hornsby Ku-Ring-Gai Hospital in 1986 and a fellow of the Royal College of Pathologists of Australia. Since that time Dr Danieletto has worked as a Specialist Anatomical Pathologist for both the Hornsby Ku-Ring-Gai Hospital and the Sydney Adventist Hospital.

67. Dr Danieletto undertook the microscopy examination of Mr Flett's appendix and bowel in 1986. She stated that the most obvious thing at the time of the examination was a large tumour mass which wound around the small bowel and in the appendix. Upon further examination it was found that the tumour was in the appendix, but that it had begun to spread and had wound around the small bowel. The tumour was in all appearances a classic example of the type of tumour you would expect to have in the appendix, except for the fact that this was extremely large.

68. Dr Danieletto said in her experience carcinoid tumours sometimes turn up in the appendix and they're incidental findings or there may be a number of small tumours; they tend to present in a number of different ways.

69. At page 11 of the transcript she stated: "I mean I feel there is no doubt that it was in the appendix, but it had obviously macroscopically malignanted. It had gone through the wall of the appendix, caused this adherence of the small bowel and involved a lymph node. So that part of it, its malignant nature was unusual because if you're going to say which are more likely to be malignant, you'd be saying the ones in the terminal ileum, that's all."

70. When questioned further she was quite adamant that the origin of the tumour was in the appendix. She did recognise that Dr McKessar had formed the opinion that the original site was the small bowel. This was the view she first held when she received the specimen, but upon dissecting it, she found that the original site was obviously the appendix and that other areas had merely been affected due to the tumour's growth.

71. When asked her opinion of the length of time it would have taken for a tumour such as this to develop, Dr Danieletto was of the opinion that the tumour had been in existence for 10 years or more.

72. To conclude the medical evidence, the Tribunal received into evidence a letter of Dr Goulston dated 7 February 1997. This reported that at that stage two metastases had developed in the liver. Thus the surgery in 1986 had not been entirely successful, as hoped by Dr McKessar and Dr Thorpe, but that the cancer had moved into a secondary stage. Dr Jeffery attended the Tribunal during the early part of the hearing but was unable to give evidence due to medical reasons when the Tribunal reconvened in 1997. As such, the written evidence of Dr Jeffery is his only evidence before the Tribunal.

Mr Flett

73. In considering the evidence of Mr Flett due allowance must be made for the fact that he has been asked to recall events extending over a period in excess of twenty-one years. In the circumstances, it is understandable that his memory for many of those events will not be absolutely clear. Nevertheless, examination of the transcript will reveal that his recollection of his visits to the Joint Services Medical Centre in relation to the abdominal pain and in particular his consultation with Dr Jeffrey in February 1973, is much clearer than a number of the other medical consultations with which he has been involved. In addition, although in cross-examination Mr Sherlock had referred repeatedly to the fact that Mr Flett had had four episodes of similar pain prior to his visit to the Joint Services Medical Centre in February 1973, the earlier evidence of Mr Flett is less definite in that regard.

"Mr Sherlock: At the time when you attended the JSMC to see - for the consultation how long had you approximately do you think you had been experiencing the types of episodes of abdominal pain which you described just now to the Tribunal?---My estimate is, and again it's an estimate based on long recall, but I possibly would have had two to three and I think prefer three episodes before I actually went there the first time and I don't think that this recorded episode here was the first time. There was previous occasion when I went to the JSMC not that I think anything turns on that because it's related to her - it's referred to here. I think that answers your question, two or three times and possibly a year and a half, two years.

Is this two or three episodes before you saw Dr Jeffrey or two or three episodes before you first went?---My view would be that there was two or three episodes before I first went.

And how many more, do you think, then, between the first consultation and seeing Dr Jeffrey?---I don't know, I think probably just the one that I had that I went to see him, because I certainly had others after I had seen De Jeffrey because I took the pills he gave me, and if my estimate of six to eight is recollected then one has to add up and that is where they sort of fit into that figure."

74. In reply to a question from the Tribunal as to whether in February 1973 the prescription of Dr Jeffrey of valium tablets as well as buscopan was done in a context of what he had seen him about, the stomach pains, or was it simply a further prescription, an ongoing prescription for some other condition, he stated:

Mr Flett: At the time as I said a minute ago I was under stress and as you will see I was on valium and mandrax and I have said in one of my statements that I was reluctant to go to the doctor with this thing. I felt embarrassed to go along without symptoms frankly. I did not like the idea of being considered a malingerer and I didn't go to the Joint Services Medical Centre until I had occasion to want to renew my prescription of valium and I took that occasion to go along."

But later in evidence:

"Tribunal: This morning you told me that you were on the treatment for the stress condition, the valium and what-have-you and you were not particularly concerned about these spasmodic abdominal pain attacks, such in fact that you waited until you had to go back to the clinic to get further prescriptions of valium?---No, that's not so.

Not so?---No, no, the - I think that's misleading - I think the governing factor was that I'd had an attack the night before and because I went to the clinic I took the opportunity to get some more valium."

75. In relation to the consultation with Dr Jeffrey, Mr Flett stated that he was quite certain that he did not have a physical examination. He also stated that before the records of the Joint Services Medical Centre had been made available he thought that he could have said that he most certainly would have told Dr Jeffrey why he was there and he would have described his symptoms and told Dr Jeffrey the history of them.

"Mr Flett:....When the record has been discovered it then jogs one's memory and of course one can rely to some extent on the record and it seems quite clear that I did tell him about previous attacks and obviously I complained to him of severe abdominal spasmodic pain on that occasion.

.....

Mr Sherlock: What diagnosis did Dr Jeffrey give you of what these symptoms represented?---He didn't discuss diagnosis, nothing was said. He simple said: 'I'm giving you these pills for these symptoms', or words to that effect, 'and take them when you next have an attack'.

Did he offer any other treatment?---No.

And did he give you any advice on seeking a review if the condition recurred?---No."

76. In cross-examination, Mr Flett again made some assumptions based on his review of the records of the Joint Services Medical Centre.

"Ms Desses: Did Dr Jeffrey ask you about the symptoms?---I wasn't sure of that until I saw this but having seen the record that is there I'm quite satisfied that I would have told him all about my symptoms after all it's recorded there that I had severe colicky spasmodic abdominal pain and he recorded the details of a previous attack.

....

Did you give the same description to Dr Jeffrey?---I obviously can't remember in detail but I doubt if I would have given it as fully but I would have given that to him. There is one thing, had he asked me there can be no doubt that I would have explained to him - exactly to him what the - what the symptoms were.

Had he asked you - I am sorry, Mr Flett, did you not say earlier that he did ask you what your symptoms were?---I based that - when I initially commented on this, and this is in this opinion here, I didn't have the record - the clinical record. The clinical record modified my view. Given the clinical record I am quite sure that I gave him the symptoms."

77. In 1978, Mr Flett had gone to see Dr Quach but in cross-examination he admitted that until he had read the clinical records of Dr Quach he had had no recollection of having gone to see him with abdominal pain. That was in spite of the fact that he complained to Dr Quach that the pain had been present for a period of three weeks.

78. From transcript page 38, line 15, on 8 February 1994 - this statement would appear to be in conflict with his initial evidence.

"Ms Desses: Mr Flett, why did you actually go and see Dr Jeffrey if you were not actually suffering from pain at the time?---Because I had suffered - I had never suffered with anything like this before and - first of all, to qualify that, I have already given evidence that it took me several attacks before I did anything about it...".

79. The question certainly arises as to why Mr Flett did not seek medical attention at the time the pain was present if it were of the severity which he has described. This aspect was followed up further in cross-examination.

"Ms Desses: Mr Flett, if you were under so much pain that night before why did you not go and seek medical assistance?---It would never occur to me to go seeking medical assistance at that stage, I knew it was going to resolve."

80. Ms Desses then asked Mr Flett in cross-examination about the comment in his statement "I do not recollect being examined". In reply Mr Flett stated that that statement did not mean that he did not remember whether he had been examined:

"Mr Flett: ... The fact is that I was not examined was my view but I've already seen for example how out of the blue comes a clinical record by Dr Quach that I wouldn't of believed existed and I would've said, in relation that for example, I don't recollect having had any other medical appointments and this is caution but having seen all of the evidence I'm quite sure that I was not examined."

And later in evidence when referring to the consultation with Dr Jeffrey:

"Ms Desses: Can you remember what the doctor actually said to you during the visit?---No, that would be presumptuous of me to try and remember the actual words.

Okay. Can you remember words to the effect?---Well, he simply said I'm - all right I'll give you words to the effect. I think he prescribed the tablets and I had to go out to the pharmacy office to get them and he said I'm giving you these - I don't even remember that he said they were for colic but he said I'm giving you these and when you have an attack take these for your symptoms and I learned from the label on the little bottle that it was to be - it was for colic...

Can you remember the doctor asking you or telling you any other information?---No.

Did you ask any questions of the doctor?---No, I did not.

....

So you were saying 1973 you did not ask any questions of your doctor and you were quite happy to accept anything that your doctor said to you even though you had suffered so much pain on at least two occasions?---Yes."

Later, when asked if the doctor had recommended that he should return to see the doctor if he were to have any further symptoms, Mr Flett replied "most definitely not".

81. In later evidence when cross-examined by Ms Desses in relation to the history of earlier events given to different doctors, Mr Flett stated that he did not distinguish greatly between the late 1960s and the early 1970s in the context of something that happened twenty years before.

82. Ms Desses referred again to the consultation with Dr Quach in 1978 and she asked Mr Flett whether he remembered whether he had been examined or not by Dr Quach. He replied that it was possible that Dr Quach may have examined him but he did not remember. Again, he was not sure whether Dr Quach had obtained a history from him at the time nor did he remember whether Dr Quach had asked him to come back if he had any ongoing symptoms.

83. Ms Desses then asked Mr Flett whether he gave Dr McKessar a history of his symptoms in 1986 and Mr Flett replied that he did not know the extent of detail into which he had gone. Later, Mr Flett stated that he could not recall whether Dr McKessar had taken a history but he later corrected this and stated that he meant a family history and not a history of his symptoms. In relation to previous symptoms, Mr Flett stated that he thought that he had told Dr McKessar that he had previously had symptoms a long time before but he did not know if he had given Dr McKessar a time span.

84. When asked by Ms Desses in relation to the consultation with Dr Hession in April 1986 whether he had given Dr Hession a complete history of the other symptoms, Mr Flett again replied that he did not remember whether he gave Dr Hession detailed history but he had certainly told him that he had had problems going back to the 1960s.

85. In reply to questions from the Tribunal, Mr Flett stated that in relation to the episodes of pain in the early 1970s, he thought that the symptoms at the peak of the attack of pain became more intense after the first three episodes and he thought that it was after the first three episodes that he was rolling around the floor with pain. When asked about the severity of the episode which he described to Dr Jeffrey, Mr Flett stated that that episode had been severe enough and that he did not think that there was a great degree of difference between the episodes. It was brought to the attention of Mr Flett that on the occasion that he visited Dr Jeffrey in relation to the abdominal pain, the dosage of valium which he had been on for some time had in fact been increased.

86. Mr Flett told the Tribunal that his evidence was and remained that he had experienced two or possibly three attacks of pain before he first went to the doctor and in fact he thought himself the attack referred to by Dr Jeffrey may well have referred to his first visit to the Joint Services Medical Centre. He further stated that while he could not be sure, he thought that the period between attacks was not more than a year ever.

87. The Tribunal then asked Mr Flett how long after the episode in 1973 did he have the next episode of pain. He replied that he could not say but he would simply say that it would have followed the same pattern. He commented some time between six months and a year but he could not say definitely. He had, however, used the buscopan at the time of the next attack and although the buscopan had not had any effect whatsoever, he did not again report to the Joint Services Medical Centre in relation to the abdominal pain. At no time had he seen the doctor when the pain had actually been present and he stated that there did not appear to be anything wrong in his opinion with going to a doctor the next day, given that the symptoms had resolved and he could still describe the symptoms to the doctor. He also stated that he did not mention the abdominal pains at the time of his discharge in 1975 and he did not even know whether at that stage the attacks had ceased.

"Tribunal: You made comment earlier that when you saw Dr Jeffrey you regarded that as a second opinion?---Oh, it's tongue in cheek. I'd been twice then to the Joint Services Medical Centre. And in fact I have been asked why I didn't get a second opinion. Can I address that? I mean I was quite satisfied with what he said. I was a military officer in a military system and quite frankly in those days, me being me anyway, you don't go seeking second opinions. Now that might sound naive but you don't - and in any case there was no reason for me to seek a second opinion.

....

You were seen once or twice but you did not make any attempt to pursue the cause of that pain subsequent to those visits?---It did concern me at the time it happened but remember it was conditioned by the fact that I was led to believe that it was something that happened casually and it might have happened as a result of something I'd eaten - and of course it did resolve, the peak pain I knew was going to - and it always did go. And it went in a very short period of time. Had it not resolved, there's no question that I would have been seeking attention for it."

88. In summary, the transcript indicates some variation in the apparent severity of the pain. On the basis of the statements made at various times in the evidence by Mr Flett we cannot accept that he would not have sought further advice if the pain had been of such consistent severity and in fact when questioned by the Tribunal he had stated that the first three episodes of pain were in fact less severe than the pain which followed. Though again Mr Flett is very definite about what was done and what was not done at the time of his visit to the Joint Services Medical Centre, he is far more vague in relation to information which passed between him and other doctors much more recently. Although he is quite definite that Dr Jeffrey had not examined him, he bases that belief on his recollections following examination of the medical record. At the same time, he does not recall whether Dr Quach had in fact examined him or not, or even that he had been seen by Dr Quach in relation to abdominal pain. It should be noted that the consultation with Dr Quach occurred five years after the consultation with Dr Jeffrey at the Joint Services Medical Centre.

89. Even allowing for the conflict in evidence between that given by Mr Flett and the written report of Dr Jeffrey, the word "think" figures very prominently in the evidence provided by Mr Flett and many of his statements are therefore less definite than one might have expected. Against this is the fact that the only written evidence in relation to those events does appear in the records of the Joint Services Medical Centre, we do not believe that the evidence of Mr Flett is sufficiently positive to determine that the records of the Joint Services Medical Centre are inaccurate. It must, of course, be acknowledged that the records of the Joint Services Medical Centre are inadequate to the extent that Dr Jeffrey has not recorded the results of any examination that might or might not have been performed at the time of the February 1973 consultation.

90. On the other hand, no medical evidence has been provided to indicate that physical examination as far back as 1973 would have enabled a diagnosis of carcinoid of the appendix to have been made or would have provided information of sufficient significance to warrant a laparotomy. It is clear from the evidence that short of a laparotomy, no diagnosis of carcinoid of the appendix could have been made in 1973 and, of course, it remains extremely doubtful if even a laparotomy would have established a diagnosis of carcinoid of the appendix at that time.

91. The legislation in relation to this claim is Section 70 of the Veterans Entitlements Act 1986 and is as follows:

"70. (1) Where:

(a) the death of a member of the Forces or member of a Peacekeeping Force was defence caused; or

(b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;

the Commonwealth is, subject to this Act, liable to pay:

(c) in the case of the death of the member - pension by way of compensation to the dependants of the member; or

(d) in the case of the incapacity of the member - pension by way of compensation to the member;

in accordance with this Act.

.....

(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, and injury suffered by such a member shall be taken to be a defence-caused disease if:

....

(d) the injury or disease from which the member died, or has become incapacitated:

(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or the last period, of the defence service or peacekeeping service of the member, but not during such a period of service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease...."

92. The applicant has eligible service between 7 December 1972 to 1 July 1975. His other service is not eligible service for the purposes of this act. In order for this to be a war caused disease it would have to satisfy subsection 70(5)(d)(i). The applicant submits that the failure to diagnose the tumour and treat it appropriately constitutes an aggravation of the disease, namely the tumour.

93. The High Court case of Johnston v The Commonwealth (1981-2) 150 CLR 331 is the leading authority on the construction of this term. This case also considered a failure to diagnose and treat a Commonwealth employee's cancer. Gibbs CJ, Mason J (as he then was) and Wilson J observed at 339:

"If the cancer had been detected in 1970, treatment could have been given which would have been effective in slowing down, if not entirely stopping, the 'natural and fatal course' of the disease. The proper projection of the disease, if detected in 1970, as on the finding of the tribunal it should have been, was no longer a disease 'taking its natural and fatal course, unimpeded by timely treatment', but a disease capable of effective medical management. If that be chosen as the starting point for the consideration of the question of aggravation, it becomes clear that the failure to diagnose and treat the cancer resulted in a worsening or aggravation of the condition when compared with the course which, given timely treatment, it should have taken."

94. It is the Tribunal's view that this is the correct interpretation of subsection 70(5)(d) of the Veterans' Entitlements Act 1986. As the High Court stated in the above decision at 338, the alternative interpretation requiring an active intervention applies more readily when the transient verb, aggravate, is used, as compared to when the passive noun, aggravation, is used. The term aggravation is used in Section 29 of the Compensation Commonwealth Government Employees Act 1971, which was under consideration in Johnston's case (supra) and in subsection 70(5)(d), which is under consideration in this case.

95. Applying this to the facts of Mr Flett's case, the medical evidence all tends to suggest that a carcinoid tumour was in existence at least by 1976, and possibly earlier, although the actual year it began to develop cannot be ascertained with any great certainty. However, given the symptoms suffered by Mr Flett in 1973, the tumour may have been in existence at that time. However, the medical evidence is also very clear that the medical testing available at that time, would have been quite unlikely to have provided evidence of the tumour at such an early stage. Further, that even if such tests had been done and come back negative, further intrusive surgical operations would not have been carried out, particularly given the gap between the complaints of colic in an otherwise healthy man. As such, Mr Flett has failed on the balance of probabilities to prove that an aggravation has occurred, because although diagnosis and treatment at that stage may have slowed or even removed the cancer completely, the likelihood that such a diagnosis could have been made, even if the tests had been carried out, is minimal.

96. The question of actual bias on the part of Dr Kennedy and Professor Smithurst, Members of this Tribunal, was raised a number of times throughout the hearing. I made a ruling that no such bias existed and that there was no need for these members to absent themselves from this case, on 28 July 1994. Further objections were made on the issue of bias, against Dr Kennedy, when the hearing continued in 1997. The Tribunal Members, under Section 33 of the Administrative Appeals Tribunal Act 1975 are entitled to ask any questions they feel they need to ask in order to be fully informed of the case before them, subject to the usual right of objection by Counsel. The fact that a Tribunal Member re-asks a question already asked by one or other Counsel or that they ask more than one or two questions is not a ground for alleging bias. Tribunal Members need to be fully informed of the case before them and to be certain of the responses given by various witnesses, in order to give well considered decisions, and in a case with evidence as complex as this one it is in fact a necessity.

97. For the reasons set out above the Tribunal affirms the decision under review.

I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member and Dr KP Kennedy, Member

Signed: Emma Oettinger

Associate

Date/s of Hearing 8,10,11 February 1994,

10 and 11 February 1997

Date of Decision 9 June 2000

Solicitor for the Applicant Mr R Sherlock, Legal Aid Commission of New South Wales

Counsel for the Respondent Mr J Wallace - 10,11 February 1997

Solicitor for the Respondent Ms M Desses, Departmental Advocate - 8,10,11 February 1994