Leane and Repatriation Commission [2003] AATA 125 (7 February 2003)

Last Updated: 11 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 125

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2001/269

VETERANS' APPEALS DIVISION	)
	Re	John Aubrey Leane

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

Mr G A Mowbray

Date 7 February 2003

Place Canberra

Decision

The Tribunal affirms the decision under review of the Veterans' Review Board of 1 March 2001.

.................(signed)................

Member

CATCHWORDS

VETERANS - special rate - whether totally and permanently incapacitated - whether war-caused incapacity alone prevents from working - whether ceased work for reasons other than war-caused incapacity - whether genuinely seeking to engage in remunerative work

Veterans' Entitlement Act 1986 s 24

Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17

Forbes v Repatriation Commission (2000) 101 FCR 50; 171 ALR 131; 58 ALD 394; 31 AAR 381

Cavell v Repatriation Commission (1988) 9 AAR 534

Flentjar v Repatriation Commission (1997) 26 AAR 93; 48 ALD 1

Banovich v Repatriation Commission (1986) 69 ALR 395; 6 AAR 113

Magill v Repatriation Commission [2002] FCA 244

Repatriation Commission v Sheehy (1996) 39 ALD 286; 133 ALR 654

Re Sutton and Repatriation Commission [2001] AATA 119

Re Hornery and Repatriation Commission (1998) 28 AAR 193; 52 ALD 317

REASONS FOR DECISION

7 February 2003

Mr G A Mowbray

1. This is an application by Mr John Leane for review of a decision that he was entitled to 100% of the General Rate of disability pension but not to the special rate of pension under the Veterans' Entitlement Act 1986 (the Act). This was a decision by the Veterans' Review Board setting aside a decision of the Repatriation Commission.

2. This matter was heard on 11 March 2002. Mr Leane was represented by Mr Dino De Marchi of De Marchi and Associates. The Repatriation Commission was represented by Mr Stephen Modder, an advocate from the Department of Veterans' Affairs.

BACKGROUND

3. Mr Leane was born on 25 April 1936. He served in the Australian Army from 31 May 1954 until transferring to the Royal Australian Air Force in 1980. He was discharged from the RAAF on 20 July 1988. His service includes operational service as defined in the Act in Vietnam from 29 May 1965 to 7 November 1966. He also rendered defence service as defined in the Act from 7 December 1972 until his discharge. Mr Leane had brief periods of employment as a sales assistant and with the ACT Department of Education after his discharge. He then worked for ACT Electricity and Water (ACTEW) from 1989 until 1996.

4. On 18 November 1996 Mr Leane lodged an application for disability pension relating to several conditions. On 3 April 1997 he made an additional claim relating to osteoarthritis in both hips. On 30 July 1997 the Repatriation Commission accepted claims for "bilateral sensorineural hearing loss with tinnitus", "post traumatic stress disorder" and "osteoarthrosis of the right wrist". It refused claims for "osteoarthrosis of both hips" and "osteoarthrosis of the right thumb". A disability pension was granted at 40% of the General Rate.

5. Mr Leane then applied for review of this determination by the Veterans' Review Board. The application related to both the rejections of two of his claimed conditions and the assessment of the rate of pension. On 1 September 2000 the Board decided that osteoarthrosis of the right thumb was war-caused and remitted that matter to the Commission for assessment. As a result Mr Leane's pension was increased by the Commission to 60% of the General Rate. The appeal in respect of osteoarthrosis of both hips was withdrawn. This means that Mr Leane has four conditions accepted as war or defence-caused and one condition - osteoarthrosis of both hips - that has been found not to be war or defence-caused.

6. The Board adjourned the hearing of the appeal relating to the rate of assessment pending further investigation. On 1 March 2001 it set aside the original assessment and substituted its decision that Mr Leane was entitled to 100% of the General Rate.

7. In the course of its reasoning the Board found that Mr Leane was not entitled to the special rate of pension. For that reason the Tribunal received an application for review of the Board's decision on assessment on 27 March 2001.

ISSUES

8. The sole issue before the Tribunal is the correct level of assessment for Mr Leane's accepted conditions and in particular whether he is entitled to the special rate of disability pension.

9. It is worth emphasising that the acceptance or refusal of each condition is not before the Tribunal. There were times during the hearing when one or both parties appeared to be under the misapprehension that the existence of Mr Leane's post traumatic stress disorder (PTSD) was in issue and that as a result there was a need to revisit events in Vietnam in detail (see the Respondent's Facts and Contentions for an example of this). There is no application for review before the Tribunal dealing with the Commission's acceptance in 1997 that Mr Leane has PTSD and that it is war-caused. However the severity of the condition and the degree of impact it has on Mr Leane's functioning is relevant.

LEGISLATION

10. The following sections of the Act are relevant

"19 Determination of claims and applications

(1) Where a claim or application is submitted to the Commission in accordance with subsection 17(2), the Commission shall:

(a) consider all matters that, in the Commission's opinion, are relevant to the claim or application; and

(b) subject to this section, determine the claim as provided by subsection (3); and

...

(2) Without limiting the generality of paragraph (1)(a), the matters that the Commission may consider include:

(a) the evidence and documents that were submitted with the claim or application in accordance with subsection 17(3);

(b) any evidence subsequently submitted to the Commission in relation to the claim or application; and

(c) any evidence, documents or other material furnished to the Commission under section 32.

(3) The Commission shall determine a claim for a pension as follows:

(a) first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:

(i) the incapacity of a veteran from war-caused injury or war-caused disease, or both; or

...

(b) then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsections (5A), (5B), (5C) and (5D).

...

(5A) If:

(a) paragraph (3)(b) applies in respect of a claim; or

...

the Commission must assess the matters set out in subsection (5C).

(5B) The Commission must assess the matters set out in subsection (5C) in accordance with whichever of sections 22, 23, 24, 25, 27 and 30 are applicable in the particular case.

(5C) The matters that the Commission must assess are:

(a) the rate or rates at which the pension would have been payable from time to time during the assessment period; and

(b) subject to subsection (6), the rate at which the pension is payable.

(5D) After making an assessment under subsection (5C), the Commission must determine that pension is payable at the rate assessed.

(5E) Pension is payable from the date of effect of the determination made under:

(i) in the case of a claim--subsection (3); or

...

(5F) A determination under:

(a) subsection (3), in respect of a claim; or

...

takes effect from the date on which the determination is made or on such later or earlier date as is specified in the determination.

(6) Where the Commission has, pursuant to subsection (5C), assessed that the pension was payable at some time during the assessment period at the rate provided by section 23 or 24 then, subject to section 24A, the rate at which the pension is payable shall not be lower than the rate provided by whichever of those sections applied, or applied most recently, during the assessment period.

(9) In this section:

...

application day, in relation to a person who has made a claim or application or on whose behalf a claim or application has been made, means:

(a) the day on which the claim or application was received at an office of the Department in Australia; or

(b) if subsection 20(2) or 21(2) applies to the person--the day on which the claim or application referred to in paragraph 20(2)(a) or 21(2)(a) was so received.

assessment period, in relation to a claim or application relating to a pension, means the period starting on the application day and ending when the claim or application is determined.

claim means a claim made in accordance with section 14.

..."

"24 Special rate of pension

(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

(2) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

..."

"28 Capacity to undertake remunerative work

In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:

(a) the vocational, trade and professional skills, qualifications and experience of the veteran;

(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and

(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."

"120 Standard of proof

...

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

..."

EVIDENCE

11. The documentary evidence before the Tribunal consisted of the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents") labelled T1 to T24, Mr Leane's exhibits A1 to A4 and the Commission's exhibits R1 to R8.

12. Oral evidence was given by Mr Leane, his wife Mrs Hellyne Leane, Dr Edward Cole, a consultant psychiatrist, Dr William Stone, a consultant rehabilitation and occupational physician and Dr Glenn Rosendahl, Mr Leane's former treating general practitioner.

LAY EVIDENCE

Mr John Leane

13. In his oral evidence Mr Leane described several incidents during his service in Vietnam which he found distressing. The principal incident occurred within his first month of service when a grenade detonated about 50 metres away from him. He did not witness the actual detonation but saw the aftermath. He discovered that the grenade had been set off accidentally resulting in loss of life.

14. It was a couple of months after this incident that he began drinking. He would drink as much alcohol as was available. Theoretical limits were not enforced and he was able to obtain drink by travelling to American bases. When not required for duty he would drink 8 to 10 cans of beer in an evening. He did not suffer sleep problems because he would anaesthetise himself with alcohol in the form of beer and spirits.

15. On his return from Vietnam Mr Leane kept himself occupied and was determined not to let his experiences affect his working life. He arrived at work on time and did not take sick days.

16. Mr Leane stated that in 1996 he was drinking "quite a bit" during his lunchtime while working at ACTEW. He drank alone. He considered he was not meeting the standards he had set for himself. He had difficulty being nice to clients and colleagues. He suffered a communication breakdown with his immediate supervisor who was a person he knew well because they had served in the army together. He attributed the breakdown to his failure to meet his supervisor's requirements. This in turn was a result of his alcohol consumption. His supervisor was aware of his drinking.

17. Both his performance and his attitude were the cause of disputes. He was unable to interact reasonably with other staff. He avoided talking about or resolving the problems. He selected which jobs to perform and the timeframe to perform them in to suit himself rather than the organisation.

18. Mr Leane took a redundancy package worth about $14,000 at the end of August 1996. He had made the decision to request a redundancy because his poor relationship with his supervisor was affecting the office as a whole and was not going to improve. He did not know if other people took redundancies from ACTEW at around the same time. His redundancy was not part of a restructure.

19. He stated that his supervisor's requirements were reasonable and could have been met were it not for his drinking. He would have continued working at ACTEW if he had not been drinking. If his PTSD and alcohol problem were cured he would be able to work and would want to do so. He estimated that he had lost $40,000 a year as a result of ceasing work. He was currently on a superannuation pension.

20. Mr Leane confirmed in oral evidence his written statement (Exhibit A4) that the sole reason he left ACTEW was the conflict he experienced with his supervisor, other employees and clients. His statement at question 22 on his second application for disability pension - relating to osteoarthrosis of both hips - mentioning "extreme pain" and "limited mobility" (T15 page 99) was partly correct. This condition slowed him down but did not prevent him doing the work required. It made some tasks such as climbing ladders and rooves harder but he was still able to do what he set out to do. He took medication to keep working at his best physical pace.

21. He was instead slowed down by his poor mental pace and lack of sleep caused by anxiety. At question 21 of the same application Mr Leane had written he was not currently employed because of "ill health - stress and inability to cope with people and the work". On his first application for disability pension he answered question 22 by writing "due to stress I had to leave work I cannot cope" (T7 page 75).

22. He agreed that the description of complaints of back, groin and thigh pain by Dr Coyle in August 1996 (T12) was fair. He also agreed that he had had several accidents at ACTEW that had affected his back to some degree. The worst of these was when a chair collapsed under him in March 1995. He would not describe this as serious although it caused some pain. He did not accept a suggestion, based on a passage in a medical report by Dr Jeremy Hopkins in July 1997(Exhibit R8 at page 57), that his depression was a result of his back pain. The depression stemmed from his mental problems not his physical ones.

23. He agreed that he was disabled orthopaedically to a degree when he stopped working. He thought he had been referred to Dr Speldewinde for pain management while still at work. He saw Dr Coyle at about the same time as he ceased work, that is August 1996. His left hip was replaced in January 1997 and his right in January 1998. Since the second replacement operation he had been "pretty right" and did not currently have any hip or back problems. After rehabilitation including a gymnasium program he was able to do the same things as in the past. He no longer experienced numbness in his left thigh. A reference by Dr Coyle to an injury in about April 2000 (Exhibit R7 at page 78) was to his left shin when he slipped cleaning his fishpond.

24. Mr Leane had previously performed voluntary work for Legacy but not for the last 10 years. He had worked for the Australian Electoral Commission (AEC) in 1997 for a short period on a specific task only, asking questions to check the accuracy of the electoral roll, which he had found stressful. His back and hip did not affect this employment.

25. He worked with the AEC again in 2001 on the recount of the federal election. This was work he felt he could do regularly. However it had not been in fact regular and he was not required to stay for the entire workday.

26. He acknowledged that drinking was a significant part of military life. However at that time he would drink with colleagues. While at ACTEW he drank during lunchtime and alone. He did not mix with other trauma sufferers.

27. Mr Leane could recall each of his interviews with Drs Stone, Cole and Strum respectively. Dr Strum had not asked as many questions as Dr Cole about his Vietnam experiences and had placed more emphasis on his personal life.

28. Mr Leane made a written statement in support of his claim on 3 April 1997 (T10). In it he discussed the impact of PTSD as follows

"I have been critical of people at work complaining that they were working under very poor conditions. My reaction was to deliberately avoid there (sic) requirements, to slow things down. Eventually my supervisor started to threaten me with disciplinary action and I continued to perform badly and to drink to excess. I applied for many jobs but with no success. I reached the stage where I had no confidence in myself and considered that I was a failure.

...I am not able to discuss things with my family or other acquaintances. I become angry and cannot enter into a logical debate, rather I will avoid these situations and walk away or just ignore those around me.

Eventually I reached the stage where I could no longer tolerate the workplace and resigned. I try to work around the home but this has now become difficult as I have a fear of failure or of not being able to complete a job to my satisfaction. I get annoyed at small insignificant things and hurt others with my reactions."

29. In the statement Mr Leane also discussed the osteoarthritis of his hips. However he made no specific reference to the impact this had had on him other than to say his body was "reacting" to activities during his military service and that these activities must have contributed to the "accelerated deterioration" of his hips.

Mrs Hellyne Leane

30. Mrs Hellyne Leane, Mr Leane's wife, gave evidence that she had married her husband in 1992. She had observed that he found going to work very difficult and appeared very unhappy and distressed. He would be anxious at breakfast. He was irritable, quiet and moody. He would sleep in the evening but would be unable to sleep at night.

31. In her opinion his behaviour depended on the type of work he tried to do. He did not deal well with a lot of people. He might be able to work if it was a quiet position at a desk. When working at home he would lose concentration and motivation and had a fear of not doing well enough.

32. He had worked for the Australian Electoral Commission for a couple of weeks in 2001. She was unsure of his hours but thought they amounted to a normal working day. He had not made any complaints about this work.

33. She could recall her husband's orthopaedic conditions as described by Dr Coyle in August 1996 (T12). His condition had deteriorated very rapidly just before the first hip replacement operation to the point of being very disabled. This became most disabling after he had ceased work. She did not know what had caused this deterioration. At the time he stopped working he had a little trouble but was still able to climb ladders. His main complaint at that stage was what was happening at work rather than problems with his hip.

MEDICAL EVIDENCE

Dr Glenn Rosendahl

34. Dr Glenn Rosendahl was Mr Leane's treating medical practitioner for about 8 years. He no longer had access to his clinical notes as he had since moved interstate. He recalled that the first major problem Mr Leane consulted him on was back and hip pain. This was followed by problems with stress dating back to his war service. The two issues ran concurrently.

35. In retrospect it could be seen that Mr Leane's PTSD had been operative for a considerable time and affected his capacity severely both at work and at home. It was a cause of his drinking.

36. Mr Leane was unable to cope with his workplace circumstances and sought early retirement. Dr Rosendahl had explicitly discussed the reasons for retiring with Mr Leane and was involved in the making of this decision. The reason was personality conflict with his supervisor. Neither Mr Leane's hip or back condition would have prevented him from working. His accepted conditions alone would prevent him from working and there were no other factors preventing him. His PTSD and osteoarthrosis of the thumb were unlikely to improve.

37. Before his hip replacement operations Mr Leane was quite severely disabled by his hips. Any falls would be painful. If he had not had his hips replaced he would have eventually ended up in a wheelchair. After the operations his mobility was substantially improved. Any jarring could cause back pain but his hips were unlikely to be a problem in the future.

38. Dr Rosendahl recalled Mr Leane being placed on medication for depression but did not remember the specific treatment. The depression was not a result of his back problems. It had multiple causes.

Dr William Stone

39. Dr William Stone, a consultant rehabilitation and occupational physician, gave oral evidence supplementary to his written assessment of Mr Leane (Exhibit A2). His conclusions in that assessment were as follows

"Mr Leane has significant problems with post traumatic stress disorder. This has been the cause of most of the problems he has experienced with his employment, particularly at the hardware shop and with the ACT Electricity and Water Authority. The problems with the hardware store were more related to difficulties coping with the public, whereas his problems with the Authority were more with respect to coping with other staff, particularly his immediate superior. The one part time position he has held since leaving the Authority also led to difficulties, on this occasion being similar to those experienced in the hardware store. He found interacting with the public to be difficult.

Mr Leane left the Authority after a redundancy agreement was reached. It could be said Mr Leane would have been able to continue with employment if [he] had been able to obtain a position with others who were more understanding of this PTSD problems, and were prepared to accept these difficulties. Alternatively, it can reasonably be said that Mr Leane applied himself in a diligent manner trying to maintain employment for as long as possible. I am more inclined to the latter point of view.

...So far as his hip problems are concerned, I think it is interesting Dr Coyle basically determined Mr Leane had hip problems by virtue of his gait rather than because of complaint of hip pain. In any case Mr Leane's hips are of no consequence to him at the present time so far as employment in non-physically demanding roles is concerned. He has virtually no symptoms with respect to his hips now.

Overall, while it is not a clear cut situation, my opinion is Mr Leane's Accepted Disability of post traumatic stress disorder alone is the cause of him being unable to maintain employment, and that his post traumatic stress disorder problems are permanent."

40. In oral evidence Dr Stone confirmed he considered Mr Leane's PTSD to be the cause of him no longer working. His hips did not have a consequential effect on him at the time he ceased employment as his work was not physically demanding. Total hip replacement gave patients an excellent outcome. Mr Leane could now do virtually anything except heavy lifting and constant climbing or walking. Dr Stone did not feel that Mr Leane's low back pain was significant. It did not impact on his ability to work.

41. Mr Leane's PTSD caused him to have problems dealing with his superior or with the public. People with PTSD tended to avoid people and certain situations. They were less tolerant because of their hypervigilant or hyperaroused state. They would use alcohol to control their hyperarousal and the majority had alcohol problems worse than Mr Leane's. If Mr Leane was free of PTSD and his alcohol problems he would probably still be working. He was keen to continue working and to utilise his skills.

42. Dr Stone's understanding was that Mr Leane had left ACTEW because of significant difficulties with his superior. He worked in a small group of people, which exacerbated these problems. Dr Stone was not aware of the details of Mr Leane's physical problems as at 1996. His work records (Exhibit R8) had not been available at the time of assessment. Dr Stone was also not aware of the details of Mr Leane's promotions during his army and air force service.

43. Dr Stone acknowledged that diagnosis of the existence of PTSD was best left to a psychiatrist. However he was more qualified than a psychiatrist to assess the impact of the condition on a person's ability to work. In Mr Leane's case his accepted PTSD was severe enough to put him out of the work force.

Dr Edward Cole

44. Dr Cole, a consultant psychiatrist, also gave oral evidence supplementary to his written report (Exhibit A3) in which he concluded

"I note Mr Leane's post traumatic stress disorder has been recognised as due to war service. I further note that his nervous disorder led to his leaving his last two jobs, while he now believes, and probably correctly, that he would be unemployable in his trade or even in a supervisory capacity because of his lack of recent experience, his poor concentration and the difficulty he experiences in relating to other people. I further note that he is receiving psychiatric treatment, is taking an anti-depressant on a regular basis and recently became unduly irritable when he attempted to reduce the dose. Although he is doing a little voluntary work this is apparently not unduly demanding and amounts to only three hours a week.

When all factors are taken into consideration I doubt if he would be capable of remunerative employment and I believe that it was his post traumatic stress disorder that was responsible for his stopping work in 1996 when he did some part time work for the Australian Electoral Commission for a total of three weeks over the course of three months."

45. In Dr Cole's opinion Mr Leane's PTSD was responsible for a range of problems in his last job including anxiety, lack of motivation and difficulty relating to others. Excessive alcohol consumption was commonly associated with PTSD. Sufferers used alcohol in an attempt to overcome the disorder's symptoms. Depression was also a common accompaniment. He was aware that Dr White had prescribed Mr Leane an antidepressant. Back injuries could also lead to depression but Dr Cole was not aware of any evidence that Mr Leane was incapacitated by a back injury.

46. He had not asked specific questions to lead to a diagnosis of PTSD because it was already accepted that Mr Leane suffered from the disorder. He displayed anxiety, was indecisive and diffident and lacked confidence and drive. His past military service and effort to work for several years afterward showed his willingness to work. Nothing had been put to Dr Cole which changed his view that PTSD had been the cause of Mr Leane ceasing work.

Dr W J Coyle

47. Dr Coyle saw Mr Leane on referral on 15 August 1996 (T12 pages 88-9). He asked Mr Leane to his list his complaints in order of importance

"1. Central low back and left groin pain which occurs if he sits, stands or even lies for more than 30 minutes; he has to change his position and keep moving but once he starts to move the same pain or perhaps another pain discussed below forces him to stop.

2. Activity limitation by pain which he feels in his left groin and medial thigh, limiting walking to 30 minutes at the most before he has to rest.

3. Groin and thigh pain which occurs with minor jarring incidents involving the left lower limb as might occur when walking on uneven ground.

4. Mr Leane says that his symptoms have been severe and getting worse for more than two years. He still sleeps well although with the help of analgesics but is unable to lie on his left side because of left groin and trochanteric pain."

48. Dr Coyle identified "two significant symptomatic orthopaedic problems". One was related to degenerative problems in Mr Leane's lumbo-sacral spine and the other to his osteoarthritic left hip. Dr Coyle tentatively concluded that the left hip was the more important problem.

49. On 12 September 1996 Dr Coyle reported that Mr Leane now agreed the hip problem was the more important (T12 page 92). Dr Coyle advised Mr Leane that

"[H]e is almost certainly headed for total hip replacement... He is going to soldier on but will get back to me when and if he thinks surgical treatment might be indicated."

50. On 14 January 1997 Dr Coyle reported he had replaced Mr Leane's left hip the previous day (T12 page 91). Admission for this operation had been arranged following a telephone message from Dr Rosendahl the previous week. The outcome of the procedure is recorded as follows

"...Mr Leane's hip was stable at the end of the procedure.

Mr Leane will be mobilised fully weight bearing on his new hip immediately and will be discharged from hospital when his wound is satisfactory and he is coping independently, hopefully well within ten days."

51. Dr Coyle also noted that Mr Leane had previously been booked for surgery on his hand in a week's time. This had now been postponed.

52. Dr Coyle reviewed Mr Leane's progress on 6 March 1997 (T12 page 90). He was now walking with a minimal limp and without a walking stick. The left lower limb had been lengthened by about one centimetre, which would be corrected "when Mr Leane inevitably has to face replacement of his right hip."

Dr David McGrath

53. Dr McGrath, an occupational and musculoskeletal physician, prepared several reports in relation to Mr Leane. The first was prepared after an interview and examination (Exhibit R3). Dr McGrath concluded

"[H]is decision to leave employment was likely to be influenced by several factors, including the poor state of his physical health as evidenced by bi-lateral hip replacements soon after. Although he gives the reason of supervisor conflict it is doubtful that this would be the only reason. It is also not clear that any conflict with his ACTEW supervisor is the direct result of posttraumatic stress. It is not my position to give a specialist comment on the consequences of this disorder, however I am struck by his overall successful career, reaching a high officer status, in both the Army and Air Force in addition to a successful ACTEW career prior to the conflict with his supervisor. If he were dysfunctional in the employment domain as a result of posttraumatic stress, it is difficult to understand why it manifested at age sixty.

His work record indicates that he is competent and successful despite posttraumatic stress disorder. In contrast to this observation it can also be inferred that the necessity for bi-lateral hip replacement implies a considerable amount of pain and disability. A successful operation does not change the implication that he was disabled around the time of leaving work in 1996. In addition to his hip disability he had disability arising from the cervical and lumbar spine, which continue to give him trouble."

54. Dr McGrath provided a supplementary report (Exhibit R4) after reviewing Dr Rosendahl's clinical notes (Exhibit R7). He found multiple entries in 1995 and 1996 to pain from the hip, groin, lower back and knee. The word "stress" was printed as a side entry on several occasions. Dr McGrath commented

"As far as I can interpret his writing, his entries only pertain to musculoskeletal problems with no mention of psychological stress. One interpretation of this could be that he was stressed by musculoskeletal pain."

55. In passing I note that there are some references in Dr Rosendahl's notes suggesting psychological stress. For example, an entry on 15 July 1996 simply says "A lot of stress at work." 9 August 1996 records a decision to leave ACTEW - "Remains under stress, and ... he ... dealt with oppressivity in his workplace."

56. Dr McGrath completed another report (Exhibit R5) after viewing documentation from an ACTEW file (Exhibit R8). He concluded the file confirmed Mr Leane had significant musculoskeletal problems, mostly as a result of two incidents in 1993 and 1995. The file did not contain any significant discussion of occupational stress.

57. Again I note that given the ACTEW file relates to compensation claims for physical injuries the absence of much discussion of psychological issues is not surprising.

Dr Karl Koller

58. Dr Karl Koller completed a psychiatric report on Mr Leane on 3 February 1997 (T9). He diagnosed chronic PTSD and said

"In recent years his work performance deteriorated and he left a year or more ago. He was regarded as incompetent, not coping and I suspect angry irritability also played a major role. He is now unemployable.

He is inclined to assuage the symptomatology of PTSD with daily excess alcohol.

His symptoms of PTSD are severe and frequent and overt. There are difficulties in everyday functioning that includes the ultimate loss of job. He receives support and medication from his GP. Specialist psychiatric treatment is indicated."

59. By June 1998 Dr Koller was treating Mr Leane (T22 page 139). On 25 September 1998 he reported (T22 page 141)

"He continued to show symptoms of PTSD. He is irritable, gets depressed, drinks a fair bit. He has ruminations and flashbacks of tunnels. His motivation is generally poor.

He does some visits to a hospital in Canberra, voluntary work, he assists an Anglican Minister. In actual fact these visits are stressful and it is only his obsessional perfectionistic drive that allows him to continue. Otherwise he remains something of a recluse at home."

Dr Brian White

60. On 27 January 2000 Dr Brian White completed a report after assessing Mr Leane (T22 pages 142-144). He diagnosed PTSD and associated Major Depressive Disorder and Alcohol Abuse. He recorded that after leaving the RAAF

"[Mr Leane] then worked for one year in a hardware store and found he didn't cope well with daily contact with customers. He joined the public service and moved to ACTEW for seven years. Towards the end of this he had persisting problems; he was informed he was incompetent and not doing the job he was paid for. His concentration was reduced. He took the opportunity of a voluntary redundancy to leave and has not worked since then.

...

His history indicates that he had clear difficulties carrying out his work indicating problems with concentration and attention related to his PTSD. I consider that due to his PTSD he is permanently unfit for any full or part time employment for more than 8 hours a week, for which he is suited by education training or experience. Due to his poor concentration he is unfit for any significant retraining."

Dr John Strum

61. Dr John Strum, a consultant psychiatrist, assessed Mr Leane on 30 November 2001 (Exhibit R2). He agreed with a diagnosis of PTSD but considered this to be secondary to Major Depression with alcoholism. It was this rather than PTSD that had made him and continued to make him unemployable. Mr Leane's main problem was

"[H]is personality structure which originates from childhood difficulties which has made him very vulnerable to criticism and sensitive to rejection. This has driven him to perform at a level which, given his educational background initially, was really quite surprising. The second diagnosis of significance is Major Depression. I believe his alcoholism was secondary to the stress he was put under at work and more particularly to the Major Depressive symptoms which he suffered later. I believe that the symptoms of Post Traumatic Stress Disorder were subsidiary and only arose as a byproduct of his depressive illness."

62. In Dr Strum's view the issues arising from Mr Leane's Vietnam experiences were of rejection and betrayal, rather than death and destruction. Dr Strum said he

"[did] not believe that Mr Leane became unemployable because of Post Traumatic Stress Disorder. He became unemployable because he was possibly drinking more and because he developed a severe depressive illness. He developed some obsession traits and a driving ambition to make life more secure than he found it to be as a child. It is precisely people with this kind of personality, it is not a personality disorder but merely a personality structure, who disintegrate into a form of depression which is usually untreatable when their weaknesses are exposed and they are put into a situation of rejection when all their worst fears materialise."

Dr Jeremy Hopkins

63. The records from ACTEW (Exhibit R8) begin with a page marked "Compo file". Included in the documents is a report from Dr Jeremy Hopkins dated 31 July 1997 (pages 55 - 62). His assessment was conducted to review Mr Leane's ongoing entitlement to compensation in relation to injuries at work in 1993 and 1995. When describing Mr Leane's history Dr Hopkins wrote

"Progress Since Last Assessment

The patient states he had no time off work throughout 1996 but was criticised in the latter part of last year and early this year by his supervisor who said he wasn't doing his work properly. He was set tasks such as climbing onto roofs and up ladders which aggravated his back pain, leg pain and shoulder pain. He therefore took voluntary redundancy because he could not tolerate the situation any further. He was seen by a pain management clinic which he stated he found helpful and he also saw a psychologist.

Continuing Symptoms/Disabilities

Mr Leane tells me that he was ultimately referred to Dr Coyle, Orthopaedic Surgeon, who advised him that a good deal of his problem was associated with his hips which had early osteoarthritis.

He was advised to continue on with conservative management for some time but this failed to resolve his pain, particularly on the left side, and in January 1997 he successfully underwent a left total hip replacement by Dr Coyle.

At this present time the right hip is not as bad as the left one and surgery has not been looked at as yet.

The patient states he also had a further problem in May 1996 when he appears to have spontaneously snapped his long flexor tendon to his right thumb.

...

He has had further episodes in hospital in July 1997 most recently with a pleural effusion on the right side of his lung which had to be tapped...

As far as his low back is concerned this has become worse and he wishes to see a pain clinic again regarding this. Added to this he has become depressed which is understandable."

Dr Hopkins ultimately concluded that Mr Leane's lumbar spine condition continued to be aggravated by the previous work injuries. The osteoarthrosis of his hips was not related to his ACTEW employment.

CONSIDERATION OF ISSUES AND FINDINGS

64. In making any determination, decision or assessment in relation to the decision under review the Tribunal must decide the matter to its reasonable satisfaction (section 120(4) of the Act). This standard of proof equates to satisfaction on the balance of probabilities (Repatriation Commission v Smith (1987) 15 FCR 327 at 335; 74 ALR 537 at 547; 7 AAR 17 at 26).

65. Furthermore eligibility for the special rate of pension must be assessed throughout the assessment period, ie the period starting on the day the application is received (18 November 1996) and ending on the day the application is decided (section 19). Thus the Tribunal may determine the rate of pension for which the applicant is eligible at any time between the date of the application and the date of the Tribunal's decision and the applicant must comply with the eligibility criteria in section 24 at some time during this period (Forbes v Repatriation Commission (2000) 101 FCR 50 at 53; 171 ALR 131 at 134; 58 ALD 394 at 397; 31 AAR 381 at 384).

Findings on uncontentious matters

66. I make the following findings on various uncontentious matters

* on 18 November 1996 Mr Leane lodged a claim under section 14 for a pension (section 24(1)(aa))

* his date of birth being 25 April 1996, he had not turned 65 when this application was made (section 24(1)(aab)

* Mr Leane's degree of incapacity from war-caused injury has been determined to be 100 percent by a determination which was in force (the Veterans' Review Board determination of 1 March 2001 at T2) (section 24(1)(a))

* there is no evidence that section 25, which relates to periods of temporary incapacity, applies to Mr Leane (section 24(1)(d))

* Mr Leane suffers from the following accepted war-caused conditions

- post traumatic stress disorder

- bilateral sensorineural hearing loss with tinnitus

- osteoarthrosis of the right wrist

- osteoarthrosis of the right thumb

* although he also has osteoarthrosis of both hips, this has not been accepted as war-caused.

* his left hip was replaced in January 1997 and his right hip in January 1998

* Mr Leane was discharged from the RAAF on 20 July 1988

* he worked with ACTEW from 1989 until August 1996 when he took a redundancy package

* he was subsequently employed by the Australian Electoral Commission for approximately three months in 1997 for less than 20 hours per week on a specific task checking the electoral roll on home visits

* he undertook further work for the Australian Electoral Commission in 2001 amounting to fewer than 20 hours per week over 8 days on a recount for the federal election.

Is Mr Leane totally and permanently incapacitated?

67. Under section 24(1)(b) Mr Leane's war-caused incapacity, and that incapacity alone, must be responsible for him being incapable of undertaking remunerative work for more than eight hours per week. In deciding whether Mr Leane is incapable of undertaking remunerative work the only matters which may be considered are

* Mr Leane's vocational, trade and professional skills, qualifications and experience

* the kinds of remunerative work which a person with his skills, qualifications and experience might reasonably undertake

* the degree to which Mr Leane's war-caused conditions have reduced his capacity to undertake these kinds of remunerative work (section 28).

68. In applying a similar 'alone' test in section 24(1)(c) Justice Burchett said that the Tribunal's task was

"... to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide." (Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, emphasis added)

69. The question then is whether Mr Leane is incapable of undertaking remunerative work for more than eight hours a week and if so, whether that incapacity is attributable solely to Mr Leane's war-caused disabilities.

70. The evidence before the Tribunal is as follows

* Mr Leane said he left ACTEW because of his poor relationship with his supervisor, other employees and clients due to his PTSD and drinking problems

* had it not been for his PTSD and alcohol problems he would have stayed at ACTEW

* he found the AEC checking of the electoral roll stressful, although he could work on electoral recounts

* Mrs Leane testified that her husband did not deal well with a lot people, lacked concentration and motivation and was fearful of not doing a good job. Nevertheless, he might be able to work in a quiet desk position

* according to Dr Rosendahl Mr Leane's accepted conditions alone prevented him from working. Mr Leane could not work "at all due to PTSD"

* Dr Stone said that PTSD "alone is the cause of him being unable to maintain employment". His PTSD was severe enough to put him out of the workforce

* Dr Cole reported that Mr Leane "now believes, and probably correctly, that he would be unemployable in his trade ... because of his lack of recent experience" and PTSD related symptoms. Dr Cole doubted he was capable of remunerative employment

* Dr McGrath's only relevant comment was that judging from Mr Leane's response to a Lifestyle Effects questionnaire "John himself believes he has employment capacity at the present [September 2001]"

* in February 1997 Dr Koller diagnosed chronic PTSD and found Mr Leane to be unemployable

* Dr White considered that due to his PTSD Mr Leane was permanently unfit for any full or part time employment for more than 8 hours per week

* Dr Strum agreed Mr Leane was unemployable but due to depressive illness and alcoholism not to his PTSD.

71. Although Mr Modder for the Commission submitted that there were "problems" with Mr Leane satisfying section 24(1)(b), he did not press this point strongly and his main thrust was section 24(1)(c).

72. The weight of the evidence before the Tribunal is that Mr Leane is incapable of undertaking any remunerative work for periods aggregating more than eight hours per week. Of the medical practitioners only Dr McGrath disagrees. Furthermore, the medical evidence also strongly suggests this is solely attributable to Mr Leane's PTSD. See especially the evidence of Drs Rosendahl, Stone, Koller and White. Dr Cole is a little more tentative whilst Dr Strum asserts the reason is depressive illness and alcoholism not PTSD.

73. On all the material before me I am satisfied that Mr Leane is totally and permanently incapacitated for the purposes of section 24(1)(b).

Is Mr Leane's war-caused incapacity alone preventing him from working and thereby causing a loss in salary, wages or earnings?

74. Section 24(1)(c) requires that it is the veteran's war-caused injury which has not only led to the veteran not being able to work, but has also resulted in a loss in salary, wages or earnings for the veteran. In particular it focuses on whether there are reasons other than war-related injuries which caused the veteran to cease working or prevent the veteran from working.

75. In Flentjar v Repatriation Commission (1997) 26 AAR 93 at 96; 48 ALD 1 at 4-5 Justice Branson, with whom the other members of the Court agreed, held that section 24(1)(c) required answers to four questions

"1. What was the relevant "remunerative work that the veteran was undertaking" within the meaning of section 24(1)(c) of the Act?

2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?"

76. I note that the Court in Flentjar specifically stated that these questions were "the issues before the AAT in this case" (my emphasis). In my view some adaptation of these questions is necessary to adequately deal with the issues relating to section 24(2)(a) and (b) arising in this case.

77. Turning then to question 1, the phrase "remunerative work that the veteran was undertaking" does not refer to any particular job that the veteran had but to the type of work that the veteran previously undertook (Banovich v Repatriation Commission (1986) 69 ALR 395). The Tribunal finds that in Mr Leane's case this was general administrative/clerical and inspection activities. The tasks Mr Leane undertook with ACTEW have been described as "clerical" (T7, page 75) and "building maintenance" (Exhibit R8, page 56). This is consistent with Mr Leane's evidence. Furthermore, Mr Leane's casual work with the AEC also falls within this broad description.

78. On the evidence summarised and for the reasons given when considering whether Mr Leane is totally and permanently incapacitated for the purposes of section 24(1)(b) (see paragraphs 67 to 73 above) the answer to question 2 is yes. The Tribunal finds that Mr Leane is, by reason of his war-caused PTSD, prevented from continuing to undertake general administrative/clerical and inspection activities.

79. The answer to the third question involving the so-called "alone test" is somewhat more problematic even when Cavell's injunction to apply common sense with an eye to reality is heeded.

80. Mr De Marchi for Mr Leane submitted that the medical opinion was clear that it was Mr Leane's PTSD that put him out of work. His hip deterioration had been sudden and he could have returned to work after the hip replacement operations were it not for the PTSD. Furthermore, Mr Leane had always tried to hide or minimise the impact of his PTSD.

81. On the other hand Mr Modder for the Commission submitted that there were other medical factors preventing Mr Leane from undertaking remunerative work. In particular, Mr Leane was seriously disabled at the time he ceased work with orthopaedic problems with his hips and back.

82. In his evidence Mr Leane

* asserted that the sole reason he left ACTEW was the conflict with his supervisor, other employees and clients

* stated that his hips caused him extreme pain and limited his mobility to some extent although this did not prevent him doing his work

* agreed that although it was his PTSD condition which slowed him down he was disabled orthopaedically to a degree when he stopped work

* indicated that he had been referred to a pain management specialist while still at ACTEW

* said he saw Dr Coyle about the same time he ceased work in August 1996 about his hip and back problems

* referred to hip replacement operations in January 1997 and January 1998

* asserted that since the 1998 operation he had been "pretty right" and did not have any current hip or back problems and was able to do the same things as in the past.

83. Mrs Leane testified that Mr Leane's hip condition had deteriorated very rapidly just before the January 1997 operation disabling him significantly. This happened after he ceased work and at that earlier time he had only a little trouble. His hip problems were not his main complaint at that stage.

84. The medical evidence was as follows

* according to Dr Rosendahl, at the time he ceased neither Mr Leane's hip or back condition prevented him from working, although before his replacement operations Mr Leane was quite severely disabled by his hips. He stopped work because of his PTSD. After his operations his mobility was substantially improved and his hips were unlikely to be a problem in future

* however, there are references to hip problems in Dr Rosendahl's clinical notes in the few months prior to Mr Leane's first appointment with Dr Coyle. For example, on 22 July 1996 is recorded "Does not think he could do his normal duties with this much hip pain. Refer to Dr Coyle for assessment for his hip and back"

* Dr Stone was of the view that Mr Leane's hips were of no consequence at the time he ceased work. As total hip replacement gave an excellent outcome Mr Leane could now do virtually anything except heavy lifting and constant climbing or walking. Free of PTSD and alcohol problems he would probably still be working

* on 15 August 1996 Dr Coyle identified "two significant symptomatic orthopaedic problems", one in the spine and the other in the left hip. Dr Coyle's evidence suggests Mr Leane's hip surgery decision was fairly sudden

* Dr McGrath concluded that Mr Leane's decision to leave his employment was likely to be influenced by several factors including his bilateral hip replacements soon after, which suggested a considerable amount of pain and disability. In addition he had a spine condition which continued to give him trouble. He also concluded that Mr Leane had significant musculoskeletal problems

* Dr Strum considered that it was major depression with alcoholism that made and continued to make Mr Leane unemployable, not his PTSD

* Dr Hopkins refers to certain tasks "which aggravated his back pain, leg pain and shoulder pain. He therefore took voluntary redundancy because he could not tolerate the situation any further." In 1997 Mr Leane's back pain had become worse and he expressed the desire to attend a pain clinic.

85. Although there are some conflicting opinions, it seems fairly clear from that evidence that there were reasons other than the PTSD which were "also causally related to ... [Mr Leane] having ceased to engage in work" (see Magill v Repatriation Commission [2002] FCA 244 at [11]). These included in particular his significant hip problems, probably his spinal disability, and possibly if Dr Strums' evidence is accepted major depression with alcoholism. By virtue of the deeming provision in section 24(2)(a)(i), this finding is sufficient to defeat Mr Leane's claim for a special rate pension.

86. Furthermore, the evidence on whether PTSD is the only factor preventing Mr Leane from continuing to undertake his previous remunerative work is not clear cut, as Dr Stone acknowledges. A number of medical practitioners suggest that the non-PTSD problems have been resolved and others dispute this. On the material before me I am not able to make a finding on the balance of probabilities in Mr Leane's favour.

87. Having regard then to all this evidence

* I am satisfied and find that Mr Leane ceased to engage in remunerative work for reasons other than his war-caused conditions

* I am not satisfied that Mr Leane's war-caused conditions are the only factors preventing Mr Leane from continuing to engage in that work.

88. Question 3 in Flentjar must be read with section 24(2)(b). As put by Justice Drummond in Magill

"8. Section 24(2)(b) was correctly described by counsel for the Commission as "an ameliorative provision".. If the veteran satisfies the criterion contained in s 24(1)(c) - that the war-related incapacity "alone" has prevented the veteran from continuing to work - it is unnecessary to consider s 24(2)(b). If, however, a veteran has not been engaged in remunerative work at the relevant date, he or she will still be able to satisfy the "alone" criterion in s 24(1)(c) even though the war-related incapacity is not the sole cause of the veteran's inability to obtain work, provided the veteran nevertheless meets the requirements of s 24(2)(b)."

Further section 24(2)(b) provides that where a veteran younger than 65

"[W]ho has not been engaged in remunerative work satisfies the Commission -

* that he or she has been genuinely seeking to engage in remunerative work, and

* that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work, and

* that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage,

the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking." (Magill at [7])

See also Repatriation Commission v Sheehy (1996) 39 ALD 286 at 291-2; 133 ALR 654 at 659-660 and Re Sutton and Repatriation Commission [2001] AATA 119.

89. Mr De Marchi for Mr Leane sought to distinguish Flentjar on the basis that section 24(2)(b) applies to his client. He referred to Mr Leane's work with the AEC. The evidence on this is very limited

* in 1997 he worked for the AEC on a specific task only, ie checking the electoral roll

* this amounted to less than 20 hours per week spread over three months

* he worked for a second period with the AEC for 8 days spread over two weeks after the 2001 election

* Mr Leane felt he could do this regularly.

90. This latter work in 2001 was a one off for a recount of the poll. Although Mr Leane said he could do this regularly, there was no evidence that he sought further work of this type then or later with the AEC. There is also no evidence that he has sought other remunerative work.

91. In Re Hornery and Repatriation Commission (1998) 28 AAR 193 at 207; 52 ALD 317 at 331-2 the Tribunal said

"The Tribunal is satisfied that Mr Hornery would genuinely be liking to work, that is that he would genuinely like "to engage in remunerative work". The wording of the provision however requires that the Tribunal must be satisfied that Mr Hornery "has been genuinely seeking to engage in remunerative work". The Tribunal agrees with Deputy President McMahon in Re Bonner and Repatriation Commission (1989) 17 ALD 680 as reported at 681 that "the use of the word `genuinely' in the paragraph indicated the necessity for some objective signs of active pursuit of remunerative work".

92. In Mr Leane's case there are no objective signs of active pursuit of remunerative work. He can not therefore rely on the ameliorating provisions of section 24(2)(b).

93. The answer to Flentjar question 3 as discussed above is therefore no.

94. It is therefore unnecessary to consider the fourth question. However, in view of my finding at paragraphs 85 and 87 on Mr Leane's reasons for ceasing work, the answer must also inevitably be no.

95. The test set out in Flentjar has not been met. I am not satisfied that Mr Leane's war-caused incapacity alone prevented him from continuing to undertake the remunerative work that he had been undertaking and thereby caused a loss in income that he would not have suffered if he had been free of that incapacity.

CONCLUSION

96. Mr Leane has met most of the conditions set out in section 24(1). However, he has not satisfied that in section 24(1)(c) at any time within the assessment period. He is therefore not entitled to a disability pension payable at the special rate.

DECISION

97. The Tribunal affirms the decision under review of the Veterans' Review Board of 1 March 2001.

I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray

Signed:

............(Trevor Mobbs).................................

Associate

Date/s of Hearing 11 March 2002

Date of Decision 7 February 2003

Solicitor for the Applicant Mr D De Marchi, De Marchi and Associates

Solicitor for the Respondent Mr S Modder, departmental advocate