Felix Meyza v Repatriation Commission [1997] FCA 97 (24 February 1997)

CATCHWORDS

VETERANS - jurisdiction of Administrative Appeals Tribunal - applications for review of decisions relating to TPI rate - Board finding lack of jurisdiction - application for review by Tribunal - Tribunal finding lack of jurisdiction to review - whether Tribunal in error - whether Board decision on jurisdiction alone unreviewable by Tribunal

Administrative Appeals Tribunal Act 1975 , s29, s44

Safety Rehabilitation and Compensation of Employees Act 1988 (Cth)

Veterans Entitlements Act 1986 (Cth), s9, s15, s24, s34, s70, s74, s135, s139, s154, s175, s176

Crompton v Repatriation Commission (1993) 45 FCR 330

Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80

Fitzmaurice v Repatriation Commission (1989) 10 AAR 172

Repatriation Commission v Gordon (1990) 100 ALR 255

Ward v Nicholls (1988) 84 ALR 471

FELIX MEYZA v REPATRIATION COMMISSION

NO WAG 133 OF 1996

R D NICHOLSON J

PERTH

24 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 133 OF 1996

On appeal from the Administrative Appeals Tribunal

B E T W E E N: FELIX MEYZA

Applicant

and

REPATRIATION COMMISSION

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER: 24 FEBRUARY 1997

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal made on 5 August 1996 be set aside.

2. The matter be remitted to the Tribunal for reconsideration.

3. The respondent pay the costs of the applicant.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 133 OF 1996

On appeal from the Administrative Appeals Tribunal

B E T W E E N: FELIX MEYZA

Applicant

and

REPATRIATION COMMISSION

Respondent

CORAM: R D NICHOLSON J

DATE: 24 FEBRUARY 1997

PLACE: PERTH

REASONS FOR JUDGMENT

The applicant appeals against a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by a Senior Member and two Members given on 5 August 1996 in which the Tribunal decided it did not have jurisdiction to determine an application for review of a decision by the Veterans Review Board ("the VRB"). The VRB had decided on 23 August 1995 it did not have jurisdiction to review a decision made by the respondent on 21 April 1993 as varied by a decision of 5 May 1993 and a further decision of 14 May 1993.

Applicant's circumstances

The issue before the Board arose in the following way. On 29 March 1993 the applicant applied to the Department of Veterans Affairs ("the Department") for an increase in his disability pension seeking payment of a special rate pursuant to s24 of the Veterans Entitlements Act 1986 (Cth) ("the VE Act"). On 21 April 1993 a delegate of the respondent determined he was entitled to receive that pension at the special (totally and permanently incapacitated) rate ("TPI rate") with effect from 1 April 1993.

On 30 April 1993 the applicant requested a review of the decision so far as concerned the backdating of the TPI rate. On 5 May 1993 a delegate of the respondent determined to vary the date from which the TPI rate took effect to 18 March 1993.

On 9 May 1993 the applicant wrote to the respondent requesting a further review of the decision in respect of the backdating.

The applicant has been paid his disability pension for certain injuries and/or diseases which have been accepted as war-caused within the meaning of s9 of the VE Act. In addition it has been accepted that he suffers certain defence-caused injuries and/or diseases within the meaning of s70 of the VE Act. The applicant was in receipt of compensation payments pursuant to the Safety Rehabilitation and Compensation of Employees Act 1988 (Cth) ("the Safety Act") in respect of the defence-caused injuries and diseases.

On 11 May 1993 a delegate of the respondent determined that the defence-caused injuries and diseases were significant factors in the applicant's inability to undertake remunerative work. It was further determined that the applicant did not therefore qualify for the TPI rate as a result of his war-caused disabilities alone. Consequently it was determined the applicant's TPI rate be reduced to 100 per cent of the general rate of pension.

On or about 17 May 1993 the applicant received a letter from the respondent dated 14 May 1993 advising that his rate of disability pension should be limited pursuant to s74 of the VE Act because he received compensation pursuant to the Safety Act for disabilities which were partly responsible for his entitlement to the TPI rate. The letter did not contain any particulars of the applicant's right to have the decision reviewed by the Board.

The applicant then telephoned a delegate of the respondent and author of the letter dated 14 May 1993. He was advised by her he had no right of appeal in relation to the decision referred to in the letter.

Sometime after October 1993 and certainly in or about June 1994, the applicant became aware that a right of review was provided in respect of the decision contained in the letter of 14 May 1993. Accordingly on 30 June 1994 he made application to the Board seeking review.

Board reasons

After recounting the history of the matter the Board reached the conclusion that it did not have power to review the decision communicated in the letter of 14 May 1993 because it related to administrative action taken under s74 of the VE Act which was not one of the subjects in respect of which a right of review was provided by s135 of the VE Act.

Section 74 sets out provisions relating to payments by way of compensation or damages, inter alia, in respect of the incapacity of a member from a defence-caused injury or disease.

Section 135 relevantly provides:

"(1) Where a person:

(a) who has made a claim for a pension in accordance with s14;

(b) who has made application for a pension, or for an increased pension, in accordance with s15; or

(c) who has made an application for attendant allowance under s98;

is dissatisfied with any decision of the Commission in respect of the claim or application (including a decision under s20 or s21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made, but not being a decision under subsection 19A(1)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission.

(2) Where the Commission, upon a review under s31 of a decision in relation to a pension or attendant allowance, has made a further decision revoking or varying that decision, the veteran, or the dependant of a deceased veteran, as the case may be, affected by that further decision may make application to the Board for a review:

(a) of the further decision of the Commission revoking that previous decision; or

(b) of that previous decision as varied by the further decision of the Commission;

as the case may be.

(3) Where the Commission makes a determination:

(a) under subs31(6) cancelling or suspending, or decreasing the rate of, a pension or attendant allowance;

(b) under subs31(8) increasing the rate of a pension or attendant allowance; or

(c) under subs31(9) fixing the date of re-commencement of a pension or attendant allowance that has been suspended;

the veteran, or the dependant of a veteran, as the case may be, affected by that determination may make application to the Board for a review of that decision of the Commission to cancel or suspend that pension or attendant allowance, to decrease or increase the rate of that pension or attendant allowance or fixing the date of re- commencement of that pension or attendant allowance that has been suspended, as the case may be.

(4) ...

(5) An application under subsection (1), (2) or (3) to the Board to review a decision of the Commission:

(a) assessing a rate of pension or increased rate of pension;

(b) refusing to grant a pension on the ground that the extent of the incapacity of the veteran is insufficient to justify the grant of a pension;

(c) refusing to increase the rate of a pension;

(d) reducing the rate of a pension; or

(e) cancelling or suspending a pension, or fixing the date of re- commencement of a pension that has been suspended;

may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with subs34(2), but not otherwise.

..."

The Board also found there was no proper application for review before it because the requests for review did not relate to the respondent's letter of 14 May 1993.

Additionally the Board found that the application lodged on 30 June 1994, whether it be construed as relating to any or all of the decisions 21 April, 5 May or 14 May 1993, was outside the time limit imposed by s135.

The Board accordingly concluded it did not have jurisdiction to proceed to review.

Tribunal reasons

In its reasons the Tribunal said:

"The consequence is that the Veterans' Review Board found, in our view erroneously, that they did not have jurisdiction on merits. But they also found, in our view, correctly they did not have jurisdiction because the appeal was out of time. We have come to the view in the light of what the Federal Court said in Crompton v Repatriation Commission, which is [1993] FCA 468; 1993 18 AAR 192, that in fact this Tribunal does have a limited jurisdiction to review decisions. In particular we refer to what is said by the Full Court in relation to the decision of Spender J in Repatriation Commission v Gordon where at page 196 of the report the Full Court seems to be giving its approval to what His Honour said in Gordon.

We therefore come to the view that we do not have a jurisdiction with terms of s175 because the Board did not proceed to review the decision of the Repatriation Commission. However, if we are wrong in relation to that view we have also come to the view that the Board was correct in its reasons that it did not have jurisdiction because of the expiration of the time limits prescribed by the Veterans' Entitlement Act 1975 . Those time limits expired because of incorrect advice given to the applicant by the Repatriation Commission."

The Tribunal concluded:

"For those reasons we are satisfied that the Veterans' Review Board was correct in its decision insofar as it decided it had no jurisdiction on the basis of the timing provisions of the Veterans' Entitlements Act. We are also satisfied that this Tribunal has no jurisdiction in terms of subs(1) of s175 of the Veterans' Entitlement Act, and the decision of the Tribunal will be that the Tribunal lacks jurisdiction to determine the application for review..."

Grounds of appeal

Two issues are raised by the grounds of appeal. The first is whether the Tribunal erred in law (see Administrative Appeals Tribunal Act s44, which is not varied by s176 of the VE Act) when it determined it did not have jurisdiction to review the decision of the Board "because of the expiration of the time limits prescribed by the VE Act". Secondly, it is said the Tribunal erred in law when it determined it did not have jurisdiction within the terms of s175 of the VE Act because the Board did not proceed to review the decision of the respondent.

Application of time limit

Subject to two matters which will follow, there is no disagreement between the cases for the applicant and for the respondent on the substance of the issue relating to time. The reference to time is a reference to the provisions of s135(5) and to the making of the application within three months "after service on the person to whom the decision relates of a copy of that decision in accordance with subs34(2), but not otherwise".

Section 34 reads:

"(1) Where the Commission makes a decision:

(a) with respect to a claim for a pension in accordance with s14, or an application for a pension or increased pension in accordance with s15;

(b) by way of assessing the rate of a pension or attendant allowance, or determining the date of commencement or cessation of a pension or attendant allowance;

(c) to vary a decision upon a review carried out under s31;

(d) to cancel or suspend a pension or attendant allowance under subs31(6); or

(e) to decrease the rate of a pension or attendant allowance under subs31(6) or to increase the rate of a pension or attendant allowance under subs31(8);

the Commission shall make a written record of its decision together with a statement in writing setting out findings on material questions of fact, referring to the evidence or other material on which those findings are based and giving its reasons for the decision.

(2) As soon as practicable after the Commission makes a decision referred to in subs(1), the Commission shall, subject to subs(3), cause to be served:

(a) in the case of a decision in respect of a claim or application - on the claimant or applicant; or

(b) in the case of a decision of a kind referred to in pars(1)(b), (c), (d) or (e) - on the person affected by the decision;

a copy of its decision and of the statement relating to the decision made by it in accordance with subs(1) together with particulars of the right of the person on whom it is served to have the decision reviewed by the Board."

Subsection (3) has no relevant application here.

It being an undisputed fact the respondent's letter of 14 May 1993 was not accompanied by particulars of how the applicant could have the decision reviewed by the Board, it is apparent from the terms of the section, which is accepted by the parties as mandatory, have not been complied with. That such is the effect of subs34(2) is also supported by Repatriation Commission v Gordon (1990) 100 ALR 255 at 264 where Spender J said:

"...there is nothing in his affidavit material as to whether particulars of the right of the person to have the decision reviewed by a board were in fact enclosed.

If the requirements of s34(2) (or s47A(2)) have not been satisfied in that only some of the documents required to be served have in fact been served, then there has not been service which the legislation calls for, and time does not commence running."

It follows that if there is a right to have the decision reviewed, the application made by the applicant on 30 June 1994 was not out of time because the time limits had not commenced to run.

The respondent accedes to this submission subject to two propositions. The first is that a decision under s74 is not open to review. The second is that the Tribunal was right in the view which it took of s175 of the VE Act.

Section 74 was not raised in the applicant's grounds of appeal. It is contended for the respondent that by saying "the consequence is that the Veterans' Review Board found, in our view erroneously, that they did not have jurisdiction on merits", the Tribunal sought to deal with s74. No notice of contention relating to the matter was filed on behalf of the respondent. In those circumstances the issue is open to be argued before the Tribunal if the applicant succeeds in making out the remaining aspect of his appeal.

For the respondent the position is reserved by contending that if s74 is not open to review, as contended for the applicant, then s34(2) can have no application to it so that it cannot excuse the failure to comply with the time limit in s135(5). This being unargued and undetermined does not prevent acceptance by the Court of the shared arguments of the applicant and the respondent in relation to the effect of s34(2).

Jurisdiction to review decision

Turning therefore to the remaining aspect, s175(1) of the VE Act provides:

"(1) Where a decision made by the Commission has been reviewed by the Board upon a request made under s135 and affirmed, varied or set aside, then, subject to s29 of the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for a review:

(a) of the decision of the Commission that was so affirmed;

(b) of the decision of the Commission as so varied; or

(c) of the decision made by the Board in substitution for the decision so set aside;

as the case may be."

Section 29 of the AAT Act as varied by s176 of the VE Act has no qualifying effect here.

The powers of the Board are those provided for in s139(3) of the VE Act which reads:

"(3) For the purpose of reviewing a decision of the Commission, the Board may exercise all the powers and discretions that are conferred by this Act on the Commission in like manner as they are required by this Act on the Commission in like manner as they are required by this Act to be exercised by the Commission, and shall make a decision, in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and making a decision in substitution for the decision so set aside."

The contentions for the applicant are as follows. When the Board determined it did not have jurisdiction to review the decisions it in fact chose a form of words not open to it because of the provisions of s139(3) of the VE Act. What in effect the Board did was to determine that the decision under review would be affirmed, unvaried and unsubstituted. Consequently, the Tribunal had jurisdiction because the Board had made a decision reviewable pursuant to s175(1) of the VE Act.

In support of this contention reliance is placed upon dicta of Wilcox J in Ward v Nicholls (1988) 84 ALR 471. In Ward the Board had decided it had no jurisdiction to deal with an application because of s154(1) of the VE Act which required the decision be binding on the applicant for a period of six months commencing on the day it was made. The applicant there sought to have the decision of the Board reviewed by the Tribunal which held that, as a consequence of s154, it lacked jurisdiction on the ground that the Board had not made a decision within the meaning of the VE Act and the Tribunal was limited to reviewing decisions within the meaning of that legislation. The present respondent appeared as a respondent in Ward.

After development of his reasons Wilcox J said at 480:

"I am of the view that s154(1), properly construed, had no relevance to the decision of the second Board, and that the Board was incorrect in regarding that section as an inhibition upon its considering Mr Ward's second application on its merits. I add that, even if there had been a problem about s154, it was an incorrect choice of language to say that the Board had "no jurisdiction" in the matter. The Board had the jurisdiction given to it by s139 of the Veterans' Entitlement Act. It was bound to review the decision of the Commission, and thereafter to make a decision in writing affirming the decision under review, varying the decision under review or setting aside the decision under review and making a decision in substitution for the decision so set aside. If the matter had come before the second Board within the six month period, as properly computed, it is correct to say that the Board would have been bound to have affirmed the decision under review for the reason that it was not free to give effect to the claim for an increased disability pension. But, in so doing, it would have been exercising the jurisdiction given to it by s139. It would not have been in a position of lacking jurisdiction."

He continued at 481:

"If, as I have suggested, the effect of what the second Board did was to affirm the decision of the Commission, then it is plain that the Administrative Appeals Tribunal had jurisdiction in the matter.

It would be a very odd situation if the position were as perceived by Mr Bannon; that is to say, if the appointed first instance reviewer, the Veterans' Review Board, erroneously found that it had no jurisdiction, and the Administrative Appeals Tribunal - which is set up by statute to review on their merits decisions of that Board - was then precluded from considering for itself whether that Board in fact had jurisdiction and, if so, what decision it should have made. There would be a lacuna in the system of administrative review disappointing to those who had laboured to set up the comprehensive system which appears to be provided by the statute. I cannot think that this is right. I think that the true position is that the Veterans' Review Board is always in the position of having to decide whether to affirm, to vary or to set aside the decision of the Commission, and that, whatever decision it makes, that decision is subject to review by the Administrative Appeals Tribunal."

For the applicant reliance is also placed on the decision of the Full Court in Crompton v Repatriation Commission (1993) 45 FCR 330. The applicant veteran in that case had made an application for increase in pension pursuant to s15(1) of the VE Act. The respondent refused the application on 12 December 1988. The veteran sought review of the decision by the Board pursuant to s135(1)(b) of the VE Act. Although he completed and signed an application form with the assistance of an officer of the Legal Aid Commission, there was no evidence the application had been dispatched. On 7 July 1989 he was advised it had not been received. On 11 July 1989 a photocopy of it was forwarded to the Department. On 8 May 1990 the Board treated the original application as "validly made" and on 15 October 1991 affirmed the decision of the Commission to refuse an increase in pension. In a subsequent application to the Tribunal the Board's decision was set aside on the ground that s135 of the VE Act requires an application to be lodged within three months of the applicant being served with a copy of the decision and the application was out of time, not having been lodged until July 1989 when the photocopy was forwarded. The Tribunal held the Board had no discretion to extend the period of time provided for in the statute. The Full Court dismissed an appeal from the Tribunal's decision.

The first ground of appeal before the Full Court was that the Tribunal erred in law when it purported to review the Board's finding as to its jurisdiction because the finding was not a reviewable decision under the VE Act. In support it was submitted the Board's finding on 8 May 1990 on the jurisdictional question was a finding of fact which resolved a substantive issue pursuant to s139(2) and was final. However, the Board's decision on 15 October 1991 was a decision to affirm, vary or set aside the Commission's decision pursuant to s175(1) which was therefore a reviewable decision under that section. These submissions were rejected by the Full Court.

The Full Court held the jurisdictional finding by the Board on 8 May 1990 was a procedural matter forming part of the overall decision of the Board and there was no basis for characterising it as a final and operative decision. For this the Full Court relied upon Director- General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 at 99 and 104 per Deane J.

The Full Court then cited Ward v Nicholls (supra) at 27 and expressed concurrence with an observation by the Tribunal that "the same position must apply in the subject matter, be it that the Board in this instance found that it did have jurisdiction", not, as in Ward v Nicholls that it did not have jurisdiction.

The Full Court also relied upon Fitzmaurice v Repatriation Commission (1989) 10 AAR 172 where at 184 Wilcox J discussed the requirement for the decision to be viewed as a whole and not separated into its constituent parts for the purposes of review, so that "what is important is that any application for review must raise for the Tribunal's consideration everything decided by the Board in its review of the case".

Counsel then turned to what it described as a number of recent decisions which counsel for the applicant had submitted ran contrary to the view which the Full Court was expressing in Crompton. In relation to the second of these the Full Court said:

"Similarly, in Repatriation Commission v Gordon (1990) 26 FCR 569, Spender J approved the Tribunal's determination when he held that a jurisdictional decision by the Board was not a "reviewable decision" pursuant to the Act. In that case, the interim procedural decision determining the Board's jurisdiction to hear the matter was the only decision the Board had made. As no finding of substance had been made at that time, the procedural finding was not one open to review by the Tribunal under s175."

The Full Court continued by saying that none of the recent decisions relied on by counsel took the next step in the reasoning process the basis of that appeal. The Court continued:

"That is, although the Tribunal has jurisdiction to accept an application for review of the Board's decision, the Tribunal must, during the course of that review, have the power to re-determine the question of its own jurisdiction. If it is shown that the Board lacked the jurisdiction in the first instance then it follows that the Tribunal must also lack jurisdiction to review the merits. In our view there is nothing in these cases that precludes the finding that the Tribunal can, and indeed must, re-decide, the question of its jurisdiction in each case before proceeding to merits review."

The Full Court continued at 335:

"In administrative proceedings, having the power to determine and redetermine questions of jurisdiction is essential to the process of determining questions of law and fact. The Board is a body of limited jurisdiction which is incapable of binding subsequent administrative bodies on a question of jurisdiction. The applicant's proposition that a board or tribunal's finding on the question of its own jurisdiction must stand unassailed until overturned by a court of competent jurisdiction cannot be accepted.

In the present case, there is a right of appeal from the Board on questions of both law and fact, and it would indeed be "a lacuna" in administrative proceedings if questions of jurisdiction had always to be determined by court intervention. Where a board or tribunal determines a question of law during its own proceedings, that question must be open to redetermination by a superior tribunal."

It may be thought that these reasons have contained overlengthly citation from the reasons of the Full Court. However, such citation is made necessary by the attention given to the detail of that reasoning in the argument brought for the respondent in relation to them.

The core of the respondent's case is that the Board can only review a decision in the circumstances permitted by s139(3) of the VE Act and can only do so in relation to matters coming before it pursuant to s135. It is contended the obligation created by s139(3) on the Board to affirm, vary or set aside and substitute a decision does not have the consequence that all decisions of the Board are to be characterised as falling into one or other of those categories of decision-making. Therefore it is said a decision in relation to jurisdiction by the Board is not a decision which properly comes within s175 for review by the Tribunal.

To support this the argument the respondent's case turns to what was said by the Full Court in Crompton in relation to Gordon (supra). It is said the final two sentences of that paragraph show the Full Court agreed with and followed the reasoning of Spender J in Gordon. However, as has been stated, Gordon was one of a number of decisions which the Full Court in Crompton acknowledged ran contrary to the view it expressed. If, contrary to this view, it be the case that the Full Court was expressing its own view and not merely describing the reasoning of Spender J, the question arises on the case for the respondent whether a decision of the Board that it lacks jurisdiction made alone can be a reviewable decision under s75 to give the Tribunal jurisdiction to review the decision of the Board. The submission for the respondent is that such decision is not reviewable because it is not in terms an action referred to in s139(3).

That submission is a direct challenge to the reasoning of Wilcox J in Ward v Nicholls. I am therefore invited not to follow that decision and to prefer the reasoning of Spender J in Gordon. Regrettably, although Gordon was decided after Ward v Nicholls, it was not apparently drawn to the attention of the Court in Gordon.

There are two reasons of substance why I consider that I should not depart from the reasoning in Ward v Nicholls even where the Board has only made a decision on jurisdiction. The first is that reference to s139(3) makes apparent that, for the purpose of reviewing a decision of the respondent, the Board must make a decision in one or other of the three permitted ways. It cannot act in any other way. If it uses a different form of words it is appropriate to look to the substance of what it has done to determine whether it has acted in one or other of the authorised ways. If a Board decides it does not have jurisdiction its decision has the effect of affirming the decision under review because it does not vary it or set it aside and make a decision in substitution. It is not therefore artificial to follow the reasoning in Ward v Nicholls at 480.

Secondly, if it is the case that where a Board decides it lacks jurisdiction and makes no other decisions that the decision would only be reviewable by intervention of a court, the further reasoning in Ward v Nicholls comes into play. In Crompton at 335 the Full Court accepted there would indeed be a lacuna in the administrative proceedings "if questions of jurisdiction had always to be determined by court intervention". For the respondent it is said that confinement of such intervention to instances where the Board has decided the question of jurisdiction alone will not mean there will "always" be court intervention. In my view this is reading the reasons of the Full Court as if they were the words of a statute. There is no distinction in principle between a lacuna arising in relation to either instance.

There is a third reason why Ward v Nicholls should not be set aside. It is that it is a decision made in 1988 which was not then appealed by the present respondent as one of the respondents in it and the reasoning which was clearly accepted by the Full Court in the citation made in Crompton at 333.

For these reasons I consider that the Tribunal was in error when it came to the view that the decision of the Full Court in Crompton and the reference in it to Gordon supported its conclusion that it did not have jurisdiction pursuant to s175 of the VE Act to review the decision of the Board that it lacked jurisdiction. In the present case there was a decision of the respondent; in relation to it the Board made a decision having the effect of affirming the decision under review; jurisdiction therefore arose pursuant to s175(1) of the VE Act.

Conclusion

For these reasons I would allow the appeal and remit the matter to the Tribunal for reconsideration.

I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date: 24 February 1997

APPEARANCES

Counsel for the Applicant: Mr G Galic

Solicitors for the Applicant: Kott Gunning

Counsel for the Respondent: Mrs N Johnson

Solicitors for the Respondent: Australian Government

Solicitors

Date of Hearing: 11 February 1997

Date of Judgment: 24 February 1997