CATCHWORDS

ADMINISTRATIVE LAW - appeal from decision of the Administrative Appeals Tribunal ("AAT") - whether the AAT complied with its obligations under s43(2) and s43(2B) of the Administrative Appeals Tribunal Act 1975(Cth) - whether the AAT failed to give reasons or sufficient reasons for its decision, or failed to include findings on material questions of fact with reference to the evidence or material on which those findings were made - whether there was analysis or evaluation of the evidence - sufficiency of reasons are a question of substance and degree - material contentions and submissions to be considered - whether it can be presumed that the AAT accepted the opinions, findings, evidence and reasoning of particular experts - whether opposing expert opinions are clear-cut and differ on precise issues - whether reasons can be inferred from decision as whole - whether the reasoning process is disclosed - s43 to be approached in a common sense way - whether reasons expose a logical process - AAT's reasons not to be construed minutely or finely - whether there is substantial reliance - whether reasons convey to parties basis on which result was arrived at.

Administrative Appeals Tribunal Act1975 (Cth) s43(2) and s43(2B)

Australian Telecommunications Commission v Barker (1990)

12 AAR 490, cited

Dornan v Riordan (1990) 24 FCR 564, cited

Telescourt v Commonwealth of Australia (1991) 29 FCR 227, cited

Commissioner of Taxation v Osborne (1990) 26 FCR 63, cited 

Casarotto v Australian Postal Commission (1989) 86 ALR 399, cited

Savas Vasili v Australian Telecommunications Corporation (Unreported, 12 December 1991, Federal Court, von Doussa J,

No SG 85/1991), distinguished

Commonwealth of Australia & Anor v Borg (1994) 20 AAR 299, distinguished

Telstra Corporation Limited v Arden (1994) 20 AAR 299, distinguished

Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65, considered

Dodds v Comcare Australia (1993) 31 ALD 690, applied

Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029, applied

Optiz v Repatriation Commission 29 FCR 50, cited

AUSTRALIAN POSTAL CORPORATION v

MARION FRANCES WALLACE

No NG 489 of 1995

Tamberlin J

Sydney

26 February 1996

IN THE FEDERAL COURT OF AUSTRALIA)                 

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 489 of 1995

GENERAL DIVISION                  )

             ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION

                   OF THE ADMINISTRATIVE APPEALS TRIBUNAL

                    CONSTITUTED BY SENIOR MEMBER GRIMES

              BETWEEN:      AUSTRALIAN POSTAL CORPORATION

                             Applicant

              AND:          MARION FRANCES WALLACE

                             Respondent

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        26 FEBRUARY 1996

                   MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.   The decision of the Administrative Appeals Tribunal ("AAT") be set aside.

2.   The matter be remitted to the AAT to be decided in accordance with the law.

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

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 489 OF 1995

GENERAL DIVISION                  )

             ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION

                   OF THE ADMINISTRATIVE APPEALS TRIBUNAL

                    CONSTITUTED BY SENIOR MEMBER GRIMES

              BETWEEN:      AUSTRALIAN POSTAL CORPORATION

                             Applicant

              AND:          MARION FRANCES WALLACE

                             Respondent

CORAM:        TAMBERLIN J

PLACE:        SYDNEY

DATED:        26 FEBRUARY 1996

                    REASONS FOR JUDGMENT

In this matter Australian Postal Corporation ("APC") appeals from a decision of the Administrative Appeals Tribunal ("AAT"), constituted by Dr D J Grimes, delivered on 8 June 1995.

The AAT set aside the decision under review and found that the effects of the work related injury or aggravation suffered by Marion Frances Wallace ("the respondent") had not ceased, and that as a result of such injury or aggravation, the respondent is incapacitated for work. The AAT remitted the matter to APC and directed that compensation be assessed in accordance with the AAT's findings.

The decision under review by the AAT was a decision of the delegate of APC of 18 February 1993, which affirmed a determination of 24 November 1993, that compensation was not payable to the respondent in respect of an injury to her back on and from 2 November 1993.

The questions raised in the appeal are:

(a)  Whether the AAT failed to comply with its obligations under s43(2) and s43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), in that it failed to give reasons for its decision, or failed to include findings on material questions of fact and a reference to the evidence or other material on which those findings were made.

(b)  Whether the AAT otherwise erred in law in reaching its decision.

Statutory Provisions

The relevant sections of the AAT Act are:

          "43(2) ... the Tribunal shall give reasons either orally or in writing for its decision.

          .....

          (2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

          44(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia on a question of law, from any decision of the Tribunal in that proceeding.

          ..."

Factual Background

The respondent was born on 1 December 1942 and is married with three adult children. She commenced work with the APC in 1978. On 30 July 1980 she was lifting bags of mail for delivery and gave evidence that one bag was left alone and when she bent down to pick it up it contained one very heavy item. The respondent felt a pull in her back but continued to put the bag on the trolley to be dispatched. She said she experienced a dull ache or pain which was quite severe but she continued with the rest of her shift.

The respondent completed an accident report on 30 July 1980 in which she described her injury as a "hurt back", which had occurred whilst "lifting bag on barrow".  The respondent gave evidence that she took about ten days off work as a result of the incident and that she suffered very severe pain.

The respondent returned to work and normal duties and continued with the same duties until 17 June 1988, taking "a few days off here and there". She conceded that much of the time she took off was as sick leave rather than as compensation for her back injury. She said that her employer had taken a considerable period of time to pay compensation and she could not afford to wait for the money and at this stage she was a single mother with dependant children.

On 17 June 1988 the respondent was working at the Newcastle Mail Centre loading and unloading pantechnicon trucks when her back "got really bad".  She gave evidence that her stomach swelled up and her back curved. She suffered severe pain and her whole body ached.

The respondent was examined by her general practitioner, Dr Mah, on the same day and he stated that he found the respondent had a "flare of an old injury to her back (lumbosacral strain - predominantly right side)". Dr Mah recommended time off work and prescribed medication. The respondent's evidence was that the medication gave her some relief but the pain continued and she was referred for X-rays soon after. On the pain continuing, Dr Mah referred the respondent to Dr Isaacs, an orthopaedic surgeon. He had two discogram CT scans performed on the respondent and advised her to undergo surgery. She underwent a spinal fusion operation at Lake Macquarie Hospital in Newcastle on 11 June 1991. The respondent's evidence was that she was in "unbelievable" pain after the operation and that she remained in hospital for three weeks.  When discharged she remained in "a lot of pain". The respondent was advised by Dr Isaacs to take up swimming as a form of rehabilitation and the respondent gave evidence that she did not do so but carried out rehabilitation by walking up and down the swimming pool.

Before the respondent underwent surgery she was suffering leg pain and spells when her "legs would give way and she would fall to the ground". She gave evidence that after the operation she still suffered "a little bit of trouble" but her legs were much better.

The respondent ceased work in February 1991 and remained off work until 11 August 1993 when she was retired on medical grounds. She did not undertake any other work apart from assisting her husband with her partnership/company until January 1995 when she participated for three days in a return to work program offered by APC. The respondent ceased the return to work program after three days because of an aching back. The program involved standing, sitting and sorting mail for four hours a day. Her condition was aggravated, she said, on the first day when she took breaks and walked around. This "took the edge off it" and she was able to return to work. However, her condition deteriorated over the three days and she said by the end of the third day it was "unbearable". On the following Monday she was unchanged and was unable to
return to work. The respondent gave evidence that it took quite a few days for her condition to improve.

The respondent remarried in 1989 and she is now involved in a  cement carrying company with her husband which was previously run as a partnership. They are the sole shareholders and employees. The respondent's duties include paying the company's bills, answering the telephones and keeping the company's books. This is not a full time position and involves only a few hours per week.

The respondent gave evidence that she had great problems doing the vacuuming and often has to lie down for a couple of days afterwards.  Her husband's evidence was that on "odd occasions" he does the vacuuming for his wife when she is unable to do it and does the garden and makes beds when his wife is unable to carry out these tasks.

The AAT Decision

The AAT's reasons for decision has the following framework. Firstly there is mention of the nature of the application, the hearing and the type of exhibits and oral testimony. The decision then lists the exhibits and refers to the fact that oral evidence has been provided by a number of witnesses.

It was accepted by both parties that the respondent had sustained an injury or an aggravation of an pre-existing condition on 30 July 1980 in the course of her employment and that she also suffered an aggravation of that condition on 17 June 1988. The issues before the AAT were seen to be:

     "(a)whether the applicant [the respondent in this proceeding] continues to suffer from the effects of the injury or aggravation on and from 2 December 1993.

     (b)  whether the applicant is incapacitated for work as a result of that injury; and

     (c)  Whether the nature and conditions of the applicants's employment resulted in injury or aggravation of a pre-existing condition."

The decision then sets out the factual background referred to earlier.

Seventeen paragraphs follow (numbered 17-33 inclusive) which summarise and provide some quotations from the medical evidence. These paragraphs do not evaluate or discuss that evidence.

The remainder of the decision (paragraphs 34-41) reads:

     Conclusions

     34.  It is the respondents's [the applicant's in this proceeding] submission that the applicant [the respondent in this proceeding] is an unreliable witness. The respondent pointed to the history given to Dr Prasa and the Royal Newcastle Hospital and the applicant's claim that the pain started in 1980. Counsel for the respondent suggested that there were three possible explanations for the comment about a fall in Dr Sendak's report: the doctor was wrong, the applicant was wrong, or the applicant told the doctor of the fall and the note is correct.

     35.  Counsel for the respondent further submitted that the applicant lacked motivation to return to work. It was noted that the applicant ceased to be a sole parent at the end of the 1980's and that the report and evidence of Dr Olsen supported this decrease in motivation. It is the submission of the respondent that there was no on-going liability as of the date of the decision under review.

     36.  It is the applicant's submission that there is causation between one of the incidents at work and the on-set of the applicant's aggravation or that the nature and conditions if the applicant's employment aggravated her condition. Counsel for the applicant submitted that the applicant was a witness of truth and pointed to the evidence of Dr Isaacs; Dr Mah, and Professor Kerridge as supporting her claim.

     37.  The Tribunal found the applicant to be a witness of credit who had only minor lapses of memory which were understandable after such a length of time. The Tribunal notes that the report of Dr Sendak may have been a misunderstanding as to whether the applicant had been involved in a fall or an incident whilst lifting a mailbag.

     38.  It is the evidence of the applicant's treating specialist, Dr Isaacs, that the applicant is not fit for any type of work and that this is due to the incident at work in 1980 and an aggravation at work in 1988. This opinion is shared by Dr Kerridge who recommended retirement on medical grounds in 1993, and Dr Ghabrial.

     39.  It is Dr Olsen's opinion that the applicant has suffered aggravations of her degenerative condition but these aggravations have since ceased. Dr Olsen does not believe the applicant is totally incapacitated and believes she is capable of filling a counter position after a graduated return to work program. Dr Hughes also believes that the applicant suffered a temporary aggravation of a degenerative disease.

     40.  The Tribunal prefers the evidence of the applicant's treating doctors and finds that the applicant continues to suffer the effects of an injury suffered at work on 30 July 1980 and aggravated on 17 June 1988. This injury and aggravation has left the applicant incapable of performing any work.

     41.  For the reasons given above the Tribunal sets aside the decision under review and in substitution finds that:

     (a)  the effects of the work-related injury or aggravation suffered by the applicant have not ceased; and

     (b)  as a result of such injury or aggravation the applicant is incapacitated for work; and

     (c)  the matter is remitted to the respondent with the direction that assessment of compensation payable pursuant to section 19 of the Safety Rehabilitation and Compensation Act 1988 on and from 2 December 1993, if any, be made in accordance with the Tribunal's findings."  (Emphasis added)

APC's Submissions

1.   APC says that the error of law made by the AAT is that it failed to comply with its obligations under s43(2) and 43(2B) of the AAT Act, because it failed to give reasons or findings on material questions of fact. There was no analysis or evaluation of the evidence. Reliance is placed on Australian Telecommunications Commission v Barker (1990) 12 AAR 490 at 492; Dornan v Riordan (1990) 24 FCR 564 at 573-574; Telescourt v Commonwealth of Australia (1991) 29 FCR 227 at 234.

     In Dornan's case the Court concluded there was a substantial breach of the Tribunal's duty to state the reasons for its determination. At 575 the Court said:

          "The major flaw in the Tribunal's decision was that the Tribunal did not state reasons adequate to enable the Court to determine whether or not any other error had occurred in the reasoning process."

     In that case the Full Court held that a substantial failure to state reasons for a decision constituted an error of law, in circumstances where there exists an obligation to state reasons.

2.   It is a question of substance and degree whether reasons, findings or evidence are sufficient. Cf Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65. 

3.   Material contentions and submissions must be considered by the AAT in its decision, Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402-3.

4.   The particular matters relied on are:

     (a)  No reason is given for the preference by the AAT of the evidence of the respondent's treating doctors. There is simply a bald statement of the preference.

     (b)  The AAT does not advert to APC evidence which could be relevant and significant in relation to the history of back pain symptoms prior to the 30 July 1980 work injury in circumstances where the APC case is that there was an underlying degenerative condition.

     (c)  No reason is given as to why it was not considered important to take into account the 1984 motor vehicle accident and resulting complaint of back pain.

     (d)  There is no discussion of the pattern of attendance by the respondent at the work place. This was contained in one of the APC exhibits (Ex.R12) and the APC advanced a submission on the work attendance pattern.

     (e)  No reasoning or explanation is provided as to how the AAT reached the conclusion expressed in para (40) that the injury and aggravation left the respondent incapable of performing any work.  On its face this is a curious conclusion in view of the fact that in para(15) of the decision, it is stated that the respondent was involved in a cement carrying company and that her duties include paying the company's bills, answering the telephone and keeping the company's books. One possible explanation could be that in saying that it is not a full time position and involves only a few hours per week, the Tribunal did not consider it of significance. Nevertheless, it is in direct conflict with the conclusion expressed in para(40) of the AAT decision.

     (f)  The above conclusion is also contrary to the report of Dr Olsen, called by the APC, that the respondent, as at September 1993 had sufficient back function to perform a variety of jobs including work as a postal services officer and that she was fit to work as a postal services officer and would be fit to undertake occupational rehabilitation to resume work, such as a receptionist, inquiry counter work, service station console operator, some forms of assembly work and or process work. No reason is given why this opinion was not accepted.

Respondent's Submissions

(1)  This was a case in which there were two clear alternatives. A decision had to be made between two directly opposed views, accepted opinions and evidence. It can therefore be presumed that the AAT accepted the opinions, findings, evidence and reasoning of the treating doctors and rejected the evidence and opinions of the experts relied on by the APC. The respondent relied on the remarks of von Doussa J in Savas Vasili v Australian Telecommunications Corporation (Unreported, 12 December 1991, Federal Court, No SG 85/1991). In that case his case his Honour said at 20-21:

          ".... The expressed preference for the opinions of the medical witnesses called by Telecom necessarily involved the rejection of the opinion of Mr Hone as to the reliability of the CT/discogram procedure. Furthermore, the express finding ... that the applicant had recovered from any work related injury by October 1989 and thereafter was malingering, reflected the preference for the opinion of the other medical witnesses over that of Mr Hone. In my opinion the Tribunal did not fall into error of law in failing to make an express finding that the CT/discogram procedure performed in August 1990 did not give a reliable result. The reasons sufficiently disclose that the topic was one considered by the Tribunal and that a finding on the topic was made by necessary implication....

          In the circumstances of this case the opposing medical views were clear cut and differed on precise issues ... In their evidence each doctor gave reasons for the opinion which he held. The choice between the conflicting experts involved a matter of judgment rather than detailed reasoning.... In my opinion had the Tribunal merely said that it preferred one body of medical opinion to the other it would not have failed to state reasons for its decisions.  By stating its preference for a particular expert opinion it would have disclosed its reasoning process leading to the findings of fact based on the accepted opinion". (Emphasis added)

     The particular clear-cut conflict in substance between the experts, in the present case, is that Doctors Hughes and Olsen took the view that the degenerative condition
explained the continuance of pain, whereas the respondent's evidence, was that she was asymptomatic as at the time of the 1980 incident.

(2)  The above approach is appropriate because the AAT was constituted by an experienced expert medical practitioner who is entitled to bring his expertise and professional experience to bear on the medical question for decision.

(3)  The fact that the doctors, whose evidence was preferred by the AAT, were apparently not aware of the pre-1980 complaints, nor of the 1984 accident, is not material. What occurred on 30 July 1980, did not preclude a finding that what happened on that date was a permanent aggravation. There was evidence that the respondent was asymptomatic as at the date on which the incident occurred in July 1980. There is not enough material available to justify a conclusion that the pre-1980 history disclosed anything of significance.

(4)  The pattern of work attendance and non-attendance is not material. There were periods when the respondent took sick leave rather than claim compensation. Therefore the relevance of the attendance record related to the subject matter of compensation is uncertain.

(5)  The AAT had evidence before it of the respondent's history of disability and treatment and the results of that treatment after 1988. It is submitted that the pattern of attendance also assists the respondent's case.

This Application

This Court is not concerned in the present application with whether there was an obligation to give reasons, make findings or refer to the evidence or material on which those findings were based. Such an obligation is expressly imposed on the AAT by s43 of the AAT Act.

Rather, the issue is whether the statutory requirements have been complied to an extent sufficient to satisfy the requirements of the section.

The observations of von Doussa J in Vasili (supra) support the conclusion that, where the opposing medical views are clear-cut and differ on precise issues, merely stating a preference can be sufficient to disclose the reasoning process leading to the findings of fact based on the opinion.  However, in the present case the differences are not clear-cut because the doctors whose evidence was preferred, did not refer to the pre-1980 history, nor to the car accident in 1984.  These matters call for considered expert opinion and some analysis by the decision maker. They cannot simply be ignored. The conflict is between the two doctors relied on by the APC who were aware of these matters and other doctors who were not. The records containing this information were only obtained on the hearing. The only witnesses who gave oral evidence were the respondent, her husband, Dr Olsen and Dr Hughes.

In Commonwealth of Australia & Anor v Borg (1994) 20 AAR 299 at 303-309 Jenkinson J said:

          "The written reasons of the Tribunal for its decision afford a narrative account of the relevant events and of the substance of some of the medical opinion evidence before the Tribunal. The narrative is so expressed as to expose the conflicting expert opinions on the question which the Tribunal considered critical to the determination of the review.  The reasons do not explicitly state those questions as to which the Tribunal considered to be critical, but the expression of the Tribunal's conclusions, considered in the light of the preceding narrative, enable the questions to be identified with confidence. The only criticism which might be made of the document is that it does not explicitly indicate reasons for preferring one expert witness to another. But those reasons can be inferred from the whole content of the document. In my opinion this ground fails." (Emphasis added)

In the present case, it is not in my view, open to infer the reasons from the decision read as a whole. Hence the decision in Borg is distinguishable.

The AAT is, of course, only required to disclose its reasons and findings in relation to issues of significance in the case before it. In the present case, it cannot be said, that the
issues raised by APC in relation to the pre-1980 history and the 1984 accident, the pattern of work attendance and the internal conflict in the decision itself in relation to the claimant's capacity to work, are devoid of significance. In Telstra Corporation Limited v Arden (1994) 20 AAR 285 at 296 Burchett J said:

          "... I am satisfied it was open to the Tribunal to see them [the hospital notes] as quite unimportant, and as providing very little assistance in the resolution of the questions before it... Valid reasons do not require to refer to an aspect of six volumes of material which it is open to the Tribunal to regard as lacking significance. I think it was open to this Tribunal so to regard these notes. It was entitled to prefer the evidence of Miss Arden and the opinions of her psychiatrists, and simply to say so."

That decision proceeded on the basis that in his Honour's view the material, said to have been overlooked, could properly be regarded as lacking significance. That is not so in the present case.

The broad principles which underlie the proper approach to a determination of sufficiency of reasons, the adequacy of findings, or the sufficiency of references to evidence or material before the decision-maker, were summarised by Sheppard J in Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88:

          "The tribunal's reasoning process is not disclosed... The provision of reasons is an important aspect of the tribunal's overall task. Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal's conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. ... The provision of reasons engenders confidence in the community that the Tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration... An obligation to give reasons imposes upon the decision-maker an intellectual discipline. The tribunal is required to state publicly what its reasoning process is. This is a sound administrative safeguard tending to ensure that a tribunal such as this properly discharges the important statutory function which it has."

Approach

It is clear that s43 is not to be construed with a pedantic eye but in a practical common sense way in order to determine, in substance, whether the decision conveys sufficient of the decision making process to enable the parties and other interested persons to properly understand it. Where the reasons expose the logical process underlying the decision and contain findings on matters of fact essential to that reasoning process, then as Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691:

          "... it will not be easy to demonstrate a failure of compliance with the requirements to include 'findings on material questions of fact'".

It is also important to bear in mind that where a question arises as to whether the above requirements have been satisfied, particularly in the case of an administrative review body, constituted by an expert, a court should apply caution when determining whether the reasoning, findings or evidence are adequate. This is because the question as to the sufficiency of reasons, as opposed to the need for them and the sufficiency of the findings is one of degree. In the present case the question, to a large extent, calls for an exercise of judgment, which cannot be specifically tied down to precise and detailed reasoning.

It is also appropriate to bear in mind the observations of Lockhart J in Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029 at 5032 that the Court should not construe the AAT's reasons minutely and finely with a keen eye attuned to the perception of error. The Court should rather approach its task sensibly, in a balanced way, so as to be careful not to read passages from the reasons for decision in isolation from others to which they may be related, thereby taking them out of context. The question is essentially one of substantial compliance. See Opitz v Repatriation Commission (1991) 29 FCR 50 at 61 per Hill J.

Conclusion

Notwithstanding the above considerations, in the present case, it is evident from an examination of the decision that the reasons and findings are not exposed, nor has the relevant evidence been adverted to, analysed or discussed. Such a process does not necessarily involve a long and tedious exercise. An outline of grounds, findings and evidence may be sufficient in a case such as the present. However, this has not been done.

In substance, the submissions of the respondent do not point to any reasoning process, but rather ask this Court to infer from the evidence before the AAT and from argument before this Court, that the conclusion of the decision-maker was correct in the end result. The decision may or may not as a matter of fact or law reach the right answer having regard to the substance and merits of the matter. However, that is not the question.  The difficulty with the decision under appeal is that the reasons, findings, references to evidence or materials required by the section have not been embodied in the decision with the result that it fails to properly convey to the parties an understanding of the way in which, and the basis on which, the result was arrived at.

Accordingly, in my view, the AAT have not complied with the requirements of s43 of the AAT Act.

The failure to comply with those requirements is an error of law and accordingly the matter should be remitted to the AAT for decision in accordance with law.

I will hear the parties on costs.

I certify that this and

the preceding twenty (20)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date:                               26 February 1996                         

Counsel for Applicant:              Mr G Johnson                                         

Solicitor for Appellant:                  Australian Government Solicitor

Counsel for Respondent:             Mr R H Taperell                                      

Solicitor for Respondent:           Baker Love

                                    Ms B Cantle

Date of Hearing:                    12 February 1996                               

Date Judgment Delivered:                  26 February 1996