Sharley v Repatriation Commission

REASONS FOR JUDGMENT 1 This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 28 June 2010. In that decision, the Tribunal partly affirmed an earlier decision of the Veterans' Review Board ("the Board"), which had, in turn, affirmed a decision of the respondent, the Repatriation Commission ("the Commission"), in relation to a number of disability pension claims made by the applicant, John Douglas Sharley, under the Veterans' Entitlements Act 1986 ("the VE Act"). 2 During a period of service in the Royal Australian Air Force which extended from 8 June 1965 to 7 June 1971, the applicant was on operational service in South Vietnam for about 11 months commencing on 25 February 1970. His disability pension claims related to that service. As claimed, his disabilities were post-traumatic stress disorder, bi-lateral sensorineural hearing loss, tinnitus, diabetes mellitus, osteoarthritis of the knees, lumbar spondylosis and gout. By the time these claims reached the Tribunal, only those in respect of post-traumatic stress disorder and osteoarthritis of the knees remained controversial: the others had been either accepted by the Commission, held to be war-caused by the Board or abandoned by the applicant. Both of those remaining claims had been rejected by the Commission, and that rejection had been affirmed by the Board. 3 The formal decision disposing of the proceeding before the Tribunal, pronounced on 28 June 2010 (as uncontroversially amended on 11 August 2010) was as follows: The Tribunal affirms the decision under review, relating to Post Traumatic Stress Disorder (PTSD). The Tribunal determines that the applicant suffers from war-caused Alcohol Dependence in partial remission. The claim for osteoarthrosis of both knees is remitted to the Repatriation Commission for reconsideration on different grounds as outlined in this decision. Both aspects of this decision are challenged in the present appeal. 4 By s 13(1) of the VE Act - Where: … (b) a veteran is incapacitated from a war-caused injury or a war caused disease; the Commonwealth is, subject to this Act, liable to pay: … (d) in the case of the incapacity of the veteran - pension by way of compensation to the veteran; in accordance with this Act. 5 Whether an injury or disease was "war-caused" is the concern of s 9(1) of the VE Act, which relevantly provides that - … an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war caused disease, if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; … but not otherwise. By s 7(1)(a) of the VE Act, "a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service". The applicant's circumstances did, therefore, fall under both para (a) and para (b) of s 9(1). 6 The provisions of s 120 of the VE Act deal with the standard of proof which must be applied when the Commission comes to decide whether a particular injury or disease was war-caused within the terms of s 9(1). Relevantly to the present proceeding, s 120 provides as follows: (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, [or] that the disease was a war-caused disease …, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. …. (3) In applying subsection (1) … in respect of the incapacity of a person from injury or disease … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; … as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury [or] disease … with the circumstances of the particular service rendered by the person. (4) Except in making a determination to which subsection (1) … applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, … decide the matter to its reasonable satisfaction. 7 In the circumstances of the applicant's claim, the operation of s 120(3) of the VE Act is affected by s 120A(3), which provides as follows: For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person [or] a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) … that upholds the hypothesis. For present purposes, it is not necessary to consider the terms of s 196B(2) of the VE Act: it is sufficient to note that there was a relevant Statement of Principles that the Tribunal would, had it not decided the case in the manner to which I refer below, have been obliged to consider. 8 In Repatriation Commission v Deledio (1998) 83 FCR 82, 97-98, the Full Court set out the course which the statutory provisions referred to above obliged the Tribunal to take in a case to which they applied: 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196b(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196b(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. In the present case, the Tribunal referred to these steps, as they have been called, and no issue arises as to the correctness of them. 9 In its decision of 28 June 2010, the Tribunal commenced by identifying the issues that arose for resolution. They were, first, did the applicant suffer from a psychiatric condition, and, if so, what was the appropriate diagnosis; secondly, did the applicant have clinically significant osteoarthritis of the knees; and thirdly, were both of those conditions war-caused? The Tribunal then canvassed the evidence in the case, both lay and medical. With respect to post-traumatic stress disorder, there had been a conflict of medical evidence. The applicant's treating psychiatrist gave evidence that the applicant was suffering from post-traumatic stress disorder. The psychiatrist called by the Commission, however, said that that diagnosis was not sustainable, and opined that the applicant's alcohol dependence, which had developed during his period of service, was the explanation for the symptoms which he displayed. 10 At the outset of the deliberative section of its decision, the Tribunal said: 74. Before proceeding to test the hypothesis in accordance with the Deledio steps the Tribunal must first determine, if possible, the diagnosis applicable to Mr Sharley's symptomatology or at least identify all of the symptoms (Re Mines and Repatriation Commission [2003] AATA 658). On the balance of probability and thus to the Tribunal's reasonable satisfaction Mr Sharley suffers from alcohol dependence in partial remission. Such a diagnosis encompasses all of his symptoms in the opinion of Dr Strauss and the Tribunal, having consulted DSM IV TR, agrees. The clinical onset of his alcohol dependence was in Vietnam in late 1970. 75. While DSM is not a statutory formulation the majority of psychiatrists providing reports on mental disorders for medico-legal purposes do so at least in part on the basis of the DSM classification of mental disorders using the criteria recommended by DSM. The RMA has based the diagnostic criteria of all mental disorder SoP's [sic] on those contained in the manual. In fact they have transposed word for word the text of DSM. In the case of post-traumatic stress disorder the stressors needed to found a diagnosis are also included in the diagnostic criteria (Gerzina v Repatriation Commission [2004] FCAFC 96). DSM IV TR includes in the section entitled substance related disorders, alcohol induced psychotic disorder with hallucinations (flashbacks are deemed to be an hallucination), alcohol induced mood disorder, alcohol induced anxiety disorder and alcohol induced sleep disorder. These additional alcohol induced mental disorders are not considered or been the subject of SoP's [sic] but at a diagnostic level explain Dr Strauss's opinion that all of Mr Sharley's symptoms are related to his alcohol dependence. 76. Having made this diagnosis of alcohol dependence in partial remission, the Tribunal excludes the alternative diagnoses of post-traumatic stress disorder and generalised anxiety disorder. That is to say, the Tribunal accepted the evidence of the psychiatrist called on behalf of the Commission that the applicant did not suffer from post-traumatic stress disorder. I shall say something presently about the other disorder referred to in para 76 of the Tribunal's reasons, namely, generalised anxiety disorder. 11 To the extent that the applicant challenged the disposition by the Tribunal of his pension claims in respect of psychiatric injury or disease, the questions of law raised in his second further amended notice of appeal are the following: 1. Whether the Tribunal failed to comply with secs 120 and 120A of the Veterans Entitlements Act 1986 (Cth) in determining whether the Applicant suffered from a war-caused condition of PTSD or the alternative psychiatric condition of Generalised Anxiety Disorder (GAD), in that the Tribunal ultimately failed to address the question whether the material before it was capable of establishing beyond reasonable doubt that there was no sufficient ground for determining: (a) That the injury or disease of PTSD, alternatively of GAD was a war-caused injury or a war-caused disease, respectively; (b) That no reasonable hypothesis was raised connecting the injury or disease of PTSD and/or GAD with the Applicant's circumstances of service. 2. Whether the Tribunal failed to apply the correct Statement of Principles ('SoP') in considering the Applicant's claims to have suffered PTSD and/or GAD, specifically SoP No. 3 of 1999 in respect of PTSD and No. 1 of 2000 in respect of GAD, in that: (a) It erred in logic in apparently assuming that suffering from alcohol abuse precludes a finding that an Applicant may also suffer PTSD or GAD; (b) Alternatively, having concluded that the Applicant did not satisfy the SoP No. 5 of 2008 for PTSD on the grounds that he had not experienced, witnessed or been confronted with an event that involved actual or threatened death or serious injury, the Tribunal then failed to consider whether the Applicant satisfied the provisions of SoP No. 3 of 1999 which was in force at the time of his application for an increase in pension if it was more beneficial to the veteran, as directed by the Full Federal Court in Repatriation Commission v. Keeley (2000) 98 FCR 108. 3. Whether the Tribunal failed to comply with its statutory duty under Section 43 of the AAT Act and at law as required by the Full Federal Court in Dornan v Riordan (1990) 24 FCR 564 to provide adequate reasons for its decisions : (a) That the Applicant did not suffer from the injury or disease of PTSD and/or GAD; (b) If the Tribunal did find that the Applicant suffered from either or both PTSD and/or GAD, that they were not war­caused; (c) That because no actual attack occurred, despite his being in a position where he subjectively did fear for his life, and a reasonable person in his position might have so feared, therefore, this could not be an event he "experienced, witnessed or was confronted with that involved actual or threatened death or serious injury" which constituted a Category 1A stressor as set out in the Statement of Principles No. 5 of 2008 for PTSD or, alternatively, in the earlier Statement of Principles for PTSD No. 3 of 1999 as amended by No. 54 of 1999, and in the sense contemplated by the Full Court in Woodward v. Repatriation Commission (2003) 200 ALR 332. 4. Whether the Tribunal failed to apply the correct legal test in considering the claim that the Applicant had suffered war­caused osteoarthritis of his knees in that: (a) By determining that the trauma to his knees did not meet the requirement in the relevant SoP, so that "step 3 of Deledio is not satisfied as the definition of trauma to the affected joint is not met", this constitutes impermissibly engaging in fact finding when looking at the hypothesis, or third stage of the Deledio test, rather than when considering the fourth stage of that test, which is more beneficial to a veteran; (b) Having remitted to the Respondent pursuant to Section 38(1) of the AAT Act, the question whether the Applicant's osteoarthritis of his knees might be found to be war­ caused pursuant to factor 6(n)(i) of the SoP No. 5 of 2010, on the basis of his being overweight for at least ten years before the clinical onset of osteoarthritis in the knee joints, and the Respondent ultimately re-affirming its decision to reject such claim, the Tribunal then failed to give any consideration to the Applicant's claim on this basis whether according to the Deledio test or at all. 12 The basis of the Tribunal's rejection of the applicant's claim for a pension with respect to what he alleged was his post-traumatic stress disorder was the finding that he did not suffer from that injury or disease. That finding was governed by s 120(4) of the VE Act. Subsections (1) and (3) were not, at that level, invoked: Repatriation Commission v Bawden (2012) 206 FCR 296. For these reasons, questions 1 and 2, as set out in the applicant's second further amended notice of appeal, are not questions which arise from the disposition by the Tribunal of the applicant's case. 13 With respect to the applicant's post-traumatic stress disorder claim, that leaves only the point sought to be raised by question 3, namely, whether the Tribunal gave adequate reasons for its conclusion that the applicant did not suffer from that disease. By s 43 of the AAT Act, the Tribunal was required to "give reasons either orally or in writing for its decision", and, where the reasons are in writing, they "shall include [the Tribunal's] findings on material questions of fact and a reference to the evidence or other material on which those findings were based". 14 In Repatriation Commission v Hendy (2002) 76 ALD 47, 55, the Full Court said: Finally, with regard to his Honour's alternative finding that the tribunal failed to give adequate reasons for reaching the conclusions it did, s 43(2B) of the AAT Act requires that, 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. However, this is not a requirement that the reasons provide an unarguable logical progression to a conclusion. It will, in almost every case, be that alternative conclusions are possible based on the evidence and other material to which reasons refer. The fact that the tribunal may come to a conclusion contrary to that which the court or a tribunal differently constituted might come is not a reviewable error, so long as the reasons include the factors set out in s 43(2B) of the AAT Act. In Hill v Repatriation Commission (2004) 207 ALR 470, 476 [28], Mansfield J said: The requirement of s 43(2B) of the AAT Act is that the tribunal's process of reasoning be adequately exposed to indicate how the tribunal has gone about its task, and why it has reached its conclusion. It is a corollary of the requirement that the tribunal will adopt sound and proper legal reasoning. But s 43(2B) does not oblige the tribunal to correctly identify and apply the law. It aims to expose whether the law has been correctly identified and applied. See also Smith v Repatriation Commission (2012) 131 ALD 63, [61]-[62]. 15 Conformably with the authorities to which I have referred, I am satisfied that the Tribunal in the present case provided adequate reasons for its conclusion that it had not been established that the applicant suffered from post-traumatic stress disorder. The attempts, by counsel appearing on behalf of the applicant, to establish the contrary amounted to little more than a rehearsal of the factual - that is to say, mostly medical - evidence that was before the Tribunal. It is not the task of the court to review the Tribunal's decision-making at this level. Whatever may have been the absolute correctness of the Tribunal's findings of fact in relevant respects, it is quite clear what those findings were, and it is likewise clear why they were made. There was, in my view, no error of law of the kind sought to be raised by question 3 in the applicant's second further amended notice of appeal. 16 Counsel for the applicant sought to make something of the inclusion of the condition of "generalised anxiety disorder" in para 76 of the Tribunal's reasons. In the course of the hearing before the Tribunal, the psychiatrist called on behalf of the Commission said that he had diagnosed the applicant with "an alcohol dependence disorder". He said that the applicant presented as "an anxious and depressed man" and that "it would be reasonable to diagnose him with an anxiety disorder". He added that it was "a mixture of anxiety and depression really and [they have] been problems in recent years." In response to an inquiry from the Tribunal, the psychiatrist said: "I think probably a generalised anxiety disorder would be an appropriate diagnosis." As I understand his submission, counsel for the applicant would wish it to be taken that his complaint as to the inadequacy of the Tribunal's reasons extended to so much of para 76 as was inconsistent with this evidence given on behalf of the Commission. 17 Notwithstanding that the Tribunal made reference to generalised anxiety disorder in its reasons, the decision of the Board then under review relevantly related only to post-traumatic stress disorder. There is no suggestion that the applicant ever made, or had rejected, the proposition that he suffered from generalised anxiety disorder. No such suggestion was contained in the application for review as made in the Tribunal. It appears to have emerged only when the medical witnesses were giving their oral evidence. The decision of the Tribunal, the subject of the present appeal, affirmed the decision under review only to the extent that it related to post-traumatic stress disorder. In the circumstances, whatever shortcomings there might have been in the Tribunal's reasons with respect to generalised anxiety disorder as an entity in its own right, those shortcomings cannot be regarded as having infected the Tribunal's decision as such. In the circumstances, I do not think there is anything in the applicant's point that the way in which the Tribunal dealt with the question of generalised anxiety disorder involved an error of law. 18 For the above reasons, I would hold that there was no error on a question of law in the way the Tribunal reached the decisions encapsulated in the first two sentences of its record of decision as set out in para 3 above. 19 Quite different considerations apply to the applicant's challenge to so much of the decision as resides in the third sentence. As the parties' cases were presented in this court, it became clear that the Tribunal had erred in point of law, although not in respect of its decision to remit to the Commission the applicant's claim for a pension by reason of osteoarthritis in the knees. The applicant did challenge that decision, but ultimately the Commission accepted that this aspect of the case will need to be remitted to the Tribunal, in which circumstances I consider that it would be both fruitless and inappropriate to pursue what has become an artificial question whether the decision of 28 June 2010 was relevantly infected by an error of law. In order to illuminate the error into which the Tribunal has, on any view, fallen, it will be necessary to say something about the procedural course of the applicant's claim in the Tribunal, subsequent to the decision published on that day. 20 In the case of the applicant's osteoarthritis claim, the Tribunal did find itself within step three of the Deledio principles. Referring to the relevant Statement of Principles, the Tribunal said: Mr Sharley's claim was limited to Factor 6(g) concerning direct trauma to the joints. No evidence was led regarding Mr Sharley's weight. The Tribunal notes that the definition of being overweight means an increase in body weight which results in a body mass index (BMI) of 25 or greater. Mr Sharley's weight is recorded sporadically in the clinical notes of Dr Apsley and also in his medical service record. Following the diagnosis of diabetes in the year 2000 Mr Sharley was repeatedly advised by his general practitioners to lose weight. He had trouble doing so. The Tribunal asked him if he had lost weight during the uncontrolled phase of his diabetes prior to its diagnosis, but he indicated that his weight had been pretty steady over the years at around 79 to 80 kilograms. The Tribunal has estimated his BMI on several occasions where his weight is recorded. On enlistment to the RAAF in 1965 his BMI was 22. At the time of discharge in 1971 his BMI was 28.6. In June 2007 when he weighed 90 kilograms his BMI was 33 and currently in 2010 his BMI is 28. It thus appears likely that Mr Sharley could satisfy the requirements of SoP 13 of 2010 with respect to his osteoarthritis if more evidence was available in relation to the duration of his knee symptoms, their date of onset and his obesity relevant to the date of onset, that is, was he obese in terms of having a BMI greater than 25 for the 10 years prior to the onset of his knee pain. While he claims to have had some aching in the back and knees in the 1970s he has never complained of it to a doctor until the year 2007. He did and does consult a chiropractor. For these reasons the Tribunal remits the claim for osteoarthritis of the knees to the Commission for reconsideration and the obtaining of further evidence. 21 The remitter of the osteoarthritis aspect of the case by the Tribunal was done pursuant to s 42D of the AAT Act, the presently relevant provisions of which are as follows: (1) At any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person. Powers of person to whom a decision is remitted (2) If a decision is so remitted to a person, the person may reconsider the decision and may: (a) affirm the decision; or (b) vary the decision; or (c) set aside the decision and make a new decision in substitution for the decision set aside. …. (8) If the person affirms the decision, the proceeding resumes. 22 After an extension of time granted by the Tribunal on 9 December 2010, on 27 January 2011 a delegate of the Commission affirmed the Commission's original decision, expressing satisfaction beyond reasonable doubt that the applicant's osteoarthritis was not related to his operational service. That affirmation was notified to the applicant and the Tribunal on 8 February 2011. However, on 22 March 2011, the Tribunal made the following order: The Tribunal considers the respondent's statement dated 27 January 2011, which purports to set out the findings on material questions of fact, refer to the evidence and material on which those findings were based, and provide the reasons for the decision does not contain: 1. adequate particulars of findings on material questions of fact, or 2. adequate reference to the evidence or other material on which those findings were based, or 3. adequate particulars of the reasons for the decision. Therefore, in accordance with s 38(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders the respondent to lodge with the Tribunal on or before 22 April 2011 an additional statement containing further and better particulars with respect to the findings, evidence and material in relation to the respondent's decision regarding the applicant's claim for osteoarthritis of both knees. Conformably with that order, on 25 May 2011, the Commission provided further and better particulars of its decision of 27 January 2011. 23 The Tribunal subsequently directed the Commission, through its solicitors, to seek further information from general practitioners who had treated the applicant over the years. That request was made by correspondence dated 19 September 2011. A deal of material was received in response to that correspondence, and provided to the Tribunal on 13 October 2011. That was not, however, sufficient for the Tribunal's then purposes, which related to the question whether the applicant had been overweight for at least 10 years before the clinical onset of osteoarthritis in the joint in question. Accordingly, on 7 November 2011, the Tribunal requested the Commission's solicitors to contact a physician whom the applicant had consulted in the period 1997-2000. The solicitors did so, but the physician's response, dated 6 January 2012, took the matter no further. 24 There was a directions hearing in the Tribunal on 5 March 2012, but it does not appear what transpired on that occasion. Then, on 12 July 2012, the Commission's solicitors wrote to the Tribunal in the following terms: 1. We confirm, as advised in our letter of 8 February 2011, that the Respondent has affirmed the original decision to reject the part of the Applicant's claim that related to osteoarthritis of the knees. 2. We understand that Member Shanahan subsequently concluded that there was not sufficient evidence before the Tribunal to support a finding that the Applicant's osteoarthritis of the knees was a war-caused condition. 3. As the applicant has an application for review on foot in the Federal Court of Member Shanahan's substantive decision handed down on 28 June 2010, the parties wish to advise the Federal Court that proceeding AAT 2008/3920 has been concluded, in order that a procedural timetable can be set to determine the application for review in VID 635 of 2010. 4. We would appreciate your confirming that proceeding AAT 2008/3960 has been determined. 25 On 24 July 2012, the Tribunal wrote to the parties in the following terms: I refer to the letter from the respondent dated 12 July 2012. On the basis of this letter, the Tribunal now confirms that the above matter has been finalised and closed. 26 In these circumstances, it is accepted by the Commission that the Tribunal had unfinished business, in that it had not given final consideration to, and made a decision upon, the applicant's claim for a pension to the extent that it was based upon his osteoarthritis. The Commission having affirmed its original decision, it was required under s 42D(8) of the AAT Act that the proceeding resume. Although the proceeding did resume to the extent indicated above, the Tribunal has not made a decision in writing as required by s 43(1) of the AAT Act. Counsel for the Commission invited the court to make a remitter order under s 44(5) of the AAT Act, and I did not understand counsel for the applicant to resist that course. That seems clearly to be the appropriate course since the Tribunal's decision of 28 June 2010 did not, in relevant respects, conclude the matter before it. Once the matter has been concluded, an appeal will, of course, lie on questions of law under s 44 if one of the parties is disposed so to proceed and, if there are any dimensions of the decision of 28 June 2010 which carry forward to, and affect, the decision then recently made, I have no doubt but that it would be open to the parties to rely on them. 27 I recognise that the course proposed may not strictly conform with the scheme of s 44 of the AAT Act, in that I have not proceeded to the point of considering whether the decision under review (that of 28 June 2010) was relevantly infected by legal error. However, the course proposed was suggested by counsel for the Commission, and clearly would work no injustice for the applicant. Under s 44(4), the court is empowered to "make such order as it thinks appropriate", and I have no doubt but that I could exercise the jurisdiction given to the court to grant a remedy in the nature of mandamus under s 39B of the Judiciary Act 1903 (Cth). However, as I have said, there is no resistance by the applicant to the making of a remitter order under s 44(5), and that is the course which I propose to adopt. 28 I shall lay out a timetable for the parties to file and serve written submissions on the question of costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.