James Rossetti v SAS Trustee Corporation

1. [1]

   HER HONOUR: The applicant appeals a determination of the Police Regulation (Superannuation) Act 1906 (NSW) (“the Act”).

2. [2]

   The applicant seeks an order that the determination of the respondent dated 11 August 2014 be set aside and replaced with an order of this Court that the applicant was incapable, from an infirmity of body or mind, of discharging the duties of office at the time of his resignation on 6 May 1994.

3. [3]

   The applicant relied upon his three affidavits sworn 18 May 2015, 7 August 2015 and 19 October 2015 (Ex D), the affidavit of Nicola (Nick) Tranchini dated 28 July 2015 (Ex B), the affidavit of Belinda Maree Rossetti (the applicant’s wife) dated 28 July 2015 (Ex C), the affidavit of Neville Reid dated 13 September 2016 (Ex E), two affidavits of Charles Finlay-Jones dated 25 July 2016 and 19 August 2016 (Ex F), the affidavit of Stuart Gray dated 20 March 2017, and the applicant’s Court Book. (Ex A). The respondent relied upon its Court Book. (Ex 1). The applicant, the applicant’s wife, former police officer Mr Reid and physiotherapist Mr Finlay-Jones gave evidence and were cross examined.

4. [4]

   On 15 March 2017, this matter was referred to me by the list judge pursuant to Schedule D, Part 3, para 4 of the Supreme Court Rules 1970 (NSW).

Background

1. [5]

   The applicant was born in 1964. From 3 January 1988 until 25 March 1988, he attended the Goulburn Police Academy.

2. [6]

   On 25 March 1988, the applicant joined the New South Wales Police Force and commenced general duties at Maitland Police Station. He remained there until 1992.

3. [7]

   In 1992, the applicant was transferred to general duties at the Hamilton Police Station and remained there until 6 May 1994.

4. [8]

   From 3 December 1992 until 8 December 1992, the applicant was absent from duties as he had sprained his ankle. This injury did not occur on duty. (Ex 1, p 19).

5. [9]

   During cross examination the applicant did not recall this earlier injury but did not dispute that it occurred as it is recorded in police sick leave records and a medical certificate was provided by his general practitioner Dr D’Costa. (T 45.1-4).

Ankle Injury – 10 December 1993

1. [10]

   On 10 December 1993, the applicant sustained an injury to his right ankle during a violent struggle with an offender at the scene of a domestic violence incident. As a consequence of this injury the applicant was transferred to the John Hunter hospital and received care from Dr Allison Miller. (T35.1-6) Dr Miller provided the applicant with a work cover certificate stating that he was suffering from a soft tissue injury of the right ankle. (Ex 1, p 6).

2. [11]

   On 10 December 1993, following the injury, the applicant submitted a claim for hurt on duty benefits to the New South Wales Police Department. (Ex 1, p 2-5).

3. [12]

   From 11 December 1993 until 2 February 1994, the applicant was absent from duties for a period of 53 days. The reason cited for his absence was his ankle injury. (Ex 1, p 19). The applicant provided WorkCover Authority medical certificates from Dr D’Costa in relation to his right ankle injury dated 11 December 1993, 17 December 1993, 7 January 1994, 21 January 1994, 28 January 1994 and 8 April 1994. (Ex 1, p 6-12). On 6 March 1994, Dr D’Costa provided the applicant with a medical certificate. This certified that the applicant would be unable to attend work from 6 March 1994 to 2 April 1994 as he was suffering from stress. (Ex 1, p 13). This last portion of leave was granted because the applicant’s daughter was seriously ill in hospital. It should be noted that this appeal does not relate to the applicant’s stress related injury.

4. [13]

   On 5 January 1994, 17 January 1994 and 16 February 1994, the assistant manager of the workers compensation section of the New South Wales Police Force wrote to the applicant approving his absence as a result of the injury sustained pursuant to cl 98(2) of the Police Act Regulation 2015 (NSW). (Ex 1, p 14-16).

5. [14]

   Dr D’Costa’s original clinical notes handwritten in abbreviations on cards are largely illegible. (Ex 2). However, the clinical notes indicate that the applicant attended Dr D’Costa on 11 December 1993, 17 December 1993, 7 January 1994, 15 January 1994, 21 January 1994, 25 January 1994, 28 January 1994, 11 February 1994, 8 April 1994 and 29 April 1994. Due to the illegibility of the notes, it is unclear as to the reasons the applicant attended appointments with Dr D’Costa. However, they align with the dates Dr D’Costa provided medical certificates in relation to the applicant’s right ankle.

6. [15]

   It was Dr D’Costa who provided the applicant the certificate issued on 8 April 1994 certifying the applicant as fit for duty. Dr D’Costa resides interstate. An affidavit of Stuart Gray was filed in court on 22 March 2017 set out the efforts made to contact Dr D’Costa. (T 135.10-13, 136.16-17).

7. [16]

   Stuart Gray deposed (Aff 20/03/2017) that:

8. [17]

   The applicant deposed (Ex D, Aff 18/05/2015) that:

9. [18]

   Overall, the applicant’s evidence is that he returned to work on restricted duties. (T 37. 45-47). During cross examination, the applicant stated he did restricted eight hour shifts. He confirmed that from February until April 1994 he had a supportive supervisor, Gary Roach and even when he was on restricted duties was allowed to attend hospital to visit his daughter. (T 38).

10. [19]

    The applicant’s direct supervisor Gary Roach (known as Papa Roach) died on 22 September 2003. This was prior to the plaintiff making an application for a superannuation pension. At the time the applicant was on restricted duties and so too was Mr Roach.

11. [20]

    The applicant’s wife, Belinda Maree Rossetti swore an affidavit and was cross examined. Her evidence is that the applicant was on crutches for about six to eight weeks and had a significant amount of time absent from work. She recalls that the applicant was in a lot of pain and that his ankle would often swell and they would need to ice it. (Ex C, [6]). Her evidence did not change during cross examination. (T 103.24-50).

12. [21]

    Mr Neville Reid, a detective who was stationed at Hamilton Police in 1993 provided an affidavit and was cross examined. Mr Reid stated that he most likely had not seen the applicant since at least 1999 or prior to that. (T 113.8-12). His evidence is that the applicant performed restricted duties after his ankle injury. (Ex E, [12]).

13. [22]

    In cross examination Mr Reid gave evidence that on more than one occasion he remembered that the applicant was doing restricted duties. His evidence is (T 121.19-27):

14. [23]

    I accept that Mr Reid’s evidence corroborates the applicant’s evidence that he was performing restricted duties after his right ankle injury, but he cannot specifically link the restricted duties to the date of resignation, 6 May 1994. (T 115.35-38).

15. [24]

    Between 8 April 1994 and 3 September 2001, the clinical notes record that the applicant did not consult Dr D’Costa, his general practitioner in relation to his right ankle. During cross examination, the applicant was asked how often he would go off sick or seek medical treatment and he replied that he would only seek medical treatment and go off work for a significant incident. (T 43.5-17).

The applicant’s resignation

1. [25]

   The applicant agreed that he stated in his notice of resignation that it was not due to his ankle injury but due to personal circumstances. He deposed (Ex D, Aff 18/05/2015) that:

2. [26]

   As it turns out, the advice the applicant says that he was given was incorrect. At the time, the applicant resigned because of his daughter’s ill health and his psychological and psychiatric state. He was later diagnosed with PTSD. (Ex 1, p 31).

3. [27]

   In cross examination the applicant gave the following evidence (T 46.48-50, 47.23-25):

4. [28]

   The applicant gave confusing evidence during cross examination regarding wearing his appointments.

5. [29]

   In cross examination the applicant stated (T 93-95) :

6. [30]

   The applicant’s oral evidence is that while he was hurt on duty he was not required to wear the appointments. However, once he was certified as fit for duty he was able to wear them but as he was undertaking station based duties he does not recall whether or not he did so.

7. [31]

   The oral evidence of Neville Reid shed light upon this confusion regarding the meaning of appointments when he explained (T 118.11-24):

8. [32]

   On 8 April 1994, the applicant submitted his resignation/notice of retirement from the New South Wales Police and nominated 6 May 1994 as his last day of employment. The reason provided for his resignation was ‘personal reasons’, not his ankle injury. The reason the applicant gave for his resignation was:

9. [33]

   On 28 April 1994, the applicant made an application for ‘payment of extended leave (long service leave) … due to resignation’. (Ex 1, p 18).

10. [34]

    Although the applicant did not resign due to his right ankle, he alleges that he had not yet recovered from that injury at the time of resignation. The applicant deposed (Ex D, Aff 18/05/2015):

11. [35]

    So far as the applicant and his wife and Mr Neville Reid’s evidence is concerned, Counsel for the respondent referred to Coote v Kelly; Northam v Kelly [2016] NSWSC 1447, where it was stated:

12. [36]

    The evidence between the applicant, his wife and Neville Reid accords with the medical records so I accept their evidence.

13. [37]

    After the applicant had left the police force, he and his wife did not have an income. The applicant then went to work for his uncle’s concreting business which he later took over. In 2012, the applicant closed the concreting business down. (Ex D).

14. [38]

    The applicant’s wife, Mrs Belinda Rossetti deposed (Ex C, Aff 28/07/2015):

15. [39]

    The applicant’s uncle, Nick Tranchini provided a statement dated 28 July 2015 (Ex B). He was not required for cross examination. Mr Tranchini deposed (Ex B Aff 28/07/2015 at [4]):

16. [40]

    Mr Tranchini says that he did not ask the applicant to do the heavier work and that the applicant performed the lighter work. He observed that the applicant would limp with his ankle and that he had trouble with uneven surfaces.

17. [41]

    I accept that the applicant undertook lighter concreting work due to the necessity of providing an income for his family, not because the injury to his right ankle did not cause him difficulty or pain. I accept the evidence of the applicant, his wife and uncle that his right ankle would swell, he would limp and at the end of the day he had to ice his ankle and take nurofen.

Issues for determination on appeal

1. [42]

   The issues for determination by the Court on appeal are narrow in scope. They are confined to whether the applicant was incapable from, an infirmity of body or mind, of discharging the duties of his office at the time of his resignation on 6 May 1994.

2. [43]

   I have already referred to Dr D’Costa’s clinical notes and medical certificates earlier in this judgment. In order to resolve the issues for determination, the medical evidence must be examined for the purpose of considering whether the right ankle injury hindered the applicant’s ability to carry out the role of a general duties policeman as at 6 May 1994.

3. [44]

   On 14 December 1993, the applicant commenced treatment with physiotherapist, Mr Finlay-Jones. (Ex A, p 90). The applicant was off work for 53 days from 10 December 1993 until 2 February 1994 due to his right ankle injury. This is a considerable period of time.

4. [45]

   On 5 April 1997, the applicant attended Mr Finlay-Jones. His clinical notes (Ex F) record a later injury to his right ankle:

5. [46]

   Mr Finlay-Jones deposed that after reviewing his clinical notes, it was his opinion that when he treated the applicant in 1997 it was for an exacerbation or flare up of the applicant’s right ankle injury that he had sustained in 1993. (Ex F, Aff 25/07/2016 [23]). However during cross examination (by telephone), Mr Finlay-Jones recanted this opinion by admitting that this was conjecture as he could not remember due to the time that had lapsed. (T 134.46-50).

6. [47]

   Mr Finlay-Jones deposed that the applicant had sustained a serious ankle injury and although the applicant’s condition did improve, it did not resolve completely with physiotherapy treatment as at 6 May 1994. (Ex F, Aff 27/07/2016 [9] and [12]).

7. [48]

   Mr Finlay-Jones’s evidence is that if the applicant’s duties “involved him running, walking for long distances and placing significant weight on his right ankle then he would have been unable to do such tasks in 1994 as at the last day he worked for the New South Wales Police Force.” (Ex F, Aff 19/08/2016 [5]). I accept Mr Finlay-Jones’s evidence as being truthful as it is supported by his contemporaneous clinical notes. Further, he freely admitted that his opinion that the injury of 1997 was an exacerbation of the applicant’s earlier 1993 injury to his right ankle was wrong.

Medical consultations that took place 16 years after the applicant’s resignation

1. [49]

   On 8 October 2010, the applicant attended Professor Ghabrial, an orthopaedic and spinal surgeon. The applicant reported that he had a continuing ache in his right ankle with pain. (Ex A, p 108). Professor Ghabrial opined that the applicant was not fit for activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven grounds, standing for lengthy periods or walking long distances. (Ex A, p 109).

2. [50]

   On 21 March 2011, the applicant consulted Dr David Maxwell an orthopaedic and spinal surgeon at the behest of the Pillar Committee. Dr Maxwell’s opinion differs from the other medico legal opinions provided. Dr Maxwell was of the view that a complication from a sprained ankle could be recurrent ankle inversions but the applicant did not have this complication. Dr Maxwell opined that on examination, the applicant’s right ankle was essentially normal. (Ex 1, pp 56-57).

3. [51]

   On 25 July 2011, the applicant consulted Dr John Sage an orthopaedic surgeon. Dr Sage noted the applicant had persisting anterolateral discomfort that stops him from running and that he has episodes where his ankle locks up. (Ex A, p 118). Dr Sage recorded that after the incident in 1993, the applicant required crutches for six weeks. Dr Sage further noted that while a certificate was given for the applicant to return to full duties, this was merely for the purpose of expediting his discharge from the Police Force. (Ex A, p 119).Dr Sage opined that the X-ray of 2010 showed ossification between the tibia and fibula indicating that the 1993 injury involved the interosseous ligament. Dr Sage is of the view that this fits in with the symptoms of the ankle injury being more prolonged and thus a more severe injury. (Ex A, p 121). Dr Sage concluded that the applicant’s ankle injury in December 1993 was a significant sprain and that this injury would have affected his capacity to work as an operational police officer when he resigned from the police force in May 1994. (Ex A, p 123).

4. [52]

   Drs Sage and Maxwell differ in their opinion as to whether or not the applicant suffered from ankle locking as a result of the right ankle injury in December 1993. Dr Sage opined that the locking would have been from the highly significant sprain of 10 December 1993. (Ex A, p 123). Dr Maxwell regarded the locking as merely stiffness. (Ex A, p 84). I prefer the analysis provided by Dr Sage.

5. [53]

   On 28 February 2012, the applicant consulted Dr Chris Harrington, an orthopaedic surgeon. Dr Harrington reported that the applicant presented with a substantial disability of his right subtalar joint which would be permanent. (Ex A, p 130).

6. [54]

   Dr Harrington was of the opinion that (Ex A, pp 132-133):

7. [55]

   On 10 December 2015, the applicant consulted Dr Anthony Lowy an occupational physician. Dr Lowy diagnosed the applicant as having a permanent internal injury of the structure within his right ankle with ongoing pain and disability. Dr Lowy opined that despite the passage of time, the applicant had an uninterrupted history of pain and disability with his right ankle. Dr Lowy is of the view that the applicant was and remains incapacitated for duties as a police officer with the New South Wales Police Force. (Ex A, p 176).

8. [56]

   On 31 October 2016, the applicant consulted Dr John Findeisen a rheumatologist. Dr Findeisen reported that it was extremely difficult for him to provide an accurate diagnosis for the applicant’s right ankle as at the time of his resignation as his assessment of the applicant was an historical assessment based on the history provided by the applicant. However, Dr Findeisen opined that there was little doubt that the ligamentous injury was severe given the applicant required six weeks on crutches and was limping for 12 months after the injury. (Ex A, pp 182- 183).

9. [57]

   While I take into account the long effluxion of time since the applicant’s right ankle injury, I prefer the opinions of Dr Sage, Professor Ghabrial and Dr Harrington to that of Dr Maxwell. These opinions express the same views as to the plaintiff’s disability and accord with the lay evidence of the applicant, his wife and uncle regarding the applicant’s problems with his right ankle.

The Statutory framework

1. [58]

   Section 88 of the Superannuation Administration Act 1996 (NSW) is vested with the jurisdiction to determine the applicant’s dispute. It reads:

2. [59]

   It is common ground that the appeal was lodged within the six month time period: s 88(2).

3. [60]

   Section 10 of the Act relevantly reads:

4. [61]

   Section 10B(2) relevantly reads:

Applicant’s superannuation application

1. [62]

   On 25 May 2010, the applicant applied to the respondent for an annual superannuation allowance pursuant to s 10B(2) of the Act. (Ex A, p 37).

2. [63]

   On 23 June 2010, the medical discharge coordinator of the Hurt on Duty Unit determined that the applicant had satisfied the legislative prerequisites pursuant to s 10B(2) of the Act as it applied to the applicant at the date of his resignation. (Ex A, p 54).

3. [64]

   On 17 February 2011, the respondent determined that the applicant’s application could not be given further regard until an independent medical examination was undertaken. (Ex A, p 53).

4. [65]

   On 26 July 2012, Police Superannuation Advisory Committee (PSAC) as a delegate of the respondent, determined that the applicant was capable of discharging his duties of office due to the infirmity of “injury to right ankle” in accordance with s 10B(2) of the Act. On 27 July 2012, the respondent notified the applicant in accordance with s 23E(1) of the Act. (Ex A, p 60).

5. [66]

   On 14 August 2012, the applicant notified the respondent that he disputed the determination of PSAC and served a notice of the dispute on the respondent pursuant to s 23E of the Act. (Ex A, p 61).

6. [67]

   On 7 August 2014, the respondent’s dispute committee determined the applicant’s dispute in accordance with s 67 of the Superannuation Administration Act 1996 (NSW). On 11 August 2014, the respondent wrote to the applicant notifying him that the dispute had been determined. The applicant received this notification on 18 August 2014. (Ex A, p 73).

7. [68]

   On 10 February 2015, in accordance with s 88 of the Superannuation Administration Act 1996 (NSW) the applicant filed proceedings in the Industrial Relations Court.

Submissions to the Police Superannuation Advisory Committee by the Pillar Committee (Ex A, p 81)

1. [69]

   On 12 October 2011, the Pillar committee received a complete copy of the applicant’s medical file from New South Wales Police. The file included the WorkCover certificate issued by Dr D’Costa clearing the applicant to return to full operational duties from 5 April 1994, one month before he resigned. (Ex A, p 96).

2. [70]

   The Pillar committee stated that the available evidence before it was that the applicant resigned from the Police Force because he no longer wanted to be a policeman and not because of his claimed right ankle infirmity. It stated that the application had continued to work in a physically demanding role as a concreter for the past 17 years, a job requiring him to be on his feet all day with no reported limitation related to his ankle. It contended that even if the applicant does experience some slight discomfort presently, at the time of his resignation there was no contemporaneous evidence of discomfort.

3. [71]

   On 15 June 2010, the applicant’s solicitors were provided with a copy of Dr Maxwell’s report for their comment. By letter dated 8 July 2011, the applicant’s solicitors advised that further medical evidence would be forthcoming to support the applicant’s claim. (Ex A, p 84). On 26 August 2011, the Pillar committee received a report from orthopaedic surgeon, Dr Sage. As mentioned earlier in this judgment, Dr Sage considered the applicant was not fit to perform general police duties as he could not run effectively. Dr Maxwell maintained his opinion that the applicant was fit for operational duties at the time of his resignation and stated that the emphasis Dr Sage placed on the locking of the applicant’s right ankle was just stiffness. (Ex A, p 84).

4. [72]

   After Dr Maxwell’s review, the Pillar Committee determined that the applicant should obtain a further specialist opinion from Dr Harrington. Dr Harrington also opined that the applicant’s right ankle was problematic. The Pillar committee’s recommendation states that the applicant resigned so he could start a pre-arranged job as a concreter. (Ex A, p 85). This is contrary to the evidence of the applicant, his wife and uncle which all state that only after the applicant resigned did his uncle offer him a job. It should be noted that neither the applicant, his wife’s or uncle’s evidence was before the Pillar Committee.

5. [73]

   The Pillar committee recommended that having regard to all the known circumstances of the case, there was an insufficient basis for the committee to be satisfied that the applicant was incapable of discharging his duties of office when he resigned. (Ex A, p 85).

Consideration

1. [74]

   The question this Court must ask itself is whether the applicant, as a former member of the Police Force was incapable of discharging the full duties as a general duties police officer as at 6 May 1994.

2. [75]

   Counsel for the applicant referred to Commissioner of Police v Industrial Relations Commission of New South Wales [2012] NSWCA 439 (Commissioner of Police). In Commissioner of Police, Beazley P identified the functions and duties of a police officer as distinct from the position itself. Her Honour stated at [94]:

3. [76]

   The applicant submitted that the Court, in determining the relevant duties the applicant was required to discharge as at 6 May 1994, should have regard to firstly, the specific duties the applicant was compelled to undertake; and secondly, the duties consequential to the functions of his position as defined by the Act.

4. [77]

   In Locker v SAS Trustee Corporation [2013] NSWIRComm 23 (Locker), Staff J at [77] stated:

5. [78]

   The applicant also submitted that the scope of what a general duties police officer entails needs to be considered. (T149.4-10). I agree that a general duties police officer such as the applicant undertakes tasks that may occur in an uncontrolled environment and may require speed, dexterity or the application of violence of a police officer.

6. [79]

   Senior counsel for the applicant submitted that the actual duties referred to in Locker v SAS Trustee Corp are the same as those performed by the applicant as at 4 May 1996. The applicant held the rank of Constable as at the date of his resignation. The applicant submitted that his duties were those of frontline policing having been transferred to Hamilton Police station in 1992 where he performed general duties and as such the applicant was at the behest or direction of his superior officers and was required and indeed compelled to assist senior officers in physical policing: see Morley v SAS Trustee Corporation [2007] NSWIRComm 90 (Morley) at [29]. As a general duties constable the applicant was therefore required to perform physical duties on a regular, if not constant, basis.

7. [80]

   The applicant distinguished Locker on the basis that in this case the applicant did take sick leave that was subsequently accepted as hurt on duty leave, as a result of his injuries to his right ankle and consequential disabilities. The applicant submitted that the facts in these proceedings differ from Morley and Locker based on the applicant’s rank and the fact that he was not on restricted duties at the time of resignation. While the applicant was not on restricted duties immediately prior to his resignation, his evidence which I accept is that his duties were station based. (T 37.41- 43).

8. [81]

   Staff J in Morley noted that the situation may well have been different if the duties of office were those of a general duties police officer. Counsel for the respondent referred to SAS Trustee Corporation v Daykin [2002] NSWIRComm 124, where Wright J President, Walton J Vice President and Peterson J, considered whether a police officer who had suffered a “short term incapacity” could seek access to superannuation. The Court stated at [24] and [27]:

9. [82]

   The respondent submitted that it would be dangerous to rely upon the opinions of Dr Lowey, Dr Harrington, Dr Findeisen, Dr Sage and Dr Maxwell as at the very earliest the applicant was seen in 2010. (T 158.46-50). Counsel for the respondent says that it would be incorrect to assume that because the applicant was incapable in 2010, he was incapable in 1994 and also there is limited contemporaneous evidence to deduce the state of the applicant’s right ankle during 1994. If I accept this submission, Professor Ghabrial’s views are similarly tainted by the effluxion of time.

10. [83]

    More importantly, when the applicant consulted Mr Finlay-Jones at the end of 1993 and into early 1994, he was of the opinion that while the applicant’s condition improved it did not resolve completely and at the conclusion of his treatment he walked with a slight limp, could not run or place any significant weight upon his right ankle. (Ex F). The contemporaneous evidence accords with the medical evidence of Professor Ghabrial and Drs Sage and Harrington. Also, as I stated previously, I prefer the medical evidence of Professor Ghabrial and Drs Sage and Harrington over that of Dr Maxwell. These doctors all consider the injury to the applicant’s right ankle as a long term problem. This view also accords with the evidence of the applicant, his wife and the applicant’s uncle. In my view the applicant has established an infirmity of the body via injury to his right ankle and was incapable of discharging his duties of a general duties police officer as at 6 May 1994.

Conclusion

1. [84]

   I am satisfied on the balance of probabilities that the applicant who resigned on 6 May 1994 was incapable from an injury to his right ankle, of discharging the full duties of a general duties constable as at the date of his resignation.

2. [85]

   I make an order that the determination of the respondent dated 11 August 2014 is set aside.

3. [86]

   I make an order that the applicant was incapable, from an infirmity of body of discharging the full duties of a general duties constable in the Police Force at the time of his resignation on 6 May 1994.

4. [87]

   Costs are discretionary. Normally costs follow the event. The respondent is to pay the applicant’s costs on an ordinary basis.

   1. (1)

      The determination of the respondent dated 11 August 2014 is set aside.

   2. (1)

      In accordance with s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) the applicant James Rossetti was incapable of discharging the duties of his office as a general duties police officer as at the date of his resignation on 6 May 1994 due to the infirmity of his right ankle injury.

   3. (1)

      The respondent is to pay the applicant’s costs on an ordinary basis.