Re Joanne Veronica Tallon v the Australian Telecommunications Commission Vg [1982] FCA 4 (18 January 1982)

FEDERAL COURT OF AUSTRALIA

Re: JOANNE VERONICA TALLON
And: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION
VG No. 139 of 1981
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers J.
Fox J.
Lockhart J.

CATCHWORDS

Workers' Compensation - Appeal from single Judge dismissing appeal from decision of Commonwealth Employees' Compensation Tribunal - Question of law - whether Tribunal failed to consider relevant question - employment not a contributing factor to the aggravation of deceased's second and fatal infarction - compensable first infarction not a contributory factor to the aggravation of second infarction - Question of fact.

Compensation (Commonwealth Government Employees') Act 1971 s.29; s.63; s.95.

HEARING

MELBOURNE
18:1:1982

ORDER

1. The Appeal be dismissed.

2. The question of costs be reserved.

DECISION

I have had the advantage of reading the reasons for judgment in this matter of Lockhart J. I agree with his reasons and his conclusion. However, there is one aspect of the matter on which I desire to make some observations.

I think it does appear that the Tribunal addressed itself to the correct question, namely, whether aggravation of the coronary disease from which the deceased was suffering on 4 March 1977 contributed to the death of the deceased on 2 October 1979. Apart from other indications that this is so I think it is involved in the statement of the Tribunal at para. 14, namely, "I have found as a fact that after the first infarction the deceased remained incapacitated for work. It does not necessarily follow from this that the work was a contributing factor in the death.". In this observation the Tribunal is to be understood as drawing attention to two factors, namely that the first infarction was work related and that its effects on the health of the deceased contributed to his incapacity to work thereafter. Therein the Tribunal recognises that it is a critical question whether those effects also contributed to the death of the deceased. But it points out quite logically that that question is not necessarily answered by pointing to the continuing effects between the onset of the first infarction and the death.

It was for the appellant to prove on a balance of probabilities that the effects of the first infarction adverse to the condition or operation of the deceased's heart contributed to his death. The appellant might have put her case on two grounds, first that the effects of the first infarction contributed to the onset of the second and fatal infarction, secondly, that no matter what was the cause of the second infarction it would not have had fatal effect but for the effects on the heart of the first infarction, or, that otherwise, in addition to the second infarction itself, those effects were a relevant factor contributing to the death. The Tribunal did not formally address itself to this second possible ground. It seems reasonably clear that this was because the case was fought on this basis.

The Tribunal appears to have treated the practical question of whether the second infarction was caused by the first as determinative of the ultimate question, whether the first infarction contributed to the death. Nevertheless the omission to deal specifically with the second possible ground does emerge as a ground of appeal in the grounds stated in the notices of appeal from the Tribunal to the Federal Court and from the decision of Keely J. to this Court, at least, in the last mentioned notice before it was amended. And if there had been evidence, which the Tribunal is not seen to have rejected, to the effect that it was probable that, no matter how the second infarction was caused, it was not itself the only factor causing death and that weakness of the heart resulting from the first infarction was also a factor contributing to the fatality, the decision of the Tribunal could not be seen to be satisfactory.

But there was no such evidence. There is no hint in the evidence of Dr. Padmanabajn that heart weakness supervening on the first infarction contributed to the fatal result of the second infarction. No such suggestion is formulated in the evidence of Dr. Stubbe in examination in chief. But in cross examination the following passage occurred:-

"I think this man developed heart failure increasingly after his first heart attack, is that right, I think that is right.

Yes?---I most certainly do not think anyone would argue the considerable first heart attack was (not) a material contributing factor of the heart failure subsequent and the second heart attack did not occur until his heart failure had got progressively worse, and if the heart failure that had got increasingly worse prior to the last heart failure, did not contribute to it, it means it had a jolly good chance of affecting the

outcome of the second heart attack.

I was coming to that aspect in a moment? --- I thought I would get it in first and have only argued about the last of my points relating to the two."

But to say that there is a "jolly good chance" of heart weakness supervening on the first infarction affecting the outcome of the second is far from saying that it was probable that it did. The doctor's statement was not taken up on behalf of the appellant. It remained isolated. Also, of course, the doctor had not ever seen the deceased. And the observation of Dr. Stubbe would have to take its place in a context in which the accepted evidence is that the first infarction was limited and there had been a good measure of recovery from it, whereas the second heart attack was a massive collapse affecting the interior wall of the left ventricle and the muscle from the base to the apex.

It was contended that the finding that the work related injury of 4 March 1977 contributed to the incapacity of the deceased to work between that date and his death must be taken as a finding that there was material physical injury to the heart as a result of the first infarction and that that injury, presumably in the nature of weakness of the heart, persisted and was present at the time of the second infarction and thereafter until death. The contention is that from these facts so found, the proper inference is that that heart weakness contributed to the death.

But that inference cannot be drawn merely from those facts as so found. The finding is consistent with the possibility that the contribution to the incapacity after the first infarction was psychological such as depression, or that such physical weakness as might have resulted from the first infarction was of a relatively minor degree. In such case having regard to the massive nature of the second infarction it could not, in the absence of medical testimony to that effect, be inferred that such weakness had any relevance to the death. It is this which explains what the Tribunal must have had in mind when it observed that the first infarction contributed to the continuing incapacity thereafter but that that did not necessarily mean that it contributed to the death.

Counsel for the appellant relied strongly on the decision in Conkey & Sons Ltd. v. Miller (1977) 51 A.L.J.R. But there are two points of distinction. In a sense it was the reverse of this case. There, the second infarction followed a massive rather than a limited infarction, and, of course, in that case there was unequivocal medical evidence that the work caused injury to the heart at the time of the first infarction was so great that, there being no recovery, another infarction, no matter what its immediate cause, would most probably, if indeed not certainly, be fatal.

It appears, therefore, that had the Tribunal specifically dealt with the second ground on which the appellant's case might have been put, inevitably, because of the absence of evidence to support that ground, the decision would have been that which the Tribunal did reach.

In this appeal, I agree with the conclusion expressed by Lockhart J, and his reasons therefor. I agree with the order he proposes.

This is an appeal from the judgment of a single Judge of this Court (Keely J.) who dismissed an appeal under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") from a decision of the Commonwealth Employees' Compensation Tribunal ("the Tribunal") rejecting a claim by Joanne Veronica Tallon ("the appellant") for compensation in respect of the death of her husband, Reginald Alfred Tallon ("the deceased").

The deceased was employed by the Australian Telecommunications Commission ("the Commission") and its predecessor, the Postmaster-General's Department, for twenty-four years before his retirement. Initially he was employed as a linesman and later as a linesman's supervisor.

He appeared to be in fair health until 1976 when he started to become very tired. He was admitted to Royal Melbourne Hospital and underwent an operation to remove a partial obstruction of a major artery in his neck. He returned to work but suffered from tiredness and giddiness. He was off work for about one month in January/February 1977 when he suffered an attack of bronchitis and shortness of breath. The bronchitis was diagnosed as chronic. He had suffered from bronchitis at least once before.

On 4 March 1977 whilst at work he suffered a myocardial infarction involving the inferior wall of the heart ("the first infarction"). He was admitted to the Royal Melbourne Hospital and discharged on 21 March 1977. He returned to work late in April 1977 but was very tired and experienced pains in the chest and stomach. He took anginine and inderal tablets and continued to suffer giddiness and some blackouts. He became depressed. He was retired from his employment on medical grounds on 29 June 1977 at the age of 65.

The deceased gave up smoking after the first infarction. For many years before then he smoked about one packet of cigarettes a day.

The deceased remained at home after he retired from his work. His health continued to deteriorate. He continued to suffer chest pains with increasing frequency, swelling of the legs and ankles and had difficulty breathing. The appellant had to prop him up in bed with pillows so that he could breathe. He was unable to breathe if lying prone. He experienced difficulty moving from room to room in his home without shortness of breath.

Whilst watching television on 15 September 1979 the deceased suffered a second infarction. It was a massive terminal infarction to the anterior wall of the left ventricle of the heart ("the second infarction"). The deceased was admitted to hospital but died there on 2 October 1979 at the age of 67 years.

The curial history of the matter is relevant. The deceased made a claim for compensation in respect of the first infarction. On 30 November 1978 it was determined by a Deputy Chief Delegate of the Commissioner for Employees' Compensation ("the Delegate") that the employment of the deceased was a contributing factor to the aggravation of the first infarction and that the Commissioner was liable to pay compensation to him to 11 January 1978 but that "any heart condition" or aggravation thereof suffered by him thereafter was not contributed to by his employment. The date, 11 January 1978, appears to have been chosen because it was then that the deceased was seen by Dr. Kay, a physician, who reported that it did not appear that the "nature of the work caused or aggravated the underlying condition of coronary sclerosis" and who recommended acceptance of liability; but said that the effects of the aggravation would have ceased within six months after the first infarction.

On 7 July 1980 the appellant made a claim for compensation in respect of the death of the deceased. On 13 November 1980 a Delegate of the Commissioner for Employees' Compensation ("the Delegate") determined that the deceased's death was not the result of the contraction of a disease or the aggravation thereof to which his employment contributed; and disallowed the appellant's claim.

Both these determinations were referred to the Tribunal for reconsideration under s. 63 of the Act. They were heard together by consent. Both parties were represented before the Tribunal by counsel.

Evidence was given before the Tribunal by the appellant, three witnesses called by her - Dr. J. L. Stubbe, a physician, Dr. P. R. Padmanabhan - a general practitioner and Mr. J. O'Neil, a supervisor with the Commission. The Commission called a physician namely, Dr. Kay to whom I have referred.

The documentary evidence included a statement by the deceased as to the work he was doing on 4 March 1977 when he suffered the first infarction, a medical history card of a Dr. Docherty - a former general practitioner, a report of Dr. J. Sullivan, now deceased - the Commonwealth medical officer who recommended the retirement of the deceased, salary and leave records concerning the deceased and records of the Royal Melbourne Hospital relating to the deceased.

It was not in issue before the Tribunal or before this Court either at first instance or on appeal, that the deceased suffered two infarctions and that the first infarction was work-related.

The Tribunal varied the determination of the Delegate made on 30 November 1978 by finding in effect that the appellant was entitled to compensation for total incapacity of the deceased until his death on 2 October 1979. The Tribunal affirmed the determination of the Delegate of 13 November 1980 namely, that the deceased's death was not the result of the contraction of a disease or the aggravation, acceleration or recurrence of a disease to which his employment was a contributing factor.

The appellant appealed from this lastmentioned decision of the Tribunal to this Court pursuant to s. 95 of the Act. An appeal to this Court from a decision of the Tribunal lies "on a question of law only": s.95. Keely J. dismissed the appeal and affirmed the Tribunal's decision. It is from this judgement that the appellant appeals to this Full Court.

The principal submission of the appellant is that the essential question for the Tribunal's decision was whether the first infarction, a work-related infarction, contributed to the deceased's death; that the Tribunal did not address itself to this question at all; but posed as the essential question whether the death from the second infarction resulted from the first infarction; and that this was a fundamentally different question; so that the Tribunal misconceived the primary issue which it was required to resolve.

It is true that the Tribunal did not expressly state in one sentence the essential or primary question which it had to decide; but a reading of the Tribunal's reasons as a whole establishes to my satisfaction that it did regard the question as being whether death resulted from an aggravation of a heart disease to which the employment was a contributing factor. In my opinion this was the correct question for determination by the Tribunal although it may be formulated in various ways, and with emphasis given at times to particular factual considerations.

Further, as the Tribunal heard the two references together, both determinations (30 November 1978 and 13 November 1980) and the request for the reference relating to the 13 November 1980 determination were before it. Indeed, the Tribunal took the course of varying the determination of 30 November 1978 in certain respects and affirmed the determination of 13 November 1980. The terms of the determination of 30 November 1978 as varied by the Tribunal and the terms of the determination of 13 November 1980 and of the request for reference were therefore plainly in the minds of the Tribunal when reaching its decision, and they posed the correct questions which the Tribunal was called on to decide.

Section 29 of the Act provides, for present purposes, that, in the event that an employee suffers "an aggravation, acceleration or recurrence of a disease" and that any employment of the employee by the Commonwealth was "a contributing factor" to the "aggravation, acceleration or recurrence" of the disease, and that a "total or partial incapacity for work of the employee" arises as a result therefrom the "aggravation, acceleration or recurrence" shall be "deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth". Section 5 of the Act defines "disease" as including "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development."

The Tribunal expressly referred to s. 29 in paragraph 14 of its reasons, so plainly the section was present to its mind.

It is true that the Tribunal commenced its discussion of the applicant's claim for compensation in respect of the death of the deceased by saying:-

"In deciding whether the death from the second infarct resulted from the first one this Tribunal is faced with a difficult task."

(paragraph 10). But the Tribunal was not stating this as the essential or primary question for its determination. The ultimate question was whether the employment contributed to the aggravation of the deceased's heart condition which resulted in his death and this was the question determined by the Tribunal.

It may be, as was submitted by counsel for the respondent that the question posed in paragraph 10 is in substance the same as the issue raised by the determination of 13 November 1980 and the request for reference to the Tribunal of 19 January 1981. However, I do not find it necessary to decide this. Indeed, the question postulated in paragraph 10 is very similar in form to the question approved by the High Court in Conkey & Sons Limited v. Miller (1977) 51 A.L.J.R. 582. Some of the facts in Conkey's Case are similar to the facts in this case, although others are materially different.

It is not difficult to find the reason why the Tribunal formulated the question in paragraph 10 in the terms it did. Keely J. said in his judgment that counsel for the respondent (who was junior counsel for the respondent in the appeal to this Full Court stated that the case was put to the Tribunal "wholly and solely on the basis of connection between the first myocardial infarct and the second myocardial infarct". Senior counsel for the respondent in the appeal before this Full Court said this also. Counsel for the appellant did not deny this. Indeed, a perusal of the transcript of the evidence of witnesses before the Tribunal, including questions of counsel to witnesses on both sides, reinforces this statement as to the basis on which the case was conducted before the Tribunal. This attack on the Tribunal's decision fails.

The next submission of counsel for the appellant was that the Tribunal made a material finding inconsistent with the very evidence which the Tribunal accepted, namely the evidence of Dr. Kay, so that the Tribunal's determination must be set aside. The particular finding is in paragraph 8 of the Tribunal's reasons and is in these terms:-

"On all the evidence I am satisfied, on the balance of probabilities, that the deceased, who was approaching the age of retirement, was never again fit to return to work and that this incapacity was contributed to by the

work-related infarct."

In paragraph 14 the Tribunal said:-

"I have found as a fact that after the first infarction the deceased remained incapacitated for work. It does not necessarily follow from this that the work was a contributing factor in the death."

It is common ground that the first sentence from the passage quoted from

paragraph 14 is a reference to the passage quoted from paragraph 8.

The Tribunal accepted the evidence of Dr. Kay and preferred it to the evidence of the other doctors who gave evidence.

Although it is rather tedious I think it necessary to set out the findings of the Tribunal relating to the medical evidence. They are to be found in paragraphs 7 to 14 inclusive of the Tribunal's reasons and are as follows:-

"7. On 11th January 1978 the deceased was seen by Dr. Kay, who was of the view that the deceased had settled down quite well since leaving hospital. Dr. Kay reported that it did not appear that the 'nature of the work caused or aggravated the underlying condition of coronary sclerosis'. In answer to questions Dr. Kay recommended acceptance of liability but that the effects of the aggravation would cease within six months. It seems that it was on this basis that the deputy chief delegate of the Commissioner determined that the incapacity resulting from the infarction

ceased on the date of the appointment with Dr. Kay.

8. For the purposes of the claim by the executrix it is for Telecom to satisfy this Tribunal that the incapacity resulting from the infarction had in fact ceased by 11th January 1978. Dr. Sullivan, who saw the deceased and recommended retirement in the previous June, was plainly of a different view from Dr. Kay; he did not recommend a further medical review but outright retirement. On all the evidence I am satisfied, on the balance of probabilities, that the deceased, who was approaching the age of retirement, was never again fit to return to work and that this incapacity was contributed to by the work-related infarct.

9. Accordingly, the claimant, as executrix of the deceased's will, is entitled to compensation for total incapacity until the death of the deceased in September 1979.

10. In deciding whether the death from the second infarct resulted from the first one this Tribunal is faced with a difficult task. The general practitioner, Dr. Padmanabhan, was a hesitant witness largely because it appeared he did not regard himself as having the care of the deceased's heart condition. In other cases in this Tribunal both Dr. Stubbe and Dr. Kay have been seen to be somewhat more predictable than some other medical specialists in their approach to matters of scientific knowledge and opinion as they relate to work stress and coronary disease. It is unfortunate that those charged with making initial determinations and those preparing claims for reconsideration by this Tribunal seem to place total reliance on medical referees whose views tend to be predictable. This is particularly so in a case such as this where there is an absence of lay evidence from which a conclusion can be drawn by a commonsense person uninstructed in pathology (Adelaide Stevedoring Co. v. Forst [1940] HCA 45; (1940) 64 C.L.R. 538).

11. Dr. Stubbe felt that the deceased's employment contributed to his death. He believed, from known blood pressure readings and the weight of the heart at autopsy, that the deceased was materially hypertensive. The second and fatal heart attack in 1979 resulted from the first because of the damage done to the heart by the 1977 heart attack; there was a direct relationship between the first heart attack and the second.

12. Dr. Kay was of the view that there was immediate healing after the first infarction; the deceased finished with a scar with a compensating situation; the two infarctions were in different parts of the heart and he could see no relationship between the 1977 infarct and the 1979 infarct.

13. Dr. Padmanabhan was involved in the deceased's retirement in June 1977 because Dr. Padmanabhan felt the deceased was not in a position to continue to work. In his view an infarct could contribute to subsequent cardiac failure but did not necessarily do so in every case. The fact that the deceased had had a heart attack made him more liable for yet a second. The deceased had been a heavy smoker and suffered from bronchitis.

14. The aggravation at work which was related to the first infarction took place on 4th March 1977. This death took place on 2nd October 1979 when he was 67 years old; he had smoked about a packet of cigarettes a day up to his first infarction. I have found as a fact that after the first infarction the deceased remained incapacitated for work. It does not necessarily follow from this that the work was a contributing factor in the death. Dr. Padmanabhan said that the deceased was visiting the cardiology unit in the Royal Melbourne for his heart, 'he came to me either for repeat medications or other complaints unrelated to the heart attacks'. The Royal Melbourne records do not indicate continuous intensive treatment but rather support the conclusions of Dr. Kay, who examined the deceased in January 1978, that the deceased settled down quite well after leaving hospital. Notwithstanding my reservations about Dr. Kay's predictability, I have concluded that the evidence of Dr. Kay is in accord with the other known facts and find the medical facts in accordance with this evidence. Whether or not Dr. Kay directed his mind to the correct test under s. 29 for the purposes of his report to the Commissioner, the questions put to him in evidence were clearly directed to the proper test. Accordingly, the claimant's claim in respect of the death fails."

In my opinion, Dr. Kay's evidence is not inconsistent with the two passages

from paragraphs 8 and 14 of the Tribunal's reasons which I set out earlier and which are challenged by the appellant. There was ample evidence before the Tribunal to justify the conclusion that the deceased was suffering from heart disease which manifested itself in the first infarction; that the deceased's health then deteriorated further - tiredness, giddy spells, blackouts, and pains in the chest and stomach; that he was depressed, possibly because of the psychological reaction to the first infarction and because he was taking anginine and inderal tablets after the first infarction. As it was common ground that the first infarction was work-related, the conclusion of the Tribunal that the deceased was never again fit to return to work and that his incapacity was contributed to by the first infarction, plainly finds support from the evidence. But it does not follow that there was a necessary relation between the first infarction in 1977 and the second infarction in 1979. The essence of Dr. Kay's evidence is that the two infarctions were in different parts of the heart; that the part of the heart damaged by the first infarction healed leaving "a scar with a compensating situation", and that the two infarctions were not related.

The evidence is capable of supporting the conclusion that the deceased suffered from a heart disease before the first infarction, that the disease caused the first infarction, continued to worsen and ultimately led to the second fatal infarction. The two infarctions may or may not have been related; the deceased's employment contributed to the first infarction; but not necessarily to the second. Dr. Kay's view was that the two infarctions were not related. The Tribunal preferred his evidence. Its conclusion was justified.

Hence there is no inconsistency between the Tribunal's finding in paragraphs 8 and 14 and the evidence of Dr. Kay.

Counsel for the appellant submitted that the Tribunal "failed or failed properly to consider the medical evidence available according to its credibility by reference to actual facts." Counsel placed particular reliance upon the statement by the Tribunal in paragraph 10:-

"This is particularly so in a case such as this where there is an absence of lay evidence from which a conclusion can be drawn by a commonsense person uninstructed in pathology. . . "

Counsel submitted that there was lay evidence, namely the evidence of the appellant, as to the onset of symptoms of cardiac failure of the deceased and that the Tribunal did not refer to this evidence or accept or reject it and therefore erred in concluding that there was no lay evidence to corroborate the medical evidence.

I am satisfied that when paragraph 10 is read as a whole the Tribunal said that it preferred the evidence of Dr. Kay to the other doctors who gave evidence, and accepted that the first infarction did not contribute to the second infarction and in that way to the death of the deceased. The evidence of the appellant as to the deceased's deteriorating health before the second infarction, which I have referred to earlier, supports the conclusion that the deceased died of coronary disease which led to the second infarction but it does not establish that the two infarctions are casually related.

It was the absence of lay evidence touching the nexus, if any, between the two infarctions that the Tribunal had in mind in the passage from paragraph 10 relied on by counsel for the appellant. Indeed, the nexus, if any, between the two infarctions plainly was to the forefront of the Tribunal's mind when expressing itself in the terms it did in paragraph 10. This submission fails.

Counsel for the appellant submitted that the Tribunal wrongly preferred Dr. Kay's evidence to the evidence of the other doctors. My earlier analysis of the evidence sufficiently disposes of this submission. Plainly the Tribunal was entitled to accept Dr. Kay's evidence. Indeed, the statements by the Tribunal that the Royal Melbourne Hospital records support the conclusion of Dr. Kay and that the evidence of Dr. Kay is "in accord with the other known facts" are well founded. The hospital records were in evidence before the Tribunal but were not reproduced in the appeal book in this appeal. However, I have perused them and, in my view, they support the Tribunal's conclusions expressed in paragraph 14.

Counsel for the appellant submitted that the Tribunal failed to state the material facts on which it based certain of its conclusions and thus did not comply with the requirements of s. 84 (2) of the Act which provides that the Tribunal "shall give reasons in writing for its decision and those reasons shall include its findings on material questions of fact".

In particular, it was submitted, that although reference was made by the Tribunal to the "absence of lay evidence from which a conclusion can be drawn by a commonsense person uninstructed in pathology. . . " (paragraph 10) and "Notwithstanding my reservations about Dr. Kay's predictability, I have concluded that the evidence of Dr. Kay is in accord with the other known facts and find the medical facts in accordance with this evidence" (paragraph 14), the Tribunal failed to set out the relevant facts or evidence on which it based its conclusion.

I agree that it would have been better if the Tribunal's reasons contained a fuller and more concise statement of the facts and evidence; but I do not think that this omission constituted a failure to comply with s. 84 (2). When the evidence referred to by the Tribunal is read together with other evidence in the case which was not seriously in dispute, it seems to me to put to rest any challenge to the correctness of the Tribunal's findings. I am satisfied that the Tribunal had the relevant evidence in mind when it reached the conclusions expressed by it.

Counsel for the appellant criticised the language employed by the Tribunal in varying the determination of 30 November 1978 by deleting paragraph 1 (b) and substituting other words; but this order was not the subject of the appeal to this Court. The change made was to substitute the following words:-

"1 (b) Any heart condition suffered by the deceased causing incapacity for work or necessitating medical treatment is the result of contribution by his employment to the contraction, aggravation, acceleration or recurrence of a disease."

and to delete paragraph 2 (c) and substitute therefor the following:-

"2 (c) Any heart condition suffered by the deceased causing incapacity for work or necessitating medical treatment prior to his death was the result of contribution by his employment to the contraction, acceleration or recurrence of a disease;"

It is the use of the word "Any" before the words "heart condition" that was the subject of criticism. The same criticism was made before Keely J. who dealt with it fully and rejected it. I agree with what his Honour said, in particular, his conclusion that the Tribunal took the words of the decision of the Delegate of 30 November 1978 and altered certain words to give effect to its view; but did not find it necessary to delete the word "Any" which appeared in the Delegate's decision.

This criticism by the appellant is illustrative of certain difficulties which have arisen in this case because the Tribunal took the course of hearing the two references together. I do not criticise the Tribunal for taking this course. It was done by consent and doubtless was convenient to the parties and to the Tribunal itself; but by merging the reasons in respect of the two references, distinctions which exist between them have sometimes become blurred.

Before parting with the matter I should say that it has not been submitted in this case before the Tribunal, Keely J. or this Court that the Tribunal had no power to vary the Delegate's determination of 30 November 1978 as it did.

I would dismiss the appeal. As to costs, the respondent did not ask for an order for costs in the event that the appeal would be dismissed. This may be because it thought that in all the circumstances it would not be appropriate for the Commonwealth to ask for costs against the appellant. The question of costs should be reserved.