Re Repatriation Commission v Robert Stewart [1984] FCA 169 (2 July 1984)

FEDERAL COURT OF AUSTRALIA

Re: THE REPATRIATION COMMISSION
And: ROBERT STEWART
No. WA G17 of 1984
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Repatriation - pension - whether incapacity resulted from occurrence during special service or arose out of or was attributable to war service - haemorrhoid - aetiology known - lack of medical evidence as to particular cause - multiple lipomata - aetiology unknown - whether connection between disease and particular factor necessarily excluded - necessity to have regard to all evidence

Repatriation Act 1920 ss. 107M, 107VH

Repatriation (Special Overseas Service) Act 1962 ss. 6,7

HEARING

PERTH
2:7:1984

ORDER

1. The appeal be allowed to the extent that the decision of the Repatriation Review Tribunal dated 17 January 1984 that the Commonwealth is liable to pay to the respondent, in respect of his incapacity from multiple lipomata, the pension payable under Division 1 of Part III of the Repatriation Act be set aside and that matter remitted to the Tribunal to be determined according to law.

2. Liberty to apply as to the costs of the appeal.

DECISION

On 17 January 1984 the Repatriation Review Tribunal set aside a decision of the Repatriation Commission given on 25 February 1982 and substituted its own decision that:

"1. the Repatriation Commission's

rejection of the claim for
incapacity from presbyopia be
affirmed;

2. in respect of the possible further
eye incapacity from serous
retinopathy the proceeding be
adjourned pursuant to Section
107VZ;

3. on and from 25 November 1981, and
pursuant to section 6 of the
Repatriation (Special Overseas
Service) Act and section 107M of
the Repatriation Act, the
Commonwealth is liable to pay to
Robert STEWART in respect of his
incapacity from haemorrhoids and
multiple lipomata, the pensions
payable under Division 1 of Part
III of the Repatriation Act on the
incapacity of a Member of the
Forces".

2. There is no appeal from the Tribunal's decision relating to the claim for incapacity from presbyopia or the possible further eye incapacity. But the Repatriation Commission appeals against the decision of the Tribunal that there is a liability for incapacity from haemorrhoids and multiple lipomata. The notice of appeal identifies as the questions of law raised on the appeal:

"(i) Whether the Repatriation Review
Tribunal may find an entitlement
to pension payable under Section 6
of The Repatriation (Special
Overseas Service) Act 1962 and
Section 107M of The Repatriation
Act in the case of the incapacity
of a member of the forces where
the evidence does not disclose and
alternatively the Tribunal does
not find a real or rational
possibility of a relevant
relationship between the
incapacity and the special
service.

(ii) Whether in reaching its decision
the Tribunal could and
alternatively could in the
circumstances of the case reject
uncontradicted expert evidence.

(iii) Whether the Tribunal is at liberty
to construe the effect of a
decision of the High Court of
Australia in a way inconsistent
with subsequent decisions of the
Federal Court of Australia on
appeal from the Tribunal."

3. The grounds of appeal reflect the questions of law thus identified though reference to those grounds will be necessary in the course of these reasons.

4. The context in which Mr. Stewart's entitlement to a pension was decided is a little unusual, involving as it does two statutes. The Repatriation (Special Overseas Service) Act 1962 provides benefits for certain members of the defence force who served on "special service" outside Australia. Sub-section 6(1) imposes a liability on the Commonwealth, subject to the Act, to pay to a member of the Forces whose incapacity "has resulted from an occurrence that happened during a period of special service of the member" a pension in accordance with Division 1 of Part III of the Repatriation Act 1920 as applied by s.7 of the 1962 legislation. This legislation applied to Mr. Stewart in respect of his service from 30 June 1971 to 4 July 1972 with the Australian Army Training Team in Vietnam. Because of his defence service from 7 December 1972 until 12 July 1980, Mr. Stewart also came within s.107M of the Repatriation Act which imposes on the Commonwealth a liability to pay a pension to a member whose incapacity "has arisen out of, or is attributable to, his defence service".

5. Mr. Stewart has had a long medical history, much of which is irrelevant to the matters now before the Court. In considering the relevant medical evidence, a useful starting point is two reports by Dr. Godkin, a departmental medical officer. Both reports are dated 23 January 1981 and, to all intents and purposes, are identical. There are two reports because of the two statutes under which a pension was claimed. Dealing first with the claim based on haemorrhoids, Dr. Godkin said:

"No specific factors are evident and the
condition is due presumably to a
congenital anomaly of the veins in the
area".

6. Dealing with the claim based on multiple lipomata, Dr. Godkin said:

"a. Tumours of fat tissue.

b. There is no known cause. Multiple
lipomta are uncommon,

c. but are a well recognised entity
and the peak incidence is between
the ages 14-40. Single lipomata
commonly occur".

7. Dr. Godkin was of opinion that neither condition was related to Mr. Stewart's eligible periods of service but, because of the way in which the entitlement to compensation is framed in each Act, he dealt with this particular aspect in somewhat different terms in each report.

8. Dealing first with the question, whether in his opinion, the incapacity arose from an occurrence that happened during the eligible period of service (a reference to the (Repatriation Special Overseas Service) Act), Dr. Godkin reported:

"No. All arose after service and none is
due to an occurrence during
eligibility".

9. Asked in terms of the Repatriation Act whether the incapacity arose out of or was attributable to defence service, Dr. Godkin reported of the haemorrhoids:

"No this is very common in the general
community and service condition cannot
be incriminated, including field
exercises as claimed".

and of the multiple lipomata:

"NO. As far as is known, no
environmental factor is involved in
the aetiology of this condition".

10. So far as the complaint of haemorrhoids is concerned, the recorded history appears to begin on 13 July 1973 when there was a diagnosis of a thrombosed external pile. That was during the period of Mr. Stewart's defence service. On 6 November 1974 (again during the period of defence service) reference was made to Mr. Stewart having noticed 3 lumps on his body some 12 months earlier and other lumps since then. On examination, lipomata were observed over the 12th right rib and the front of the right thigh. He was admitted to Hollywood Hospital and the lumps were removed that same month.

11. Counsel for the applicant referred to lipomata as "small benign lumps of fatty tissue, a kind of tumour, but not in any sense malignant or cancerous, if one uses that term in a way that relates to life threatening problems". Harrison's Principles of Internal Medicine (10th ed) 262 contains this statement:

"Lipomas, relatively common causes of
subcutaneous nodules, are benign tumors
composed of adipose tissue and may be
single or multiple and are frequently
lobulated; they are often rubbery or
compressible and occur most often on the
trunk and back of the neck and
forearms".

12. On 16 February 1976 there was a provisional diagnosis of internal haemorrhoids. On 1 February 1978 Mr. Stewart underwent external haemorrhoidectomy. On 27 November 1979 he made a statement in support of a claim for medical treatment and pension, in the course of which he specified disabilities resulting from a variety of matters including "Piles ... Lipomata Recurrent ...". On 6 February 1980 three lipomata were excised from Mr. Stewart's right arm and one from his right thigh.

13. On 28 February 1980 Mr. Stewart made a further written statement, apparently in support of his claim. He referred to various disabilities; as to those the subject of the present appeal, he commented:

"Piles: These were first noticed in
July 1973. I consider these may have
developed as a result of field exercises
over long periods.

...

Recurrent Lipomata - First developed
6-12 months after return from Vietnam
although first treatment was not until
November 1974. This was because they
have to wait until the lipomata reach
sufficient size for removal (i.e. about
2 years). I consider that exposure to
Agent Orange in Vietnam may have been
responsible".

14. On the same day Mr. Stewart completed a questionnaire headed "Initial Data Base - Possible Exposure to Toxic Chemicals". In that document he referred to periods and places of service with the Australian Army Training Team in Vietnam, alleging "numerous" exposures to aerial sprays. He said he noticed no symptoms at the time but later symptoms were lipomata in 1974, headaches in 1974 and defective vision in 1976. The two latter conditions are not the subject of these proceedings.

15. On 25 March 1980 Dr. Goatcher, a surgeon, reported that it was likely that further lipomata would develop and that, although small haemorrhoids had been removed, it was likely that the condition of pruritus (itching) would continue. On 28 March Dr. Goatcher commented that there was nothing in Mr. Stewart's history "suggestive of the Agent Orange".

16. On 3 April 1980 Dr. Johnson, a consultant physician, reported on Mr. Stewart's various complaints. In the course of this he referred to the haemorrhoidectomy and also to the recurrent lipomata, observing that there were multiple small lipomata in the buttocks and loin. As to the lipomata, Dr. Johnson commented:

"... the aetiology of these is unclear -
I am not aware of any association with
exposure to chemicals but this may prove
to be so".

17. On 26 May 1980 Mr. Stewart completed a further statement in support of his claim for medical treatment and pension. The disability then claimed was in respect of deafness and pruritus. The only relevance of this statement to the present appeal is, I think, that in relation to the pruritus, Mr. Stewart said "End result from having piles continuous through eating hard rations and living in damp conditions". On 9 June 1980 Mr. Stewart completed yet another statement in support of a claim for medical treatment and pension; this time the disability claimed was headaches. It would seem that these various claims were the subject of the composite reports by Dr. Godkin to which reference has already been made.

18. On 26 June 1981 a Repatriation Board dealt with Mr. Stewart's various disabilities, treating some of them as compensable but rejecting any incapacity resulting from haemorrhoids or multiple lipomata as not related to service.

19. In October 1981 Mr. Stewart appealed to the Repatriation Commission inter alia against the decision disallowing his claim for haemorrhoids and multiple lipomata. On 25 February 1982 the Commission rejected the appeal. It was that rejection which was the subject of the Repatriation Review Tribunal's decision, now before this Court. The Tribunal heard from Mr. Stewart in person and apparently had further reports from Dr. Johnson, Dr. Haberfeld, a dermatologist, Dr. McLaren, a psychiatrist, Dr. Stewart, an orthopaedic surgeon, and perhaps others. None of these reports appears to take the matter any further.

20. The Tribunal's findings and reasons contain a section entitled "The Law" in which the Tribunal discussed its approach to the issues before it. It began by saying:

"An Applicant is entitled to pension
rights in respect of any of his claimed
sources of incapacity if the evidence
does not satisfy the Tribunal beyond
reasonable doubt that such incapacity
was not associated with his periods of
relevant service as specified in the
relevant legislative provisions (High
Court of Australia in Law)".

21. The applicant had no quarrel with this formulation though, in terms of para. 107VH(2)(a), the Tribunal is required to set aside the decision appealed from "unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application". The Tribunal continued by stating that the onus of establishing "this negative proposition" lay with the Commission and that no preliminary onus was placed on an applicant to establish any form of case. Various authorities were offered in support of those propositions and, again, the applicant did not suggest any error in these propositions. There followed a somewhat cryptic passage which, I think, calls for some comment:

"Although in the application of the law
to the facts in particular cases, a viewa
differing from this appears to have been
applied, the view which must be
preferred is that of the High Cout as
referred to in each of the judgments
cited. In each case specific reference
was made to one or both judgments in the
High Court's decision and it cannot be
doubted that the High Court judgments
were considered to be in full agreement
on the point. In so far as subsequent
single judge decisions of the Federal
Court seem to be at variance with this
view of the onus provisions by requiring
that before a claim can be granted there
must be evidence of a real possibility
of an identifiable connection between
service and incapacity, the Tribunal is
bound to prefer the principles laid down
by the High Court and approved in the
subsequent decisions of the Full Federal
Court to which reference has been made".

22. The reference to "single judge decisions of the Federal Court" may include Repatriation Commission v. Bishop (1983) 48 ALR 461; Repatriation Commission v. Compton (unreported decision delivered 20 February 1984) had not then been decided. As I sought to make clear in Compton, nothing in Bishop was intended to depart from what the High Court had said in Repatriation Commission v. Law [1981] HCA 57; (1981) 36 ALR 411 regarding the onus of proof. In any event, both Bishop and Compton, together with a number of other decisions on the operation of relevant provisions of the Repatriation Act, were the subject of close examination by the Full Court of the Federal Court in O'Brien v. Repatriation Commission (unreported decision delivered 11 April 1984). Of course O'Brien was not available to the Tribunal. Nevertheless, the question remains, did the Tribunal err in law in reaching the decision it did.

23. Following the lengthy passage from its reasons, set out above, the Tribunal continued by saying that it seemed to it that the view which it declined to follow had been based on a misapplication and misunderstanding of certain decisions, not relating to the Repatriation Act itself. Because this excursus is not an integral part of the Tribunal's reasons, it is unnecessary to take up the alleged misapplication and misunderstanding. It is perhaps enough to say that the Tribunal did not specify, nor am I able to identify, single judge decisions of this Court concerned with the Repatriation Act which offered any basis for the Tribunal's conclusion.

24. I turn now to the way in which the Tribunal dealt with the appeal so far as it related to the claim based on haemorrhoids. The Tribunal referred to evidence given to it by Mr. Stewart in which he said that the condition had first cropped up in 1974 and since then he had had three operations. He expressed the view that the condition could have been connected with his having to live on local food while living with Vietnamese and Cambodian natives during his tour with the training team. Questioned on the effects of this food he answered, "it passed right through you". The Tribunal referred to a second suggestion, mentioned in Mr. Stewart's written statement, that the haemorrhoids may have developed as a result of field exercises over long periods.

25. The Tribunal said of these suggestions: "The aetiology of haemorrhoids provided in Dr. Godkin's report virtually excludes the first suggestion but the second is unexplained". The reference to the aetiology of haemorrhoids is fairly clearly a reference to the inclusion in Dr. Godkin's report of an extract from Christopher's Textbook of Surgery which describes haemorrhoids in this way:

"These are varicose dilations of the
groups of veins lying under the mucose
of the upper anal canal.
There is a congenital structural
weakness in the veins. The condition
may be associated with a rise in venous
pressure, e.g. from raised intra
abdominal pressure as with pregnancy,
straining with chronic constipation,
pelvic tumours, cirrhosis with portal
hypertension.
A familial predisposition may be present
and may be associated with presence of
varicose veins".

26. What I understand the passage to say is that for haemorrhoids to exist there must be initially a congenital weakness in the veins but that the haemorrhoids themselves are produced by venous pressure which itself may be due to a number of causes. I take the Tribunal to be saying that, given this aetiology, Mr. Stewart's experience with local food could not have brought on haemorrhoids. The reference to the second suggestion being "unexplained" is more troublesome. I am conscious of what was said by Northrop and Sheppard JJ. in Lennell v. Repatriation Commission (1982) 4 ALN No. 29:

"A court exercising supervisory
jurisdiction over an administrative
tribunal ought not lightly interfere
with its decisions even if the court
feels that the tribunal's language may
have a degree of looseness. Certainly
it ought not to indulge in an exercise
which over-zealously picks the Tribunal
up in a way it has expressed itself.
That is particularly so when it appears
properly to have understood the legal
principles which it is to apply".

27. Nevertheless, the statement does give rise to some difficulty because it seems to take Mr. Stewart's suggestions as facts which had to be excluded by medical evidence before the claim could be rejected. Dealing with Dr. Godkin's reports and, in particular, his opinion that no aspect of Mr. Stewart's service appeared to be responsible for the disability, the Tribunal said that it found this opinion "less than satisfactory" because:

"1. it acknowledges that Mr. Stewart
did not have the condition before
his period of defence service and
yet in phraseology, which can
hardly have been calculated to
convey any conviction suggests
that it could have been
congenital;
2. it relies in part on the absence
of evidence directly linking the
condition to service;
3. it relies on the evidence of the
condition in the community at
large;
4. without explanation, it asserts it
has nothing to do with field
exercises".

28. At the risk of inflating these reasons, I think it is necessary to see the way in which the Tribunal dealt with these points. It did so in these words:

"1. a congenital anomaly is not itself
a disease. The question which
remains unanswered is:

'What were the possible causes
which led to the development
of Mr. Stewart's haemorrhoids
in 1974?'

Further the doctor's mode of
expression on this point is not
such as would lead the Tribunal
to be satisfied beyond reasonable
doubt about the congenital origin
of the condition;

2. to rely on the absence of evidence
linking service with incapacity is
to place an onus on the applicant
where it does not lie. Absence of
proof is not proof of absence;

3. there are many conditions (e.g.
spondylosis) which are common in
the community but which have
frequently been shown to be
service related; and

4. the Tribunal can give but minimal
weight to an unexplained
assertion".

29. With respect to the Tribunal, this approach betrays some misunderstanding of what Dr. Godkin was saying. Haemorrhoids are congenital in the sense that the initial weakness of the veins is congenital. But for the haemorrhoids to occur, some venous pressure is necessary and this may be due to any one of a number of causes. In Dr. Godkin's opinion, whatever the cause, it was not related to Mr. Stewart's service. It should be made clear that, in putting it this way, I am not suggesting that Dr. Godkin's opinion foreclosed the matter against Mr. Stewart. Questions inevitably arose as to the onus of proof in such a situation.

30. The Tribunal continued:

"Neither individually nor in toto do
the elements of this expert's opinion
suffice to convince the Tribunal that
beyond reasonable doubt Mr. Stewart's
incapacity from haemorrhoids is
unrelated to his service in either
eligible period.

It is nothing to the point that one of
Mr. Stewart's suggestions has been shown
to be very highly improbable and the
other is unproven. He carries no onus
of proof. 'Not any onus' can never mean
some onus'."

31. Notwithstanding the reservations I have expressed concerning the Tribunal's approach to Dr. Godkin's reports, I am not pursuaded that it was thereby led into any error of law. In terms of para. 107VH(2)(a), the Tribunal was bound to set aside the decision of the Commission unless it was satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim. This is not a case in which the aetiology of the condition is unknown; it is a case in which, on the material before the Tribunal, it was not possible to say what was responsible for the venous pressure that produced haemorrhoids from congenitally weak veins. I do not think that anything said in Bishop or Compton, particularly when read in the light of O'Brien, precluded the Tribunal from saying as it did that it was not satisfied beyond reasonable doubt that Mr. Stewart's incapacity from haemorrhoids was unrelated to his service.

32. Mr. French, counsel for the applicant, submitted that if the Tribunal was of the view that the evidence was deficient because of a lack of explanation, it should have taken the course suggested by Fitzgerald J. in Repatriation Commission v. Campbell (unreported decision delivered 30 March 1984) and Repatriation Commission v. Williams (unreported decision delivered 30 March 1984) and insisted that further material be provided. Subject to what I shall say later regarding the claim based on multiple lipomata, I do not think that the Tribunal was obliged to refrain from making a decision on the material available to it. There was nothing to indicate that further medical opinion would have carried the matter any further. The situation was essentially one in which one of several causes may have operated to produce the haemorroids and, having regard to the language of the Act, the Tribunal was entitled to reach the conclusion it did.

33. As to the multiple lipomata, the Tribunal referred to Dr. Godkin's reports, dwelling particularly on these statements:

"There is no known cause. Multiple
lipomata are uncommon, but are a well
recognised entity and the peak incidence
is between the ages 14-40.

As far as is known, no environmental
factor is involved in the aetiology of
this condition".

34. The Tribunal commented that:

"... the second observation is irrelevant
and misleading if the first is correct.
There can be no inference from the
second statement that environmental
factors have been excluded and only such
an inference from the evidence would
have been significant in the context of
the reverse onus of proof".

35. The Tribunal's strictures on Dr. Godkin's reports are not well founded. In a situation in which exposure to chemicals was mooted as a possible cause of the lipomata, it could hardly have been irrelevant to say that no environmental factor was involved in the aetiology of the condition. Nor was the statement misleading because it was prefaced by the observation that there was no known cause of the condition. To begin with, it was introduced by the words "As far as is known". But more than this, there is no logical consistency in saying of a particular condition that its cause is unknown but that, so far as is known, no environmental factor is involved. Such a view is consistent with the decision of Northrop and Sheppard JJ. in Lennell and with my own dissenting judgment in that case.

36. The Tribunal referred to Lennell more than once in reaching its conclusion that there was nothing before it "which would lead it to conclude beyond reasonable doubt that Mr. Stewart's incapacity from multiple lipomata is unrelated to either of his eligible service periods".

37. Whether the Tribunal gave full force and effect to Lennell is doubtful, particularly when regard is had to this passage which follows the Tribunal's consideration of that decision:

"It is interesting to note that where
a disease is one of completely unknown
aetiology the same party must always
succeed under the High Court's ruling
in the Law decision. Where there is
no evidence except that the incapacity
claimed arises from a disease the cause
of which is completely unknown, the
Applicant must always succeed (cf. the
dictum of Davies J. to this effect in
his dissenting judgment in Byrne, Coyle,
Wickenden & MacPherson). In contrast,
application of the view that before a
claim can be granted, there must be a
finding of a real possibility of a
relevant factual connection between
incapacity and service, would always
lead in the same circumstances to a
rejection of a claim".

38. As a matter of strict logic, it may be right to say that where a disease is one of completely unknown aetiology the claimant must succeed, though I do not think that result follows from Law where such a situation was not before the Court. It does gain some support from this passage in the judgment of Keely and Fitzgerald JJ. in O'Brien at p.38:

"If there is no material in respect
of a fact, or if the material is neutral
in the sense that it leaves the existence
of the fact unknown, there is no
rational basis for a choice between
the conclusion that the fact does exist
and the conclusion that it does not. The
non-existence of that fact is not the
only rational conclusion. There is no
need that there also be material which
points to a 'real' possibility of the
existence of that fact. That 'real'
possibility is left open by the
evidence".

39. But the approach taken by the Tribunal in the passage quoted earlier is fraught with difficulties. To refer to a disease of "completely unknown aetiology" suggests that there is nothing at all that may be said about the aetiology of the disease. Decisions on claims under the Repatriation Act indicate that in many cases where the medical evidence speaks of an unknown aetiology, it may nevertheless be possible to exclude or point to the unlikelihood of any connection between the disease and a particular factor. This is a consideration the Tribunal must take into account. It was because the Tribunal in Bishop felt that it was obliged to find that, where the aetiology of a disease was unknown, it could not be satisfied beyond reasonable doubt that there was not some relationship between war service and the disease I was prompted to make some remarks about the need to find something in the material before the Tribunal pointing to a possibility, real as opposed to fanciful, of a connection between the death and the war service. I explained this further in Compton. The implications of O'Brien for those two decisions need not be considered here. Nothing in O'Brien, I think, detracts from this passage in Compton:

"Claims before the Commission are not
to be determined by the mechanical
application of some formula. It is
necessary to examine all the evidence
available and then to determine whether,
on that evidence, the Repatriation Board
or other tribunal concerned is satisfied
beyond reasonable doubt that the death
of the member of the Forces was not
attributable to war service. If the
tribunal is not so satisfied the claim
must be allowed. In making that
determination the tribunal should have
regard to possibilities, so long as they
are not fanciful".

40. To approach the matter of a claim based on a disease of unknown aetiology with a preconception that it must inevitably succeed is likely to lead the Tribunal away from the statutory obligation cast on it to consider whether it is satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim before it. In O'Brien at p.39 Keely and Fitzgerald JJ. commented:

"If the material leaves the cause of
death unknown, it is likely to prove
extremely difficult to be satisfied
that the death was not 'connected with' war
service in a manner specified in the
Act. However, the possibility of an
exceptional case may be left open as it
was in Lennell's Case in relation
to an incapacity of unknown aetiology because
it is a judicial necessity to
acknowledge such possibilities lest
the law should appear to have been laid
down in a way which excludes them from
consideration".

41. I find nothing in that passage or anywhere else in O'Brien that is inconsistent with what was said in Lennell or with what I have said in these reasons concerning the need for an examination of all the evidence. In my opinion, the real question in this appeal is not whether the Tribunal, properly directing itself on the law, might have reached the decision it did, for the applicant concedes that it might. The real question is whether the Tribunal failed in its statutory duty to have regard to the evidence before the Commission and before it in determining whether it was satisfied, beyond reasonable doubt, that there were insufficient grounds for granting Mr. Stewart's claim in respect of the lipomata. I am led to the conclusion that it did fail, in particular that it did not have regard to the entirety of the medical evidence including that of Dr. Godkin and Dr. Goatcher as well as Dr. Johnson.

42. It is true that in its reasons the Tribunal made express reference to Dr. Godkin's reports but the Tribunal seems to have regarded those reports as simply negative when they had a positive element. That is not to say that the Tribunal was bound, on the basis of Dr. Godkin's reports, to have rejected the claim. But I am satisfied that the Tribunal erred in law in drawing conclusions from Law and Lennell wider than was warranted by those decisions and in the approach it took to the medical evidence in consequence.

43. The appeal should be allowed to the extent that the decision of the Tribunal that the Commonwealth is liable to pay to Robert Stewart, in respect of his incapacity from multiple lipomata, the pension payable under Division 1 of Part III of the Repatriation Act should be set aside and that matter remitted to the Tribunal to be determined according to law. I am not saying, as was said in Campbell and Williams, that the Tribunal should have insisted that further medical evidence be provided. Nevertheless, as the matter is to go back to the Tribunal, it would be appropriate for the Tribunal to exercise its powers under s.107VZ and seek further medical advice.