Re Jack Byam Wight v the Repatriation Commission [1984] FCA 18 (15 February 1984)

FEDERAL COURT OF AUSTRALIA

Re: JACK BYAM WIGHT
And: THE REPATRIATION COMMISSION
No. ACT G2 of 1983
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Repatriation - Applicant's entitlement to pension at the Special (Totally and Permanently Incapacitated) Rate or the Intermediate Rate - Onus of proof - Standard of proof - Whether Repatriation Review Tribunal failed correctly to apply the relevant legal principles.

Repatriation Act 1920, sections 47, 107VH, 107VZF, 107VZG, 107VZZH, Schedules

Repatriation Commission v. Bowman (1981) 34 A.L.R.556; [1981] FCA 189; 38 A.L.R. 650.

Lennell v. Repatriation Commission (unreported - 3 February 1982)

HEARING

CANBERRA
15:2:1984

ORDER

1. The decision of the Repatriation Review Tribunal made on 14 December 1982 be set aside.

2. The matter be remitted to the Tribunal for re-hearing on such evidence as may be presented to the Tribunal by the parties.

3. The respondent pay the applicant's costs of the appeal to this Court.

DECISION

Jack Byam Wight ("the applicant") appeals to this Court pursuant to section 107 VZZH of the Repatriation Act 1920 ("the Act") from the decision given by the Repatriation Review Tribunal ("the Tribunal") on 14 December 1982 setting aside the decision of a Repatriation Board made on 22 April 1981 and substituting for that decision a decision that -

"Incapacity arising from service-related disabilities is assessed at one hundred per cent of the General Rate as set out in Schedule 1 to the Repatriation Act 1920. This decision is to take effect on and from 23 January 1981."

The Tribunal rejected the applicant's claim that the appropriate pension to be paid to him is a pension at the Special (Totally and Permanently Incapacitated) Rate as provided for in paragraph 1 of Schedule 2 to the Act or, alternatively, at the rate (called the Intermediate Rate) provided for in paragraph 6 of Schedule 1 thereto. The respondent to the appeal is the Repatriation Commission ("the Commission").

Division 6 of Part III of the Act (comprising sections 99-103 inclusive) extends the application of the provisions of Division 1 of that Part (sections 23-54 inclusive), other than section 24, and the Schedules to the Act to members of the Forces within the meaning of section 100 and the dependants of such members (section 99). Section 101 provides that, upon the incapacity or death of any member of the Forces who falls within the terms of the section, as the applicant does, the Commonwealth is, subject to the Act, liable to pay to the member, or his dependants, or both, pensions in accordance with Division 1. Section 35, which is found in that Division, provides that the rates of pension are those specified in the Schedules. Where a pension is granted, the Commission or a Repatriation Board may, subject to the Act, approve of the payment of the pension on and from a date not prior to 3 months before the date of lodgment of the claim for pension (sub-section 101(3)).

Schedule 1 provides a table of pensions payable, subject to Schedule 3, to a widowed mother or a widow on the death of a member of the Forces or to a member upon his total incapacity. Those rates are known as the General Pension Rates. At the date of the Tribunal's decision the rate prescribed in Column 3 of the table in the Schedule as the pension payable to a member on total incapacity was $76.90 per fortnight. Paragraphs 3 and 6 of Schedule 1 provide -

"3. Where a member of the Forces is temporarily totally incapacitated to such an extent as to be precluded from earning other than a negligible percentage of a living wage while he is so incapacitated, and where the aggregate of the rate of pension payable to that member under Column 3 of the table in this Schedule and the amount (if any) payable to him under Schedule 5 is less than the Special Rate of Pension specified in Schedule 2, the Commission or a Board may grant an additional pension to a member at a rate not exceeding the amount of the difference between that aggregate sum and that Special Rate of Pension for such period, whether in excess of 6 months or not, as the Commission or the Board determines.

"6. Where the incapacity of a member of the Forces is such that he is unable to earn a living wage by reason that he is unable to engage in a remunerative occupation except on a part-time basis or intermittently, the amount specified in Column 3 of the table in this Schedule shall, in its application in relation to him, be deemed to be $140.30."

The rate of pension prescribed by paragraph 6 of Schedule 1 is commonly referred to as "the Intermediate Rate".

Schedule 2 is headed "Rate for Special Pensions $203.80 per Fortnight". The relevant paragraph provides -

"The Special Rate of Pension may be granted to members of the Forces who have been blinded as the result of War Service, and to members who are totally and permanently incapacitated (i.e. incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage)."

Schedule 3 provides in Table B that the pension payable in the case of total incapacity of a member of the Forces is either the General Rate, being the rate specified in Column 3 of the table in Schedule 1, or the Special Rate, being the rate specified in, or assessed in accordance with, Schedule 2 in the cases to which the provisions of that Schedule are applicable. In cases of partial or specific incapacity of a member of the Forces the pension payable (Table C) is such rate, being less than the rate or the maximum rate, as the case may be, prescribed by Table B of Schedule 3, as is assessed, having regard to the nature and probable duration of the incapacity, or in accordance with Schedules 4 and 5 in the cases to which those Schedules apply. It is unnecessary for present purposes to refer to Schedule 4 or Schedule 5.

The Commission is, subject to the control of the Minister, charged with the general administration of the Act (section 7) and may exercise such powers, and is to perform such duties, as are conferred upon it by or under the Act (section 11). A claim for a pension is, subject to any determination or assessment made by the Commission, to be referred to a Board established under section 14 (see sections 24AB and 27). A Board is charged, inter alia, with assessing, from time to time, the rates of pensions of members of the Forces, and their dependants, and determining the dates of the commencement and cessation of such pension (paragraph 27(1)(d)).

Whenever it appears to the Commission that, under the Act, sufficient reason exists for reviewing any assessment, decision or determination in relation to a pension other than a decision referred to in sub-section 31(3)) the Commission is empowered to review the assessment, decision or determination (section 31).

The Commission or a Board, in hearing and determining a claim or application, is not bound by technicalities, legal forms or rules of evidence and is to act according to substantial justice and the merits and all the circumstances of the case (sub-section 47(1)). Sub-section 47 (2) provides -

"The Commission or a Board shall grant a claim or application, and the Commission shall allow an appeal, unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal, as the case may be."

Where the Commission or a Board has made a decision assessing the rate of pension of a member of the Forces, the member may make application to the Tribunal for a review of that decision (paragraph 107VD(1)(a)). The Tribunal is not bound by technicalities, legal forms or rules of evidence and is to act according to substantial justice and the merits and all the circumstances of the case (section 107VG). In a proceeding on a review, the Tribunal is to have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before the Tribunal (sub-section 107VH(1)). Sub-sections (2) and (3) of section 107VH provide -

"(2) On the completion of its consideration in a proceeding on a review -

(a) where the decision the subject of the review was a decision refusing a claim or application for a pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or

(b) in any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made.

(3) Where the Tribunal sets aside a decision the subject of a review, it shall substitute for that decision such decision as the Tribunal considers to be in accordance with this Act and, for that purpose, the Tribunal may exercise all the powers and discretions that are conferred on the Commission or on the Board, as the case may be."

The Tribunal may specify in a decision on a review the date from which the decision is to operate, being a date fixed in accordance with Division 7 of Part IIIA (section 107VZF). By virtue of sub-section 107VZG(3), a decision of the Tribunal on a review pursuant to an application under section 107VD is not to be expressed to operate from -

"(a) where the application follows on a decision of the Tribunal or the Commission granting a claim for a pension - a date earlier than the date from which that decision of the Tribunal or the Commission, as the case may be, operates;

(b) where the application is for a review of a decision -

(ia) assessing the rate of a pension;
(i) refusing to alter the existing assessment of the rate of a pension; or

(ii) refusing a claim for a pension on the ground that the incapacity of the member of the Forces is so slight that it does not warrant a pension assessment,

a date earlier than the earliest date from which the Commission or a Board, if it had not made that decision, could have approved of payment of the pension; or
(c) . . . "

By virtue of sub-section 107VZZH(1), an applicant in a proceeding before the Tribunal may appeal to this Court, on a question of law, from any decision of the Tribunal in that proceeding. The Court is to hear and determine the appeal and may make such orders as it thinks appropriate. It may make an order affirming or setting aside the decision of the Tribunal or an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court (sub-sections (4) and (5) of section 107VZZH).

The applicant was born on 12 July 1918. He enlisted in the Royal Australian Air Force on 12 August 1940 and saw service as an instrument maker in Australia, the Trobriand Islands and Dutch New Guinea. He was discharged on 5 September 1946, In 1956 he was appointed Technical Manager at The John Curtin School of Medical Research within the Australian National University. He continued in that position for some 20 years. He went on extended sick leave on 13 August 1976 and was retired on medical grounds with effect from 15 February 1978. In the normal course he would not have retired from that position until 1983.

For many years the applicant has suffered from disabilities which have been accepted as being relevantly related to his war service and he has been in receipt of a pension under the Act in respect of the incapacity arising from such disabilities. Prior to the events to which it will be necessary to refer the disabilites which had been accepted as being service-related were

. chronic tonsillitis;

. infection with strongyloidea stercoralis;

. generalised eczema with tendency to pus formation; and

. anxiety state with functional gastro-intestinal disorder and urgency of micturition.

It should be mentioned that the applicant suffered other disabilities which were not accepted as being relevantly related to his war service. The pension payable to the applicant under the Act had been assessed at 50 per cent of the rate of pension payable under Column 3 of Shedule 1 to the Act to a member on total incapacity ("the General Rate").

On 19 November 1975 the applicant lodged a claim for medical treatment and pension in respect of "blood pressure (abnormal)". Following investigation of the claim the applicant was diagnosed as suffering from essential hypertension. At various times between November 1975 and September 1980 the claim was considered by a Repatriation Board and on several occasions by the Commission and by a War Pensions Entitlement Appeal Tribunal. It was not accepted that the incapacity arising from essential hypertension was attributable to the applicant's war service.

On 29 September 1980, however, following a further review the Commission accepted the incapacity resulting from essential hypertension as being service-related with effect from 19 August 1975, that date being 3 months prior to the date of lodgment of the initial claim in respect of that disability (sub-section 101(3)). The extent of the incapacity was to be determined by a Repatriation Board.

On 6 April 1981 the Commission reviewed its decision of 29 September 1980 as to the effective date of acceptance of incapacity due to essential hypertension. It amended the date from 19 August 1975 to 29 September 1976, being the date four years before the date on which the Commission made its decision accepting the incapacity resulting from essential hypertension as being service-related. In so doing the Commission appears to have considered that paragraph 107VZG(1)(f) of the Act, in the form in which it then stood, was applicable.

On 22 April 1981 a Repatriation Board assessed the applicant's "overall service-related incapacity following the acceptance of essential hypertension by the Repatriation Commission". The material before the Board included the applicant's sick leave history for the period 17 February 1970 to 30 July 1976, a report dated 21 November 1980 by a medical officer (a physician) of the Department of Veterans' Affairs, a report by Dr. Dinnen, a consultant psychiatrist, who interviewed the applicant on 23 January 1981 and who had before him a letter dated 20 January 1981 concerning the applicant written by Dr. Merrifield (pyschiatrist), a report dated 23 January 1981 by Dr. C. Bear (dermatologist) and an assessment dated 19 February 1981 by a departmental medical officer endorsed on 15 April 1981 with his comments by the Acting Assistant Director of Medical Services. It will be necessary to refer in some detail to these reports but it is sufficient to note at this stage that the Board assessed the applicant's incapacity resulting from his service-related disabilities at 70 per cent of the General Rate of pension. More specifically the Board assessed the applicant's incapacity resulting from essential hypertension at 10 per cent with effect from 29 September 1976 thus raising the rate of pension to 60 per cent of the General Rate with effect from that date and granting a further increase to 70 per cent of that rate with effect from 23 January 1981 in respect of incapacity arising from the conditions of generalised eczema and anxiety state with functional gastrointestinal disorder and urgency of micturition.

On 16 July 1981 the applicant, pursuant to section 107VD of the Act, appealed to the Repatriation Review Tribunal against the assessment by the Repatriation Board dated 22 April 1981. The Tribunal commenced to hear the appeal on 26 November 1981 and, after the hearing had proceeded for some time, the Tribunal, pursuant to sub-section 107VZ(1) of the Act, requested the Secretary to the Department of Veterans' Affairs to provide a rehabilitation report and to enquire into the employment situation in relation to the applicant's accepted disabilities. The Tribunal also made an interim variation of the assessment of the rate of pension, increasing the rate to 80 per cent of the General Rate with effect from 22 April 1981, that being the date of the decision of the Repatriation Board.

On 10 May 1982 the Commission, on a review under section 31 of the Act, revoked its decision of 6 April 1981 thus reinstating the original date of 19 August 1975 as the date of effect of the acceptance of incapacity resulting from essential hypertension as being attributable to war service. This decision was apparently not regarded as amending the date 29 September 1976 in the decision made by the Repatriation Board on 22 April 1981.

Following receipt of the reports which had been requested on 26 November 1981, the Tribunal, differently constituted, resumed the hearing of the appeal. On 14 December 1982 the Tribunal made the decision to which I have already referred assessing the applicant's incapacity from service-related disabilities at 100 per cent of the General Rate with effect from 23 January 1981.

The Tribunal had before it a number of medical reports. Dr. W.A. Saw, whose patient the applicant had been for many years, in a letter dated 27 July 1976 addressed to the Australian National University strongly recommended that the applicant be retired from his position with the University "on the grounds of his Repatriation Entitlements and in particular his Essential Hypertension". After referring to the series of disabilities which had troubled the applicant over some 20 years and to the fact that those disabilities had been exacerbated in the past three years, Dr. Saw said -

"Added to this he has been troubled by Essential Hypertension since November 1975. As you know he has had considerable periods of sick leave over the past year and I feel that he has reached the end of the road regarding employment."

Dr. J.J. McCarthy on 29 July 1976 reported -

"I feel Mr. Wight should be retired on medical grounds. His anxiety state will get worse in present position and this will affect his blood pressure and dermatitis. I consider the above three symptoms are of a permanent nature and are not due to wilful action on the member's part for the purpose of obtaining pension."

In a certificate dated 24 April 1978 Dr. Saw said -

"I feel that his continued anxiety and embarrassment caused by his Eczema was a contributing factor in his development of Hypertension."

Dr. Saw gave a further report dated 23 November 1981 reading as follows -

"Mr. J.B. Wight was so affected by his Repatriation Disabilities that his early retirement was recommended by me on 27.7.76. This was subsequently confirmed by the Commonwealth Medical Officer.

In the preceding years he was increasingly plagued by the following disorders:

1. Itching rash especially perneal and perianal which periodically lead to cracking of the skin, staining of the underwear and an unpleasant odour.

2. Persistent oesophageal reflux requiring large amounts of Mylanta, frequent motions and urinary frequency.

3. Essential Hypertension and chronic anxiety.

At the A.N.U. he changed from a workoholic situation to a responsible individual harrassed by irritibility, lack of concentration, impatience, and loss of confidence in decision making. He consequently felt that he was letting down his superiors and had lost his grip on the job. A vicious circle formed with Dermatitis, Reflux, frequency all increasing anxiety and Vice Versa.

All the above overflowed into his personal life and caused his withdrawal from a very active role in bowl's administration and continuing embarrassment in personal contacts.

This situation continues in his present environment."

On 14 October 1982 Dr. Saw again stated that the applicant was suffering from repatriation disabilities and was "unfit for work as per statement of 23/11/81."

Dr. A.J. Merrifield, in a report dated 12 May 1978 stated -

"This man has been under medical care for a several number of years for anxiety state, general eczema, and gastrointestinal disorder.

He was seen by me in 1974 referred by his general practitioner, Dr. W.A. Saw.

I saw at the time that he was a fairly conscientious fellow who was moderately severely crippled by tension and anxiety. His personality was a striven, driven one and there was no doubt that the condition compounded the problem that he saw as his most major one - his pruritis ani.

He in some ways presented with the stoic attitude which is not uncommon in his generation, one does not have nerves and he quite adamantly denied that he was a tense and anxious person despite the very definite evidence that was there.

Your question at the present moment is the relation of tension to essential hypertension as presented by the Acting Senior Medical Officer, Department of Veterans' Affairs to Prof. H.M. White. There is little I can add to these except perhaps to comment that the basic drug treatment for essential hypertension, assuming such treatment is necessary, is generally with a diuretic and an anti-anxiety agent. Certainly in recent years, the Beta Blockers have played an important part but whereas they are said to be in the main anti-hypertensive in their action, they do have a specific function as an anti-anxiety agent particularly in cases where there is a cardiac component."

In a letter dated 20 January 1981 to Dr. Dinnen Dr. Merrifield said -

"This man has an appointment to see you at 9.30 on Friday the 23rd January. At the request of his L.M.O. Dr. W.A. Saw I am sending you this brief precis of the situation as I see it.

Until the consultation today I had not seen him since 1977. At that time he was making claims on the Department of Veterans' Affairs for hypertension and had had that claim rejected. In subsequent years he has made four appeals, the last of which was successful and as a consequence of that he now is up for a total assessment of his condition.

He saw a physician in the Grace Buildings in November and felt that he didn't present himself very well on that occasion and hence the reason for this consultation and this letter.

He has an entitlement for a functional gastrointestinal disorder which he told the physician at that time was not a worry to him. Subsequently he has reflected that he is constantly taking Mylanta which indicates that in fact it does worry him a great deal and also the fact that he has continuous oesophageal reflux and also frequency of urination and bowel motions are indications that the condition, although under control is in no way quiescent.

Similarly he said that his hypertension didn't worry him, that in fact he now appreciates the fact that he often has to take things slowly to maintain his equilibrium and that although he is not concerned about it it is a minor and constant irritant.

More particularly his dermatitis is constantly with him, constantly needs castalanis paint to keep it under control.

He was the scientific manager of the Medical School of the A.N.U. for some twenty-one years and was retired on medical grounds from that position because of all these conditions in 1977.

He has always been something of a workaholic, always been involved in good causes, but for the last few years has only been involved in the organization of the National Singles Bowls Championships and looking after his extended family and he feels that he will continue at that level.

At the times that I have seen him over the years it has been very clear to me that he has had an anxiety state of moderate severity but that he has certainly to say the least forcefully denied that this is so because he could see such a condition as being a weakness.

I hope this information will help to serve as an introduction."

On 16 February 1982 Dr. Merrifield addressed a letter to Dr. E. Rogers which read -

"This man has an appointment with you for assessment on the 19th of February, 1982. It is at his request that I am sending this introductory letter. The reason for this is that in the past he has seen Repatriation officers and states that he doesn't feel that he has presented himself very well and would like an introductory precis. I have seen him on a number of occasions over the years at Veterans' Affairs request for an evaluation.

For a number of years he has been having what must be seen as a running battle with the Department to have his hypertension accepted as a war incurred disability. He has an entitlement for pruritis ani, hypertension, anxiety state and a functional intestinal disorder and finally has had hypertension accepted as an entitlement.

He was the business/scientific manager of the medical school at the A.N.U. for some 21 years and was retired on medical grounds from that position in 1977.

He has not worked since then. He has a great interest in bowling and does organise the bowling conferences and championships here to some excellence.

He worries and concerns about his capacity to be employed. It has been suggested to him that he become a taxi driver but his pruritis ani would appear to exclude that and his blood pressure, he feels, would make it unlikely that a taxi licence would be granted to him.

Most of his conditions are reasonably well under control while he 'cares for himself'. When he gets under strain or pressure he is inclined to fall to pieces.

He feels at times that he is seen as an abrasive person who has great difficulty in communicating what he sees as his reasonableness.

He is fairly highly obsessional and likes to have his i's dotted and his t's crossed and gets impatient with others who won't see the same point of view.

In general I see him as a fairly obsessional gentleman who is plagued by a multitude of psychosomatic disorders; who wants to see justice done.

He hopes, by this introduction, to be seen as a reasonable man."

On 23 January 1981 Dr. Dinnen assessed the applicant's condition as follows -

"I cannot see much indication of deterioration in his psychiatric condition either from his history or by comparison with his present state and that reported 2 and 6 years ago by Dr. Merrifield. Nonetheless, in spite of the fact that he is adjusting well to retirement and does not require psychotropic medication, he is still a chronically anxious individual whose 'premature' retirement he sees as being due to this and skin rash. Assess at 50%."

On the same date Dr. C. Bear, dermatologist, reported -

"Complains of irritation of skin. Worse lately on scrotoma about back passage, and in groins. Both these areas has been covered with Castellani's paint which appears to have relieved the irritation. There is no eczematous erruptions on the trunk at the moment. Says he sweats a lot which would aggravate condition. No fungus was found on skin scrapings in 1974. The condition in my opinion is a form of Neurodermatitis related no doubt to his anxiety state. I would assess the disability at 30%."

The following extracts are taken from the assessment made by a medical officer of the Department of Veterans' Affairs on 19 February 1981 and endorsed by the Acting Assistant Director of Medical Services on 15 April 1981 -

"Disabilities Comments

Generalized eczema with Eczema is confined to groin tendency to pus formation & scrotal areas. Controlled

by Castillani's paint. No
weeping. Slight redness

only. No deterioration.

Anxiety state with Anxiety & worry causing or
functional gastro-intestinal aggravating. Interferes only
disorder and marginally with quality of

life.

urgency of micturition Assessed by psychiatrist at

50%

Essential hypertension Reasonably well controlled

with
medication. No target organ
involvement."

The reasons for assessing the appellant's disabilities at 70 per cent were

stated thus -

"Most of veteran's symptoms are related to anxiety state, and there does not appear to have been much deterioration. Veteran is able to pursue active hobbies & social life although he has retired from his job."

On 16 February 1982 Dr. G.D. Kelly reported -

"I have known Mr. Wight for the past six years, firstly in a personal capacity and latterly as a patient. Mr. Wight was in a responsible, senior position in the John Curtin School of Medical Research as well as holding voluntary part time positions concerned with community welfare.

He was forced to retire some seven years early from a position that he had previously gained much personal satisfaction from, as well as having provided invaluable service to the establishment of and later the complex running of the John Curtin School of Medical Research.

Retirement was forced on Mr. Wight, primarily by his hypertension, but markedly compounded by his anziety state, neurodermatitis, (at times severe) and his functional gastrointestinal disorder. Individually the latter three disabilities are a cause of constant concern and often embarrassment to him, but together with the hypertension constitute a vicious circle.

Since retiring it is my opinion that Mr. Wight has not adjusted well to the change in lifestyle prematurely thrust upon him. He has lost seven years of high salary plus seven years extra superannuation benefits. In more subjective terms he has lost seven years of job satisfaction and productivity, both being of high importance to Mr. Wight.

With regards to any future potential employability, I believe he is incapable (because of his disabilities, especially by the unfortunate compounding interaction between the separate disabilities), of working in any full time employment, or even in regular part time employment. At most I feel he would be capable of some 2-3 hours/day for 2-3 days per week, for 2-3 weeks per month, which is less than one fifth of his employment hours prior to retirement.

If you require further details I would be pleased to supply same."

A later report dated 20 October 1982 contained the following paragraph -

"Since that initial assessment (February 1982), he has diligently tried to obtain part time work, but through no fault of his own has been unable to find any employment. His anxiety state has increased over this time to a degree that I feel is incompatible even with the limited employment that I initially assessed he was (then) capable of."

Dr. A.C. Clarke, a gastro-enterologist, made a report dated 20 October 1982 reading as follows -

"This man has asked me to submit a report regarding his recent medical problems. I was asked to see him in August of this year as a barium enema had shown a possible filling defect in the proximal signoid colon. Such colonoscopy demonstrated two colonic polyps both of which were removed and shown to be benign adenomas. He has been advised to have a further colonoscopy in a year's time to ensure that no metachronous tumours have developed. His other medical problems include mild diverticular disease which has been uncomplicated, irritable bowel syndrome, anxiety state and controlled hypertension.

If you would like any other details please do not hesitate to contact me.

A summary of this patient's medical problems is -

colonic polyps - ? 1949, rectal, probable August 1982.

irritable bowel syndrome - longstanding

diverticular disease - mild appendicectomy

anxiety state - moderate, well controlled

hypertension - controlled with medical therapy."

Dr. Rogers made a report dated 18 March 1982 (referred to as a rehabilitation report). It recorded what had been said by the appellant concerning his service related disabilities in the following terms, the number 3 and the reference "A/D3" referring to general eczema with tendency to pus formation, the number 4 referring to anxiety state with functional gastro-intestinal disorder and urgency of micturition and the number 5 referring to essential hypertension -

"3. Occurs mainly on the groins, scrotum, perineal and peri-anal areas. Aggravated by heat and humidity and stress. When severe it requires lengthy extensive applications of paints or solutions, graduating up to (when not severe) brief applications of powder to the groins. Improved overall since retirement, as he can take his time with treatment (being relieved of the demands of work). Wears light clothing in Summer (i.e. shorts) and avoids driving in hot weather.

4. GIT symptoms require intermittent treatment with antacids. He also complains of irritability, poor concentration, apprehension and groundless fears. Is not taking psychotropic drugs, but uses "self control" instead.

He sees frequency of micturition as the main handicap, (possibly aggravated by the hypertension therapy), together with A/D 3. Micturates 5 to 6 times between 6 and 10.30 a.m. and then about 2nd hourly during the day (clothing may be soiled). This, plus the treatment for A/D 3 prevents him from leaving the house before 10 a.m. or so and therefore he cannot guarantee his appearance at work on a regular basis.

However he maintains he could do his previous work or similar on a part-time basis, as his anxiety level is raised only when the demands of work conflict with the demands of treatment. When there is no conflict he can work efficiently and with personal satisfaction.

5. He understands that the hypertension is aggravated by stress. He feels he hasn't the same 'get up and go' as before and wonders if this is the result of medication."

The report recorded what treatment the appellant was receiving and the doctor's comments upon her examination. The comments included -

"Skin: Veteran assured me that he had minimal groin lesions at present, only requiring dusting with therapeutic powder, and declined to show them."

The report also contained the following -

"Veteran presented with certificates (attached) stating he was unfit for further work 'and unfit for full time employment or even for regular part-time employment.' However, veteran states he is prepared to consider part-time work, commencing at 10.30 to 11.00 a.m."

Reference was then made to a vocational report by an occupational therapist dated 11 March 1982 which, under the heading "Health", stated -

"The Occupational Therapist telephoned Ms Pilsington to ascertain Mr Wight's progress. She stated that she had had several contacts with him and felt that his experience and qualifications would give him good employment prospects, even though his age was a disadvantage. However, his hour restrictions make his finding any position very unlikely.

She also stated that the Public Service Disabled Persons Officer had declined to give Mr Wight full assessment as he felt that his age and hour limitations made him virtually unemployable."

The final comment in that report was -

"Following the assessment by the Woden C.E.S. it would appear that Mr. Wight will be unable to gain any suitable employment in his local area."

Dr. Rogers' report then set out her medical opinion concerning the appellant's employment in the following terms -

"Fit for light to moderately heavy activities, avoiding conditions (climatic and work) producing perspiration and avoiding excessive stress and responsibility. No travel restrictions within a reasonable distance from home.

A/D 3 (Eczema) does not restrict him at present from full time work though it is recorded as preventing work before 10.30 or 11.00 a.m. in the past.

A/D 5 (hypertension) and its treatment does not exclude full time work.

A/D 4 (anxiety state including urgency of micturition) is assessed at 50%, however veteran views hourly micturition (see Veteran's Statement), combined with the demands of treatment for A/D 3, as preventing work before 10.30 or 11.00 a.m.

Remaining A/D's or R/D do not exclude full time work.

Overall I would consider veteran fit for full time work at present, of the type outlined above, as the demands of treatment do not prevent it and the frequency referred to would not exclude it.

Referred to O.T. to investigate the local job market and to assess the possibility of veteran finding part time work as he desires."

The abbreviation "A/D" refers to disabilities accepted as service related and the abbreviation "R/D" to disabilities not so accepted. "O.T." is an abbreviation for occupational therapist. Dr. Rogers concluded -

"1) He is a qualified tool maker and has extensive recent managerial and administration experience and would be capable of a variety of clerical work.

2) He is unfit for his most recent work because of the associated stress and responsibility. He would remain fit for undemanding clerical type work.

3) Such work is available in his area (Public Service) though there is a high unemployment rate.

4) The possibility of him finding such suitable local work is limited by his age in respect of full time work, but reduced to nil in respect of part time work.

5) Veteran does not report any change in his personal or socio-economic circumstances since April 1981.

The employment market would have been better, even though marginally, in his area at that time though the Public Service Board's Scheme for disabled persons only came into existence recently."

Logically the first question for the Tribunal was whether the decision of the Repatriation Board should be set aside. In terms of paragraph 107VH(2)(b) of the Act it was bound to do so unless it was satisfied, beyond reasonable doubt, that the decision was the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made. The Tribunal concluded that it was not so satisfied and consequently set aside the Board's decision. The Tribunal's decision to do so is not the subject of challenge in these proceedings.

The Tribunal's duty was then to substitute for the Board's decision such decision as the Tribunal considered to be in accordance with the Act (sub-section 107VH(3)).

In its reasons for decision the Tribunal traced the history of the matter and referred to those parts of the evidence before it that it regarded as significant. The Tribunal discounted the suggestion that had been made that the applicant could not commence work at the normal starting time, that, with his age, being the factor that led the occupational therapist to conclude that it would be difficult for the applicant to find employment. In rejecting the applicant's claim that the appropriate rate of pension payable to him was the Special Rate under Schedule 2 or the Intermediate Rate under paragraph 6 of Schedule 1, the Tribunal said -

"Dr. Kelly's reports of October 1982 and February 1982 are to be compared with reports by Dr. Rogers and Dr. Clarke. The Tribunal is satisfied that the proper position has been set out in the two latter reports, which clearly indicate that the Applicant's disabilities are under good control at the moment, and sedentary work on a full-time basis is not beyond him. As noted earlier the Tribunal has difficulty in accepting the situation that the Applicant is not available, or could make himself available, for work on the normal daily basis, particularly in the areas for which he is trained, and in which he has had considerable experience.

"The Tribunal has given serious consideration to the claim for the Special Rate of pension, and indeed has considered the possibility of an assessment of a pension at the Intermediate Rate as provided for in paragraph 6 to Schedule 1. The Tribunal is of the clear view that neither of these rates are warranted in this case. The Tribunal is far from satisfied, on the medical evidence alone, that the Applicant is Totally and Permanently Incapacitated for life. Equally the medical evidence contained in the Rehabilitation Report and in the report of the Occupational Therapist would indicate that the Applicant's disabilities do not impose upon him an incapacity which would restrict him to parttime intermittent work."

The Tribunal continued -

"However, the Tribunal is satisfied beyond reasonable (doubt) that the incapacity arising from these service disabilities restrict the Applicant to sedentary non-demanding work style. Although there is some difficulty with the eczema and with the gastro-intestinal disorder these seem to be controlled with appropriate therapy. The anxiety state and the essential hypertension represent a threat to the Applicant, and impose a restriction on work selection which narrows the field to the type of work noted above.

Accordingly the Tribunal is satisfied that the appropriate rate of pension for the incapacities arising from service disabilities is that provided for in the General Rate at one hundred per cent."

The Tribunal was entitled to reject the applicant's claim for a pension at the Special (Totally and Permanently Incapacitated) Rate as provided for in paragraph 1 of Schedule 2 to the Act and the alternative claim for a pension at the Intermediate Rate as provided for in paragraph 6 of Schedule 1 if, and only if, it was satisfied, beyond reasonable doubt, that there were insufficient grounds for granting those claims (subsections 47(2) and 107VH(3)). The questions for decision are whether the Tribunal was so satisfied and, if so, whether it was entitled, on the material before it, to come to that conclusion.

Counsel for the applicant made two general submissions. First, he said that the Tribunal, in rejecting the claims, had failed to apply the correct test or to ask itself the appropriate question. He pointed to the language used by the Tribunal in setting out its reasons and, in particular, to the following passage in those reasons -

"The Tribunal is of the clear view that neither of these rates are warranted in this case. The Tribunal is far from satisfied, on the medical evidence alone, that the Applicant is Totally and Permanently Incapacitated for life. Equally the medical evidence contained in the Rehabilitation Report and in the report of the Occupational Therapist would indicate that the Applicant's disabilities do not impose upon him an incapacity which would restrict him to part-time intermittent work."

Those statements, so it was submitted, were consistent with the approach of a Tribunal entitled to reach a conclusion on the balance of probabilities. They demonstrated, it was argued, that the Tribunal had not found itself satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the applicant's claims.

The second general submission of counsel for the applicant proceeded on the assumption that the Tribunal's decision could be read as meaning that it was satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claims. The submission was that, by reason of three specific matters (counsel originally referred to four but subsequently agreed that the fourth was properly subsumed under the third), the Tribunal could not, on the evidence, and particularly the medical evidence, before it, have determined that it was so satisfied. The only conclusion open in the circumstances was, so the argument ran, that the Tribunal had erred in law and that its decision should be set aside.

Two of the specific matters relied upon as being matters in relation to which the Tribunal erred were said to be findings by the Tribunal that the appellant's gastrointestinal disorder and his eczema were controlled with appropriate therapy. The particular passage in the Tribunal's reasons for decision to which attention was directed reads:

"Although there is some difficulty with the eczema and the gastro-intestinal disorder these seem to be controlled with appropriate therapy."

Earlier in those reasons the Tribunal had said:

"Dr. Kelly's reports of October 1982 and February 1982 are to be compared with reports by Dr. Rogers and Dr. Clarke. The Tribunal is satisfied that the proper position has been set out in the two latter reports, which clearly indicate that the Applicant's disabilities are under good control at the moment. . . . "

It was argued that Dr. Clarke's report did not expressly say that the applicant's gastro-intestinal disorder was under control and that that conclusion could not be inferred from his report. Similarly, it was argued, there was no express reference in Dr. Rogers' report to a gastro-intestinal disorder and it was not possible to infer from that report that the applicant's gastro-intestinal disorder was controlled with appropriate therapy. Counsel also referred to Dr. Kelly's reports of 16 February 1982 and 20 October 1982.

In relation to the applicant's eczema, it was submitted that there was insufficient evidence before the Tribunal to warrant the conclusion that that disability was controlled with appropriate therapy.

The third specific matter relied upon was the Tribunal's finding that the applicant's anxiety state and essential hypertension were not such as to render him unable to perform sedentary work on a full-time basis. The Tribunal, it was said, appeared to have relied on the reports of Dr. Clarke and Dr. Rogers as supportive of this finding. It was submitted that those reports did not support the Tribunal's conclusion. Reference was made to the reports of Dr. Saw dated 23 November 1981 and his certificate dated 14 October 1982, to the report of Dr. McCarthy dated 29 July 1976 and to the reports of Dr. Kelly dated 16 February 1982 and 20 October 1982.

Counsel also submitted that, although the Tribunal referred to the decision of this Court in Repatriation Commission v. Bowman [1981] FCA 189; (1981) 34 A.L.R. 556; 38 A.L.R. 650 and the material relating to the applicant's employability that had been obtained consequent upon that decision, the Tribunal had failed to make any relevant finding on that material and had expressed itself as deciding the matter on the basis of the medical evidence alone. This submission was made in relation to the Tribunal's decision on the claim for a pension at the Intermediate Rate as well as on the claim for a pension at the Special Rate. In relation to the claim for a pension at the Intermediate Rate it was also argued that the Tribunal had not correctly stated the test to be applied in that it had referred to the applicant's disabilities as not imposing upon him an incapacity which would restrict him to "part-time intermittent work" whereas paragraph 6 of Schedule 1 refers to an inability to engage in a remunerative occupation "except on a part-time basis or intermittently".

In considering these submissions I have adopted the approach which is reflected in the following passage in the joint judgment of Northrop and Sheppard JJ. in Lennell v. Repatriation Commission (unreported - 3 February 1982) -

"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 the way it has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply."

See also Repatriation Commission v. Bugg (unreported - 27 July 1983) and Repatriation Commission v. Evans (unreported - 21 December 1983).

I have given anxious consideration to the question whether the Tribunal's reasons for decision can be read as including a finding that the Tribunal was satisfied, beyond reasonable doubt, that the applicant was not incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage, this being the language used in paragraph 1 of Schedule 2 to the Act. The Tribunal did not express itself in that way but it would be sufficient to sustain the Tribunal's decision in relation to the application for a pension at the Special (Totally and Permanently Incapacitated) Rate if its conclusion was that it was satisfied, beyond reasonable doubt, that the applicant was not precluded by his service-related disabilities from obtaining in the labour market available to him employment of a sedentary, non-demanding, clerical nature on a full-time basis. Can the Tribunal's decision be read as a decision to that effect?

The real difficulty with the case is to determine whether the Tribunal approached the matter in the manner required by sub-sections 107VH(3) and 47(2). Neither of those provisions is referred to in the reasons for decision and in stating its conclusions (except in the paragraph relating to the percentage of the General Rate awarded) the Tribunal uses language which is equivocal as to the degree of its satisfaction. The critical findings are not expressed in terms of the Tribunal being satisfied beyond reasonable doubt. It speaks of being of the "clear view" that neither the Special Rate nor the Intermediate Rate is warranted but to state, as the Tribunal does, that it was far from satisfied that the applicant is totally and permanently incapacitated for life is to state something quite different from a satisfaction, beyond reasonable doubt, that he is not so incapacitated.

In the circumstances I have reached the conclusion, though reluctantly, that the decision cannot stand. The relief sought by the applicant is that the decision be set aside and the matter remitted to the Tribunal for re-hearing. The applicant is, in my view, entitled to that relief. The re-hearing will be on such evidence as may then be presented to the Tribunal.

In deference to the careful submissions that were put to me on behalf of both parties, I should add that I do not regard the case as one in which a finding adverse to the applicant was not open to the Tribunal on the evidence before it. However, as the matter is to go back for a re-hearing it is undesirable that I say anything further on that issue.

An alternative submission was put on behalf of the applicant that, if the Tribunal was held not to having fallen into error in rejecting the applicant's claim for a pension at the Special or the Intermediate Rate so that the appropriate rate of pension to which the applicant was entitled was 100 per cent of the General Rate, the Tribunal had none the less fallen into error in determining that its decision should operate from 23 January 1981 and not from an earlier date. The submission was based on the absence from the Tribunal's decision of any reasons for adopting that date as the operative date. In the light of the conclusion to which I have come I have found it unnecessary to express a view on this submission, the correctness of which involves a consideration of the provisions of Division 7 of Part IIIA of the Act. It is a matter to which the Tribunal may need to address itself on the re-hearing.

In the result, the decision of the Tribunal made on 14 December 1982 is set aside and the matter remitted for re-hearing on such evidence as may then be presented to the Tribunal. The respondent is to pay the applicant's costs of the appeal to this Court.