Re Murray Douglas Mcbay v Director-General of Social Security [1985] FCA 30 (15 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: MURRAY DOUGLAS McBAY
And: DIRECTOR-GENERAL OF SOCIAL SECURITY
No. G.35 of 1983
Administrative Law
(1985) ASSC para 92 - 048

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Administrative Law - Social security - Invalid pension - Appeal from Administrative Appeal Tribunal - Appellant fit only for selected duties - No evidence that such duties available - Uncontradicted evidence as to absence of suitable employment - Whether Tribunal bound to act on such evidence - Whether appellant 'permanently incapacitated for work' - Whether appellant entitled as a matter of law to a grant of a pension.

Social Security Act 1947 ss.23, 24

Administrative Appeals Tribunal Act 1975 s.44

Re Panke and Director-General of Social Security (1981) 4 ALD 179 applied

HEARING

SYDNEY
15:2:1985

ORDER

1. The appeal be allowed.

2. The decision of the respondent to refuse the application of the appellant be set aside and the application be remitted to the respondent for reconsideration in accordance with a direction to treat the applicant as being permanently incapacitated for work and as having been so incapacitated since the date of the application.

3. Leave is reserved to both parties for either to apply to the Administrative Appeals Tribunal for such directions as may be appropriate or necessary with regard to any benefits, other than an invalid pension, received by the appellant under the Social Security Act 1947 since the date of the said application and, to that extent and for that purpose, the matter is remitted to the Administrative Appeals Tribunal.

4. The respondent pay the costs of the appellant of the appeal to this Court.

DECISION

Murray Douglas McBay, the appellant, applied, pursuant to the Social Security Act 1947, for the grant of an invalid pension. Sections 23 and 24 of that Act provide:

"23. For the purposes of this Division, a

person shall be deemed to be permanently
incapacitated for work if the degree of his
permanent incapacity for work is not less
than 85%.

24. (1) Subject to this Act, a person above
the age of 16 years who is not receiving an
age pension and -

(a) is permanently incapacitated for work or
is permanently blind; and

(b) is residing in, and is physically present
in, Australia on the date on which he
lodges his claim for a pension,

shall be qualified to receive an invalid
pension."

2. The respondent, the Director-General of Social Security, rejected the application on the ground that the degree of Mr McBay's incapacity was less than that required for qualification for an invalid pension, that is to say that he did not have a permanent incapacity for work of not less than 85%. Mr McBay appealed against that decision to the Administrative Appeals Tribunal. The Tribunal, constituted by a Senior Member, dismissed the appeal. From that decision Mr McBay appeals to this Court contending that the Tribunal erred in law in coming to the conclusion that the appellant had not demonstrated a permanent incapacity of not less than 85%.

3. The appellant was, at the time of the hearing before the Tribunal, aged 52 years. He is a qualified motor mechanic and worked for many years in the motor trade. In 1972 he injured himself when lifting a gear box but after treatment returned to work. He continued to experience pain and in April 1976 a laminectomy was performed. Eight weeks after this surgery he returned to work but he found difficulty with some operations and began taking time off. In August 1976 he left his job and began working at home, doing light mechnical repairs. This proved difficult and he obtained a job at a garage doing light under-bonnet work with help. The assistant was retrenched, forcing him to give up the job. Once again he tried to work at home but this proved too difficult. He gave up work in September 1979 and has not worked since.

4. A number of medical reports were admitted in evidence before the Tribunal. In addition oral medical evidence was given by a consultant neurosurgeon, Dr R G Rushworth - called by the appellant - and by Mr Frederick Ehrlich, a surgeon called by the respondent. The Tribunal, in making its findings, chose to rely primarily upon the evidence of Mr Ehrlich. Counsel for the appellant accept, as they must, that this choice was a decision as to fact and not susceptible of appeal to this Court.

5. They argue however - and this was their first ground of appeal - that the Tribunal erred in law in framing, and acting upon, findings which purported to summarise the views of Mr Ehrlich but which, so they contend, in fact disregarded certain significant qualifications which Mr Ehrlich attached to those opinions in his evidence. In the result, it is said, the findings of the Tribunal as to the appellant's medical condition, though purporting to be based upon Mr Ehrlich's evidence, lack any foundation in the evidence before the Tribunal. If that ground - and that ground alone - were made out, the matter would have to be remitted to the Tribunal for further consideration upon the basis of the evidence, properly understood.

6. I have reached the conclusion that the appellant is entitled to succeed upon his second ground of appeal and that upon the basis of Mr Ehrlich's evidence - whether or not summarised with sufficient accuracy in the Tribunal's decision - Mr McBay is entitled as a matter of law to a direction that the respondent deal with his application upon the basis that he meets the test imposed by s.23 of the Social Security Act. Under those circumstances there is no need for me to determine the correctness of the first ground argued by counsel for the appellant.

7. In his report, which was admitted in evidence before the Tribunal, Mr Ehrlich proferred this opinion in relation to the appellant:

"His history and findings are consistent with
the diagnosis of having had a lumbar disc
lesion and it seems that surgery, whilst
improving his condition, has not led to
sufficient relief to return him to his former
duties.

In my opinion, the claimant is not fit for
the types of duties carried out in the past
but would be able to cope with the lighter
work not involving frequent stooping or heavy
lifting tasks. Work permitting a variety of
postures such as standing about, sitting or
moving about from time to time would be
particularly suitable. Part time work would
probably be the most he could aspire to.

Discomfort is likely to continue at various
levels probably for the rest of life. Bouts
of aggravation are to be anticipated
particularly if provoked by undue stresses
such as stooping or lifting or sudden or
excessive movements but may well occur
spontaneously for no provocation whatever.

It is therefore concluded that, whilst a good
deal of disability may well exist in this
case this nevertheless permits a variety of
selected occupations should these become
available. It seems therefore inappropriate
to estimate disability to be as high as
eighty five per cent in this case, at least
from the surgical point of view. It is,
however, recognised that there may be enough
restriction to render employment very
difficult against the background of the
present socio-economic climate. At the age
of 52 furthermore it is unlikely that any
rehabilitation programme directed towards
returning people to full time employment is
likely to undertake such a case. He would
probably be able to cope with part time light
mechanical work (eg re-conditioning motor
cycle engines at a work bench) without the
need to seek a rehabilitation programme but
exploration of such options is rather outside
the traditional clinical sphere."

8. In his oral evidence in chief Mr Ehrlich elaborated his view as to work prospects:

"Q You say that while he certainly has evidence of a

lumbar disc lesion, that he would be able to cope
with lighter work not involving frequent stooping
or heavy lifting?

A Yes. I qualified that a little further, I think.
He certainly has a significant back problem, I
thought, and he certainly would have substantial
limitations in his capacity to work.

Q He certainly could not do his prior job?

A No, he would have to get into difficult postures
and crawl under vehicles and lift heavy weights,
and he could not do that. If sufficient selected
duties could be found for him, such as would not
require much bending and lifting, would not
require him to sit all day or to stand all day, or
walk all day, which would permit him to change
his position and pattern of movement from time to
time, I think he could cope, yes.

Q What about work of a process nature at an assembly
line, provided he does not have to sit or stand
all the time?

A Yes, that should be right. If he worked at some
assembly line handling motors he would not have to
lift, or were so light he could lift them easily
and would not have to keep the same posture all
the time, he would probably be all right.

Q Would you say, in the light of your examination
and findings in relation to his back complaints,
that he would be able to handle a position at a
self service station operating the till and taking
a person's money, and so on, who bought petrol,
and served at the counter?

A Yes, I think that would be a suitable position.

Q In respect of the jobs you have mentioned, you
perceive he would be able to do them over a normal
working day, a normal working week?

A Probably, I think he has had enough back trouble
in the past to have a risk of having acute upsets
again. He might have some absenteeism. I can
envisage this man might have bouts of acute back
pain, keeping him off work from time to time, but
again I think he should be able to cope with
suitable light work if it could be found.

Q This could be covered under the sick leave
provisions that would apply to particular
employment?

A Yes, with any luck, yes.

Q Would you see any clerical work, where he is
mainly in a sedentary position, being within his
capacities?

A Providing he would not be desk bound all day, if
he could walk around and do a little message, and
walk around, this would be all right.

Q He certainly would not be able to do any job that
required a fixed standing position or a fixed
sitting position, or standing most of the time?

A I think that would be trying him rather hard. He
might be able to cope with it, but he might be
uncomfortable.

Q From your examination, do you consider that Mr
McBay has a severe or only a moderate back
complaint?

A I do not know if such terms are particularly
useful. I think he has a significant back
problem. I am sure he has got a back problem."

9. In cross-examination Mr Ehrlich expressed the opinion that the appellant's condition would not improve, and that, if anything, it would probably get worse as he got older. He accepted that the appellant genuinely suffered with pain and that the pain was a chronic problem. His evidence went on:

"Q His pain would be exacerbated by any significant physical effort?

A Yes, probably.

Q So if he was to start lifting anything more than a very light

weight, that would cause him pain, would you agree?

A It could. He might get away with it some of the time, but I do not think he would be too wise to risk it.

Q When you say risk it, do you feel he can do himself some damage?

A Not in the sense of acceleratinng his spondylosis, but I
think he could well produce acute symptoms. He could do
himself damage in the sense that he could have an acute back
pain which might put him to bed for days on end.

Q Could that back pain extend for weeks?

A Yes.

Q Could he do any permanent damage by exerting himself beyond his

capacity?

A Anybody can do that. Anybody who exerts himself or herself
beyond their capacity can inflict pain. He has a vulnerable
spine, a degenerating spine. At his age, with his history,
he would be well advised to avoid heavy lifting.

Q Also in his stooping he would find it difficult?

A Yes.

Q That would also cause him pain?

A It may well do so, yes.

Q And prolonged sitting would cause back discomfort?

A Yes, it could.

Q And also walking long distances would cause him discomfort?

A Yes.

Q Standing in the one place for a long time would cause him discomfort

and pain?

A Yes." . . .

"Q Did he appear to you to be a person who enjoyed working and would like to work if he could get the opportunity?

A I thought that was so, yes. I did not think he was shirking work. I did not think he was trying to put anything over.

Q So you say in your report, under the heading of opinion,
that you consider part time work would probably be the most
he could aspire to?

A To be realistic, yes.

Q So therefore he would need a very generous employer who
would not want him to sit too long, who would not want him
to stand too long, who would allow him to take frequent
rests and walk around, who would not mind if he took days
off from time to time and possibly weeks, and who would be
prepared to employ him for only a few hours a day?

A Yes. I do not know if the employer has to be very generous
to do that. I think if I were running a repair business for
lawn mowers and I wanted to look for a competent mechanic
who would work as he felt able to do, and if I had some
assembly set up where the motors are more or less at face
level so you do not have to bend down too much, then I would
be quite happy to employ a chap like that, not out of
generosity, just out of commercial sense."

"Q What you are suggesting is if he was to do this type of

work, that some other person would have to lift the machine
up to the bench and lift them back down for him, and do any
heaving lifting that might be necessary?

A I said before I do not think he should do heavy lifting. He
may well get away with it, but were he my patient, I would
say to get other people to do the lifting for you. He could
fit into a set up, if there is such a set up existing, the
set up would be that he is a mechanic and he should be able
to fix motors, pistons, cylinders, valves, whatever
mechanics do, and if the work could be provided in such a
way that the stuff is more or less at a comfortable working
level, say a bench top, that the motors were not huge
motors, that they were,say, lawn mower motors or motor cycle
motors, that he would not have to be glued to his workbench
all day, but he could go and get a bit of grease, and ring
up and find spare parts for it, it would turn out that he
might be able to sit some of the time or stand some of the
time, or walk about. He is capable of all those things,
provided it is not done in a straight eight hour shift
without changing the pattern of the movement or the rhythm.

Q There are a lot of probabilities that would have to be
available for him to get the type of job that would be
suitable for him and his back, would you agree?

A Of course.

Q And you also said in your report that with his restriction,
it would render employment very difficult against the
background of the present social, economic climate?

A I was aware of all the things you have brought up. The fact
that you would have to have very tailormade working
conditions and these days beggars cannot be choosers - he
might in fact not be able to find such a job. He is capable
of doing a job. The sad thing is a man with his lifelong
experience of being a mechanic and his desire to do some
work and his ability to do some work is virtually
unplaceable at the moment, I would imagine, but that is how
things are.

Q You have recommended motor cycle engines at a work bench?

A I have. I have just made this one up. There are other things he

could do.

Q That is precisely it. You have just made that up, that is the situation, is it not?

A Of course. What I really tried to convey is a picture of a
man with limited ability who can work provided - and I
listed the provisos and I am giving an instance of the kinds
of things that could fit in. There might be other jobs
outside motor mechanics that he could do.

Q You do not know if any of the jobs are available and would be

offered to this type of man, do you?

A Of course I do not."

10. No evidence was placed before the Tribunal as to the existence of any job providing the "tailormade working conditions" which Mr Ehrlich thought necessary to enable Mr McBay to return to the work-force. In particular there was no evidence that there existed the opportunity for employment in either of the two situations specifically mentioned by him: working as a motor mechanic at an assembly line or at a bench, without lifting or bending, or operating the till at a self service station, with the opportunity to stand and move around as he wished. There was evidence pointing in the opposite direction. This took the form of a letter prepared for the purposes of the appeal by Mr Ostler, Employment Office Manager of the Auburn Job Centre of the Commonwealth Employment Service. This letter read, in part:

"On the basis of the medical information
supplied relating to his physical capacity,
and bearing in mind that Mr McBay is 52 years
of age, and the fact that he is unable to
continue working in his own trade, his
employment prospects in both long and short
terms would be very remote.

It is highly unlikely that Mr McBay will be
able to secure a part time position, given
current economic conditions, whilst his
chances of obtaining full time employment,
even on any possible base of light duties,
would be virtually implausible because of
several factors apart from those already
mentioned, including the extremely high
number of retrenchments within the Auburn
area, the number of additional people (or
spouses) seeking second jobs to supplement
their income, and the traditional influx of
school leavers at this time of year.

All of the above factors when combined create
a situation of fierce competition amongst
job-seekers, and Mr McBay would be trying to
obtain employment on the open market at a
time when there are traditionally fewer
vacancies being received at this time of
year, and given that employers are generally
less inclined to put staff on in the current
economic recession.

In view of all factors mentioned, Mr McBay's
chances of obtaining employment would appear
to be extremely limited."

11. The letter from Mr Ostler was tendered by counsel for the appellant without objection on behalf of the respondent and was admitted as evidence of the facts and opinions stated therein. The respondent did not require the attendance of Mr Ostler for cross-examination. Consequently, and in the absence of special circumstances or an agreement to the contrary, the respondent must be treated as having conceded the correctness of the content of the letter: see Phipson, Evidence (13 edition) para 33-69 and Browne v Dunn (1894) R.67 at pp 70-71, 76-77, Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 1 at pp 16-18. In any event, and apart from concession, the opinions set out in the letter were in relation to matters in respect of which Mr Ostler had expert knowledge. The opinions were not inherently unreasonable. They were uncontradicted. Under such circumstances the Tribunal was bound to accept the correctness of the views expressed: see Holman v Holman (1964) 81 WN (NSW) 374, Hardy v Gillette (1976) VR 392 and my discussion of those cases in Repatriation Commission v Reid [1984] FCA 145; (1984) 54 ALR 157 at pp 162-163. No doubt the letter must be read as limited to the situation within the Auburn area but Auburn is not only the suburb of Sydney within which the appellant resides but is a major industrial centre with emphasis upon the motor industry. Under these circumstances Mr Ostler's conclusions that, within the Auburn area, the employment prospects of Mr McBay, having regard to his physical capacity and age, are in both the long and short terms very remote, that his chances of obtaining full-time light employment are "virtually implausible" and that it is "highly unlikely" that he could obtain part-time employment constitute powerful evidence that Mr McBay is, under present economic conditions, in practical terms unemployable.

12. The Tribunal did not, in its decision, refer to Mr Ostler's letter. The reasoning of the learned Senior Member is contained in para 9 of the Decision, as follows:

"I accept Mr. Ehrlich's assessment as a
well-considered and sympathetic one. There
is no suggestion that there is any
psychological difficulty or "functional
overlay"; but I have perused the reports of
Drs. Lucire, Gatenby and Mrs. Egan. The
present socio-economic climate is a difficult
one in regard to the finding and holding of
jobs, for anyone, let alone someone with a
significant back disability. The applicant
has obviously shown himself a most competent
tradesman, and a man of resource as shown by
his being able to survive, as he put it, by
taking in lighter mechanical work at home,
until he found himself too much troubled with
pain. I think it to be established on the
probabilities that there are a range of jobs
with which he could physically cope, though
sometimes experiencing pain and loss of work
time. His years of experience would I
consider render him better equipped than most
to undertake garage supervising work or the
running of a self-service petrol station,
inter alia. And it is likely I consider that
a man of his responsibility and experience
and mechanical ability, would be ahead of
others in the scramble for jobs at the
present time. I find the case a somewhat
difficult one to decide; but doing the best I
can with the evidence placed before me, I
believe it not to have been shown on the
probabilities that the applicant is
permanently incapacitated for work to a
degree of not less than 85%. That being so,
the decision appealed against should be
affirmed."

13. The complaint of the appellant is that, although the reasoning makes passing reference to the difficulty of someone in the position of the appellant finding and holding a job in "the present socio-economic climate", the Tribunal has failed to have regard to the evidence in relation to the availability of suitable work. The appellant refers to Re Panke and Director-General of Social Services (1981) 4 ALD 179, a decision in which the Tribunal sought to state the principles governing the application of ss. 23 and 24 of the Social Services Act to persons fit only for selected duties. In that case the President of the Tribunal, Davies J, expressed the view that "the Social Services Act is welfare legislation designed to supplement the income of and to provide other benefits for persons in need". He pointed out that the phrase "incapacity for work" had a long history of use in workers' compensation legislation and cited passages from decisions in both the High Court of Australia and the House of Lords which indicated that, in such a context, a person suffering such a physical defect as to make his or her labour unsaleable in any reasonable market is incapacitated for work. The following sentence from the judgement of the Full High Court in Wicks v Union Steamship Company of New Zealand [1933] HCA 58; (1933) 50 CLR 328 at p 338 is particularly telling and relevant to the present case:

"This condition" (ie physical incapacity for
work) "is satisifed when capacity for earning
has gone except for the chance of obtaining
special employment of an unusual kind".

14. Davies J applied the workers' compensation cases to conclude that "the term incapacity for work in the Social Services Act denotes incapacity to engage in remunerative employment, that is to say, a lack of capacity for earning".

15. The other members of the Tribunal in Panke, Mr A N Hall (Senior Member) and Dr M Glick (Member) delivered a joint decision, with which Davies J expressed his agreement in substance. They noted the submission made to them on behalf of the applicant "that a person is wholly incapacitated for work in the relevant sense when he has a physical defect which makes his labour unsaleable in any market reasonably accessible to him" and contrasted the submission put on behalf of the Department that incapacity was independent of "impermanent factors such as the present state of the economy or of the labour market reasonably accessible to an applicant for invalid pension". The Department conceded that it was proper to have regard to the type of jobs that exist as jobs in the community and that might be suitable to be undertaken by a person in the position of the applicant but it submitted that it was irrelevant to consider whether any such job was available to the particular applicant. After referring to various judicial decisions in the area of worker's compensation law, to the history of Commonwealth legislation in respect of social services and to the relationship between the provisions of the Act relating to the payment of unemployment benefits and of invalid pensions the two members rejected the submission put on behalf of the Department, holding that regard must be had to the availability of suitable work to the particular applicant. This involved, they said, two distinct steps - "firstly an evaluation in purely medical terms of the person's physical or mental impairment and secondly, the ascertainment of the extent to which that physical or mental impairment affects the person's ability to engage in paid work". They concluded their discussion of the relevant principles by saying:

"In our view, it is not enough for the
purposes of s 23 of the Act, to have regard
in any abstract sense, simply to "jobs that
exist as jobs" in the community. The
provisions of the Act with respect to
unemployment benefits . . . indicate that
when the Act refers to capacity for work, it
is concerned with the capacity to undertake
paid work that is suitable to be undertaken
by a person. It is only after a fair
assessment of the extent of the person's
physical or mental impairment and the impact
which that impairment is likely to have upon
his capacity to undertake suitable paid work
that, in our view, a proper assessment of the
degree of incapacity can be made.

The assessment of what work is suitable to be
undertaken by a person would appear to
require consideration of matters such as the
nature and extent of his disabilities, his
capacity to sustain his work effort
throughout a normal working day or week, his
age, his previous work experience and the
types of paid work available in the community
which a person with those characteristics may
reasonably be expected to be able to perform.

If in a case of difficulty a medical
practitioner doubts his competence to make
such an assessment he will no doubt need to
qualify his report in some suitable respect
so that the matter can be further considered
by the Director-General. The degree of
incapacity will then depend upon an
assessment, in each individual case, of the
extent of the residual capacity for suitable
work against the capacity for work which the
person, absent his physical or mental
impairments, might have expected to enjoy."

16. The decision in Panke has been applied in numerous subsequent decisions of the Tribunal; see: Re Pardo (1981) 4 ALN N21, Re Robertson (1981) 4 ALN N21, Re Webb (1981) 4 ALN N22, Re Ricci (1981) 4 ALN N73, Re Milosaljevic (1982) 4 ALN N188, Re Papadopoulos (1982) 4 ALN N284, Re McGeary (1982) 4 ALN N310, Re Di Palma (1982) 4 ALN N319, Re Mihailov (unreported V81/109 19th April, 1982), Re Howard (1983) 5 ALN N178, Re Ververellis (1983) 5 ALN N158, Re Dabbach (1983) 5 ALN N235, Howard v Director-General of Social Security (1983) 5 ALN N369, Re Fliedner (1983) 5 ALN N402, Re Zammit (1984) 5 ALN N479, Re Sanderson (1984) 5 ALN N514.

17. Panke was discussed, without disapproval, by a Full Court of this Court in McDonald v Director-General of Social Security (27 March 1984, not reported) but the point at issue in that appeal was a different one: the duration of the anticipated incapacity necessary to constitute 'permanent' incapacity. The decision was referred to, again without disapproval, by Fitzgerald J in Howard v Director-General of Social Security (14 December 1983, not reported). In Khalil v. Director General of Social Security (6 December 1984, not reported) Morling J. expressed agreement with the decision but the contrary was not argued. It has not yet been necessary for this Court, as such, to consider argument as to the correctness of the views expressed in Panke which I have set out above. I find the reasoning in the decision persuasive but, once again, the contrary has not been argued. Having regard to that fact, to the fact that the decision was one to which a judge of this Court was a party, in his capacity as the President of the Tribunal, and to its acceptance in subsequent decisions of the Tribunal it is appropriate to deal with the present matter on the basis, without so deciding for myself, that the principles set out in the decision are correct.

18. The application of Panke to the present case requires, first, an evaluation in medical terms of the extent of Mr McBay's physical disability. The Tribunal accepted the evaluation of that disability made by Mr Ehrlich. Secondly, it is necessary to ascertain the extent to which that disability impairs his ability to engage in employment. I have already quoted the view of Mr Ehrlich on that question. His assessment, in summary, was that, at most, Mr McBay could aspire to employment under 'a very generous employer who would not wish him to sit too long, who would not want him to stand too long, who would allow him to take frequent rests and walk around, who would not mind if he took days off from time to time and possibly weeks, and who would be prepared to employ him for only a few hours a day'. These are most significant constraints. Any job which met those limitations would aptly be described, in the words used in Wicks, as "special employment of an unusual kind". There is no evidence that such employment is available to Mr McBay. Upon the contrary, the evidence of Mr Ostler which, as I have already indicated, the Tribunal was bound to accept, indicates to the contrary. It follows that, once it is accepted, as Panke requires, that regard must be had to the availability of work for the particular applicant, with his particular disability, the only conclusion open to the Tribunal upon the evidence was that Mr McBay is permanently incapacitated. The Tribunal should have allowed his appeal. As this is a conclusion of law there is no advantage to be gained by my remitting the matter to the Tribunal. Section 44(4) of the Administrative Appeals Act empowers this Court, in determining an appeal to it against a decision of the Tribunal, to make such order as it thinks appropriate by reason of its decision. I propose to make the order which, in my opinion, the Tribunal was - and would on remittal be - bound to make, namely a remittal to the Secretary of the Department for reconsideration on the basis that the applicant is, and has since the date of his application, been permanently incapacitated for work.

19. Before parting with the matter I should draw attention to the time which has elapsed in the determination of this claim. The application for a pension was lodged on 30 June 1980. It was rejected on 29 September 1980. On 14 October 1980 Mr McBay lodged an appeal to the Social Security Appeals Tribunal. Almost a year later, after various medical examinations and a review of the decision by that Tribunal, the Director-General re-affirmed his refusal of the application. On 29 October 1981 Mr McBay sought review in the Administrative Appeals Tribunal but the matter was not heard until 20 and 21 January 1983, the decision being announced during the following week. On 25 February 1983 a Notice of Appeal to this Court was filed. The Appeal Book, which could have been prepared within days, was not filed until 21 December 1983. For reasons which counsel were unable to explain to me no steps were taken to bring the matter on for hearing until, on December 1984, I fixed it for hearing on the first day of this term, 4 February 1985. This decision, holding that Mr McBay is entitled to receive a pension, comes 4 years and eight months after his application and over 2 years since the decision of the Administrative Appeals Tribunal. The delays involved in bringing the matter on before the Administrative Appeals Tribunal and before this Court reflect no credit upon the solicitors for the appellant. It may be that, in fairness to applicants and in order to avoid bringing into disrepute the system of administrative review, the Department should institute procedures routinely to monitor the progress of appeals and, where necessary, to take action to ensure that cases proceed efficiently.