Clark, Alan v Repatriation Commission

[1984] FCA 173

Re: ALAN CLARK
And: REPATRIATION COMMISSION
No. 182 of 1983
1 FCR 469
Repatriation Act

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
St. John J.(1)

CATCHWORDS

Repatriation Act 1920 - appeal against decision of Review Tribunal - whether failure of Tribunal to supplement medical evidence before it error of Law - investigatory and adversary aspects of Tribunal's function.

Repatration Act 1920 Sections 107VY, 107VZ

Repatriation - Claim for pension - Nature of proceedings before Repatriation Tribunal - Repatriation Act 1920 (Cth), s. 107vz.

HEADNOTE

Held: (1) That failure by the Tribunal to avail itself of further medical evidence by use of s. 107vz of the act in the absence of a request from either appellant or respondent was not an error of law.

Repatriation Commission v. Williams (1984) 1 F.C.R. 245; Repatriation Commission v. Campbell (1984) 1 F.C.R. 249, not followed.

Repatriation Commission v. Reid unreported (Federal Court of Australia, Wilcox J., 1 June 1984), referred to.

(2) That having regard to the adversary aspects of the proceedings before the Tribunal, and the desirability of finality, orders should be made allowing the appellant's claim rather than remitting the matter to the Tribunal.

HEARING

Sydney, 1984, May 15, June 26. #DATE 26:6:1984

APPEAL.

Appeal from a decision of the Repatriation Tribunal refusing a claim by the appellant.

A. Hill, for the appellant.

L. Katz, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Australian Legal Aid Office.

Solicitor for the respondent: T. A. Sherman, Commonwealth Crown Solicitor.

G.F.V.

ORDER

The applicant's claim for incapacity resulting from cervical spondylosis be allowed as and from December 1977.

Orders accordingly.

JUDGE1

After announcing my decision to uphold the appeal in this matter, I also deferred making orders consequent upon such decision until such time as counsel had the opportunity of addressing me as to what orders should be made and, in particular, to address me upon the nature of the proceedings before the Tribunal, the decision of which I had decided to set aside. In particular, I requested submissions as to the nature of the proceedings before the Tribunal as there are indications in the Repatriation Act 1920 ("the Act") that they could be regarded , in some aspects, as adversary and, in others, as investigatory or inquisitorial. Such submissions were made and counsel helpfully directed my attention to some cases in which these matters were touched upon. As well as the benefit of counsels' submissions, I have had the advantage of reading the judgment of Wilcox, J. in Repatriation Commission v. Reid (unreported, 1 June 1984), which was delivered after such submissions were made.

1. The Act provides for claims for pensions to be decided initially by the Repatriation Commission. Members of the forces, against whom decisions have been made, may make application for review of the decision by the Tribunal; S.107VC of the Act. By S.107VG of the Act, the Tribunal, in its function, is not bound by "technicalities, legal forms or rules of evidence". Only legal practitioners of five years standing may be appointed President of the Tribunal; only legal practitioners or graduates in law may be appointed to the office of Deputy President; S.107VZJ. By S.107VN, the Tribunal is constituted by the President or an Deputy President and two others and by S.107VT, the President or, in his absence a Deputy President, shall preside over the proceeding.

2. Counsel for the Commission urged me to follow the course taken by Fitzgerald, J. in two cases, Repatriation Commission v. Williams and Repatriation Commission v. Campbell (unreported, both delivered 30 March 1984), where that learned judge held that the failure of the Tribunal to avail itself of further medical evidence by use of S.107VZ of the Act was an error of law and orders remitting the matters for further consideration by the Tribunal were made. In both those cases and in Reid's case, the disease in question was one of unknown aetiology. In Reid's case Wilcox, J. declined to take the same course as Fitzgerald, J.

3. Sub-section 107VY(2) empowers the presiding member, or a person authorised by the presiding member, to summon a person to give evidence and to produce documents and S.107VZ enables such presiding member to request the Secretary of the Commission to forward further documents, obtain further documents and to arrange for the making of any investigation or medical examination that he thinks necessary.

4. In the review proceedings both the applicant and the Commission are restricted to non-legal representation by S.107VU of the Act. Except where the applicant had legal qualifications, the only person with such qualification at a Tribunal proceeding would be the presiding member. These factors induce me to the view that the applicant, the Commission and the Tribunal itself are given the opportunity to persuade the presiding member to exercise the powers referred to. The power is vested solely in the presiding member. It is, no doubt, to be exercised judicially, but a failure to exercise it without a request from either the applicant, the Commission or the Tribunal could not, in my view, amount to an error of law on the part of the Tribunal.

5. It is for these reasons that I respectfully disagree with Fitzgerald, J.'s decision to the effect that failure to supplement a paucity of evidence by exercising the powers under S.107VZ is an error of law of the Tribunal. There is no suggestion that, in the proceedings under appeal any request for further witnesses or documents was made.

6. The provisions relating to proceedings before the Tribunal indicate that they are, at least in part, adversary in nature. I upheld the appeal because the Tribunal's findings of fact destroyed a factual basis upon which medical experts made their reports.

7. On appeal to this court pursuant to sub-section 107VZZH(4) of the Act, this court is given wide powers to make "such order as it thinks appropriate by reason of its decision". The adversary aspects of the proceeding before the Tribunal justify this court in taking the view that finality is desirable in the interests of both the Commission and the applicant. Further, the resources of the Commission to present its case in a complete and satisfactory way far exceed those of most applicants. In the instant case, the Commission was well aware of the history of symptoms given by the applicant and accepted by the Tribunal . It was the Commission's failure to acquaint their medical experts with those alleged symptoms which led it to present expert medical evidence based upon the lack of such symptoms. In the result, the applicant's submissions as to the order to be made should be accepted, and I order that the applicant's claim for incapacity resulting from cervical spondylosis be allowed as and from 3 December 1977.