Collins v Repatriation Commission

[1980] FCA 127

Re: RONALD NORMAN COLLINS
And: THE REPATRIATION COMMISSION
No. G11 of 1980 (1980) 48 FLR 198
War Pension - Appeal - Defence - War Pension - Quasi-judicial Tribunals

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)

CATCHWORDS

War Pension - Partial physical incapacity - Inability to earn a living wage - Obligation of Repatriation Review Tribunal to consider applicant's claim - Obligation to state reasons for its decision and any findings of fact - Failure to state all reasons.

Appeal - Appeal from Repatriation Review Tribunal on a question of law - whether Tribunal entitled to decide in accordance with "equity and good conscience" - meaning of "Substantial justice and the merits" - Whether Tribunal bound to comply with provisions of Repatriation Act - Whether appeal lies where reasons for Tribunal's decision are not stated. Repatriation Act 1920 ss.27, 35, 101, 107VG, 107VH, 107VK, 107VZZB, 107VZZG, 107VZZH, Schedules 1 and 2.

Defence - War pension - Intermediate rate - Partial physical incapacity - Inability to earn living wage - Reassessment of pension by Repatriation Board - Review by Repatriation Review Tribunal - Determination of new rate - Failure of Tribunal to consider applicant's claim to intermediate rate - Obligation of Tribunal to state reasons for decision and any findings of fact.

Quasi-judicial Tribunals - Repatriation Review Tribunal - Whether Tribunal entitled to decide in accordance with "equity and good conscience" - Tribunal's duty to act in accordance with "substantial justice and merits" - Whether Tribunal bound to comply with provisions of Repatriation Act - Appeal where no reasons are stated - Repatriation Act 1920 (Cth), ss. 27, 35, 101, 107VG, VH, VK, VZZB, VZZG, VZZH, Scheds. 1, 2.

HEADNOTE

The applicant was in receipt of a pension under the Repatriation Act 1920 at the intermediate rate. The Repatriation Board reviewed his entitlement and reassessed it at sixty per cent of the general pension rate. The applicant appealed to the Repatriation Review Tribunal contending that his rate of pension should not have been altered. The tribunal substituted an assessment based on eighty per cent of the general pension rate. The applicant appealed to the court alleging an error of law by the Tribunal.

Held: (1) The Tribunal had erred in law in that, being obliged to give reasons for its decision, it had failed to refer therein to the applicant's claim to an intermediate rate of pension and thus had overlooked a relevant consideration.

Sullivan v. Department of Transport (1978), 20 ALR 323, applied.

(2) The Tribunal was obliged to proceed in accordance with the law and comply with the provisions of the relevant legislation. It had no charter to act in making its decision in accordance with "equity and good conscience".

British Imperial Oil Company Ltd. v. Federal Commissioner of Taxation (1925), 35 CLR 422; R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933), 50 CLR 228; Repatriation Commission v. Law (1980) 47 FLR 57, referred to.

(3) The Tribunal was required by s. 107VK of the Act to state all the facts found and was obliged to give its reasons for denying the applicant his entitlement to a pension at the intermediate rate.

Re Poyser and Mills' Arbitration, (1964) 2 QB 467; Victorian Chamber of Manufactures v. Commonwealth (1943), 67 CLR 335, applied.

(4) Appeal allowed.

HEARING

Adelaide, 1980, June 30; July 1; September 17. #DATE 17:9:1980

APPEAL.

Appeal under s. 107VZZH of the Repatriation Act 1920 from a decision of the Repatriation Review Tribunal.

T. Garrood, for the applicant.

D. J. Bleby, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Wilkinson Townsend.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

T. J. GINNANE

ORDER

1. The appeal be allowed.

2. This matter be remitted to the Repatriation Review Tribunal for further hearing in the light of this decision, with the hearing of such evidence, if any, as may be presented to the Tribunal.

3. The respondent pay to the applicant his costs of this appeal.

Appeal allowed.

JUDGE1

Ronald Norman Collins ("the applicant") is a "Member of the Forces" within the meaning of s.100 of the Repatriation Act 1920 ("the Act") having served on war service with the Royal Australian Air Force during World War II from 25 May 1943 until 31 July 1945. During this period he had active service outside of Australia.

Since 1974 the applicant has been in receipt of a pension under the Act and since 1977, until its cancellation, a pension at what is called the Intermediate Rate, but which is more correctly defined as the rate prescribed by paragraph 6 of Schedule 1 of the Act. Such pension is in respect of incapacity from his accepted war-caused disabilities. On 7 August 1978 his entitlement was reviewed by a Repatriation Board and the rate of his pension was re-assessed at 60% of the General Pension Rates prescribed by Schedule 1 of the Act. His pension was in consequence of this re-assessment reduced, as aforesaid, as from 24 August 1978.

On 9 November 1978 the applicant lodged an appeal to an Assessment Appeal Tribunal against this re-assessment by the Repatriation Board. However pursuant to the provisions of s.48 of the Repatriation Acts Amendment Act 1979, which section is one of several transitional provisions, the appeal came before the newly created Repatriation Review Tribunal ("the Tribunal") as if it were an application under s.107 VD of the Act.

On 15 August 1979 that Tribunal concluded that it was:

"not satisfied, beyond reasonable doubt, that the decision of 7/8/78 is the decision that it would have made if it had conducted the proceeding in which that decision was made and therefore the Tribunal sets aside that decision and substitutes for that decision the following decision:

'Incapacity from the service-related disabilities is assessed at 80% of the General Rate as from 24/8/78'."

The applicant appealed to this court pursuant to s.107 VZZH of the Act which authorises an appeal from the Tribunal on a question of law. Essentially the appeal was launched because of the applicant's contention that he was entitled to have his pension assessed at the Intermediate Rate, namely in accordance with paragraph 6 of Schedule 1 of the Act, to which I refer subsequently. In other words the appeal relates to the assessment of the appropriate rate of pension, and not to the entitlement of the applicant to a pension.

Section 101 of the Act, which is contained in Division 6 thereof, imposes a liability on the Commonwealth to pay a pension to the applicant and is in the following terms:

"101. (1) Upon the incapacity or death - (a) of any member of the Forces who was employed on active service, whose incapacity or death has resulted from any occurrence that happened during the period from the date of his enlistment to the date of the termination of his service in respect of that enlistment; or

(b) of any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service

the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division 1:

Provided that . . . "

Thus it is apparent that the obligation of the Commonwealth to pay a pension is not at large but is subject to the provisions of the Act. The entitlement of the applicant under the Act is a consequence of his incapacity and is to a pension in accordance with Division 1. The word "incapacity" does not appear to be defined by the Act, but a perusal of other provisions indicates that the relevant incapacity is in effect a physical or mental disability rather than an incapacity such as an inability to perform work or earn wages or otherwise.

The crucial provision in Division 1 of the Act in respect of the pension which the Commonwealth is liable to pay is s.35 which is as follows:

"35(1). Subject to section 35AA, the rates of pension payable under this Division and Divisions 6 to 10 (inclusive) are those specified in the Schedules."

There are five Schedules to the Act which provide varying rates of pensions, and Schedule 1 is the relevant Schedule in this matter. It is desirable to set it out in full.

"Schedule 1

GENERAL PENSION RATES

TABLE OF PENSIONS PAYABLE, SUBJECT TO SCHEDULE 3, TO A

WIDOWED MOTHER OR A WIDOW ON DEATH OF A MEMBER OF THE

FORCES OR TO A MEMBER UPON HIS TOTAL INCAPACITY

Column 1 Column 2 Column 3

Pension payable to Pension payable to Pension payable

Widowed Mother on Widow on Death of to Member on

Death of Member Member Total Incapacity

$ $ $

per fortnight per fortnight per fortnight

17 106.40 76.90

1. . . .

1. . . .

1. 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 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 six months or not, as the Commission determines

1. . . .

1. . . .

1. 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 impression given by this Schedule confirms that given by the Act as a whole, namely that the incapacity which the legislation has in mind is a physical or mental disability, and any consequent impairment of earning capacity has no relevance to the rate of pension, unless the Act or the Schedules expressly so direct. Thus for example notwithstanding his total incapacity for the purpose of column 3 of Schedule 1, a member may enjoy full earning capacity notwithstanding his disability. The converse is also true. He may have a minor physical incapacity but in consequence he is unable to earn a living wage.

The three columns of Schedule 1 provide the General Rates of pension and they are referred to as such. The rate of pension prescribed by paragraph 3 of Schedule 1 is the temporarily totally incapacitated rate and shortly referred to as the "T.T.I." rate. Paragraph 6 of the Schedule, which is particularly relevant here, is referred to as the "Intermediate Rate" of pension. This is probably because it is between the General Rate prescribed by the three columns of the Schedule 1 and the Special Rate of Pension provided by Schedule 2.

Schedule 2 and the subsequent Schedules prescribe the rates of pension payable to various classes of persons and in respect of various types of disabilities. Apart from the first paragraph of Schedule 2 the schedules make no reference to impairment of earning capacity. This first paragraph is in the following terms:

"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)."
In so far as is relevant to this matter s.27 provides that:

"(1) Each Board shall be charged with the duties of -

(a) determining whether the incapacity from which a member of the Forces is suffering or from which he had died -

(i) in fact resulted from an occurrence that happened during his war service;

(ii) . . .

(iii) . . .

(iv) . . .

and in the case of incapacity the nature and extent thereof;

(c) . . .

(d) assessing, from time to time, the rates of pensions of members of the Forces and their dependents, and determining the dates of the commencement and cessation of such pensions;

(e) . . .

(f) . . .

(g) . . .

(h) . . .

(j) determining whether a member of the Forces is permanently unemployable.

(2) The Commission may, in such cases as it thinks fit, make any determination or assessment specified in paragraphs (a) to (j) (inclusive) of the last preceding sub-section and may, at any time, direct that any particular case or cases or a particular class be referred to it for assessment or determination."

Since 1 July 1979 the Act has provided for a review of certain of the decisions of the Board and the Commission by the Repatriation Review Tribunal. Section 107 VZZH provides for an appeal to this Court on a question of law from decisions of the Tribunal and the relevant parts thereof are as follows:

"(1) An applicant in a proceeding before the Tribunal or the Commission may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

(2) . . .

(a) . . .

(b) . . .

(3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with sub-section (1).

(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5) Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and 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."

For the purpose of determining whether the applicant correctly labelled the alleged error of the Tribunal as an error of law, it is necessary to consider the Tribunal's reasons for its decision in the light of the evidence before it. Only if the alleged error can be so characterised is this court entitled to intervene.

After noting that the applicant had enjoyed an additional pension at the temporarily totally incapacitated rate from 11 July 1977 until 26 January 1978 (which period covered hospital treatment and convalescence) the Chairman enquired of him whether he thought the reduction from the temporarily totally incapacitated rate was premature or was fair in the circumstances. The evidence thereafter was as follows:

"MR COLLINS: It was totally premature.
MR HARDING: Do you? Why?
MR COLLINS: I don't think it was warranted. Well, to my reading of the information is that if you're not earning - if your not in a position to earn a liveable income then you should be on T.T.I. or an Intermediate rate sorry. MR HARDING: Well could we ---
MR COLLINS: Sorry just a moment, you were mentioning T.T.I. rate weren't you
MR HARDING: T.T.I. yes.
MR COLLINS: No, I'm sorry, I was thinking of the Intermediate rate, I beg your pardon.
MR HARDING: Oh well, we'll get to that - sorry - yes I might have misled you. Taking first of all, you had six months on the T.T.I. equivalent, this was for your operation and six months convalescent. Do you think that you were ready by the end of January 1978, do you think that reduction, the cancellation of the T.T.I., was fair and reasonable at that time - putting you back to the Intermediate rate?
MR COLLINS: For T.T.I. - I think it mightn't have been too bad. At this stage I was coming up to take over the audit of the local R.S.L. books - they were having a A.G.M. (Annual General Meeting) in February - and I was sort of starting to work myself back into doing what I felt I could do, and this was going to be in the field of audit. Of course, unfortunately, the chappie that had been elected treasurer died so I sort of swung straight into treasurer - this was in February well -
MR HARDING: February?
MR COLLINS: 78. So on that basis I think in retrospect now, T.T.I. reduction would be right because I did in fact do -
MR HARDING: So your real complaint is that the reduction taking you off the Intermediate rate was premature?
MR COLLINS: That's right.
MR HARDING: And what would your view be about that? Do you think you still should be on the Intermediate rate or something inbetween the 60% to which they reduced you and the Intermediate rate? Have you any views on that?
MR COLLINS: My own personal view is that I should be on the Intermediate rate in view of the wording that's in the Schedules.
MR HARDING: You don't think you should have been reduced at all?
MR COLLINS: I don't think I should have been reduced at all."

Clearly the essence of the applicant's case before the Tribunal was not the assessment by the Board of his incapacity at 60%. It was his claim that the proper decision was that, in consequence of his inability to earn a "liveable income," as he termed it, resulting from that incapacity, he should be on the Intermediate Rate of pension. There is no doubt that when using the expression "liveable income" the applicant was referring to the words "living wage" in paragraph 6 of Schedule 1. Subsequently the applicant gave evidence generally concerning his earning capacity and his earnings from part-time accountancy.

In its reasons for decision the Tribunal mentioned at the outset when stating the applicant's pension history that he had enjoyed the Intermediate Rate of pension from 21 January 1977, but thereafter made no reference to that particular rate of pension (or to paragraph 6 of Schedule 1) nor to the applicant's contention that he was entitled to a pension at this rate. It merely stated that "he considers he should still be on the T.T.I. pension".

After considering all the evidence, including the applicant's oral evidence at the hearing, the Tribunal made the following findings:

"The Tribunal finds that, in respect of the applicant's condition during the period prior to the Board's decision of 7 August 1978, the additional evidence is generally in conformity with the medical opinion and other evidence set out in the departmental records that were available to the Board on 7 August 1978 and that the applicant has not overstated his case. . .

The Tribunal is of opinion that the myocardial ischaemia is the major disability, that it has involved a major change of life-style for the applicant and that both Dr. Thornton and the Board were a little optimistic as to the applicant's ability to engage in sustained light work. . . . . . but the Tribunal interprets the whole picture available to the Board on 7 August 1978 as being that the applicant's real ability was by reason of his accepted heart disability restricted at best to only part-time, rather than full-time, sustained light work. He was not fit for sustained light work, such as light bench work or similar, and even in his light, mainly sedentary-type, accountancy work he was not able to cope without substantial breaks from work. There was obviously also very substantial interference with his social and recreational life." (The underlining is that of the Tribunal).

The Tribunal went on to say that it considered that an assessment of 80% of the General Rate "fairly and justly represents that degree of whole man impairment of capacity caused by the applicant's disabilities" and it substituted that assessment for the Board's assessment of 60%.

Thus, although it made findings favourable to the applicant on all aspects of the evidence which he put forward in support of his claim to a pension at the Intermediate Rate, the Board appears to have given no consideration to his claim to such entitlement nor any reasons for rejecting that claim. It may well have given consideration and have sound grounds for a rejection, but it has not said so in its reasons. Counsel for the respondent conceded that there was nothing in the reasons for decision of the Tribunal which expressly indicated that it had given consideration to the provisions of paragraph 6 of Schedule 1. He also acknowledged that the applicant clearly stated the issue before the Tribunal, namely that he considered he should remain on the Intermediate Rate of pension.

The applicant's counsel contended that an error of law was apparent because, in the light of the obligation on the Tribunal under s.107 VK(1) infra to give reasons in writing for its decision, including any findings of fact, its failure to refer to the applicant's claim to an Intermediate Rate of pension and the supporting evidence indicated that it had overlooked a relevant consideration, and in so doing had erred in law. He cited in support of this contention the views of Deane J. in Sullivan v Department of Transport (1978) 20 A.L.R. 323 at 349, namely:

"The Tribunal's failure to direct its attention to the considerations properly relevant to the determination of it was, in the circumstances, understandable. The consequence of that failure is, however, that the proceedings before the Tribunal miscarried in that the Tribunal failed to deal, by reference to the relevant considerations, with a matter which arose for its determination and which it purported to determine."

Counsel also drew attention to my reasons in that case at pages 350 to 353, and in particular to the consequences which I held flowed from the failure of the Tribunal to give the precise reasons upon which it acted and its findings on material facts.

But for the very persuasive argument of counsel for the respondent I would be of the opinion that the applicant's submission was clearly correct, and that I should remit the matter to the Tribunal with a direction that it give consideration to his claim for a pension at the Intermediate Rate in the light of the applicant's evidence and any further relevant evidence and of the provisions of paragraph 6 of Schedule 1. However, if accepted, the arguments of counsel for the respondent require a contrary conclusion rejecting the appeal on the ground that this court has no jurisdiction.

The respondent's primary submission was that no appeal lay to this court because the Tribunal was not bound to decide the application before it in accordance with law. He based this argument upon s.107 VG of the Act which must be set out in full:

"The Tribunal, in conducting a proceeding, or the hearing of a proceeding, or in making a decision in a proceeding, on a review -

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to -

(i) the effects of the passage of time including the effect of the passage of time on the availability of witnesses; or

(ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a member of the Forces was not reported to the appropriate authorities."

It is convenient at this stage to set out two additional provisions of the Act relevant to the Tribunal's obligations. Section 107 VH deals with the decision of the Tribunal as follows:

"(1) In a proceeding on a review, the Tribunal shall 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 in the proceeding that was not before the Commission or the Board but would have been relevant to the making of a decision in the proceeding before the Commission or the Board.

(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 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.

(4) Where the Tribunal does not set aside a decision the subject of a review, it shall affirm that decision."

Section 107 VK obliges the Tribunal in certain specified circumstances to give reasons for its decisions:

"(1) Where, in a proceeding before the Tribunal, the Tribunal makes a decision relating, in whole or in part, to a prescribed matter, the Tribunal shall cause to be prepared a written record of the decision, containing a statement of the reasons for the decision, so far as the decision relates to the prescribed matter, including any findings of fact in relation to the prescribed matter.

(2) . . .

(3) In this section, 'prescribed matter' means a matter referred to in paragraph (a), (d) or (j) of sub-section (1) of section 27."

The Tribunal in this instance was dealing with a prescribed matter, namely s. 27(1)(d), the assessment of the rate of pension to which the applicant was entitled, and thus was prima facie obliged to comply with s. 107 VK(1).

Counsel relied upon s. 107 VG to support his submission that the Tribunal was not obliged to proceed in accordance with law. He contended that the direction to "act according to substantial justice and the merits and all the circumstances of the case" required the Tribunal to determine applications for review in accordance with equity and good conscience or at least principles analogous thereto. On this basis there was, he submitted, little if any scope for this court to intervene, because only in most exceptional circumstances could it be said that the Tribunal erred in law. He supported his submission with copious authority referring to the old English Courts of Requests, Small Debts Courts, the Industrial Code of South Australia and other legislation where the tribunals in question were directed to arrive at a decision without reference to legal standards. In these circumstances, and even in some instances where an appeal on questions of law was expressly provided, appellate courts have declined to review the decisions. However, in each of these matters the legislature provided expressly and very clearly that the relevant tribunal was to be in its decisions guided only by "equity, good conscience and the substantial merits" or some very similar criteria. I was referred to a number of authorities, (Moses v Parker (1896) A.C. 245, Walkley v Dairyvale Co-operative Limited (1972) 39 S.A.I.R. 327, Ex parte Lucas (1910) 10 S.R. (N.S.W.) 325, Ex parte Martin (1896) 13 W.N. (N.S.W.) 66, Scott v Bye (1824) 3 BING.344, 130 E.R. 338, Peachey v Duncan & Co (1918) N.Z.L.R. 821 Karori Borough v Buxton (1918) N.Z.L.R. 730 Elliott v Hamilton (1874) 2 N.Z. JUR 95, Pearson v Clark (1864) McCassey's Reports (N.Z.) 136, Skinner v Singh (1913) 40 Indian Appeals 106), but first it is necessary to determine whether the Tribunal, as also the Commission and the Board, is entitled to ignore principles of law and the provisions of the Act and to act as would a "court of conscience". Such a decision must be made upon a careful consideration of the relevant provisions of the Act, which provisions, I find, are strongly persuasive to the contrary.

In the first instance it is relevant to note the approach of the majority of the High Court in R v War Pensions Entitlement Appeal Tribunal and Another Ex parte Bott (1933) 50 C.L.R. 228 when considering legislation very similar to s. 107 VG but which has one significant difference. Section 45 W (2) of the then Repatriation legislation was the section corresponding to s. 107 VG and was in the following terms:

"Subject to this Act, an appeal tribunal. . . shall not, in the hearing of appeals, be bound by any rules of evidence but shall act according to substantial justice and the merits of the case . . . " (my underlining)

In contradistinction to the present legislation s. 45 W (2) thus expressly indicated that the direction to act according "to substantial justice and the merits of the case" was subject to the provisions of the Act. Mr. Justice Starke made the following comments on the obligations of the Tribunal in hearing appeals at p.249:

"But sec. 45W(2) enacts that, subject to the Act, an Appeal Tribunal shall not, in the hearng of appeals, be bound by any rules of evidence, but shall act according to substantial justice and the merits of the case (cf Moses v Parker; Ex parte Moses (1896 A.C. 245). No doubt, 'when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same. In the case of a Court of law tradition. . . has prescribed certain principles to which in the main the procedure must conform. But what that procedure is to be in detail must depend on the nature of the tribunal'. (Local Government Board v Arlidge (1915) A.C. 120 at p. 132). Rules laid down by the Act must be observed because they are imposed by the Act and for no other reason."

No doubt it may be said that in that case the rules made by the Act had to be observed even in connection with the hearing of appeals and notwithstanding the direction to act "according to substantial justice and the merits of the case", because the latter direction was expressly "subject to this Act". However when the legislature goes to lengths and in particular to such considerable lengths as it does in the present Act to prescribe in great detail the amount and the circumstances of entitlements, it would be surprising indeed if these prescriptions could be ignored in reliance upon the "substantial justice and merits" provision. Rather one would expect to find express introductory words such as introduce the "equity good conscience and substantial merits" provision in s. 51 of the Industrial Code 1967 (S.A.) namely "notwithstanding anything in this Act or in any other law or any practice to the contrary".

Since the hearing of this appeal the Full Court of the Federal Court has handed down, on 14 August 1980, its judgment in The Repatriation Commission v Nancy Law, affirming the decision of Toohey J. I do not propose to refer to the reasons of the judgment of the court in any detail, but rather to note merely that it is very apparent that they are wholly based on the obligation of the Tribunal to observe the provisions of the Act. Such an obligation denies it the right to act in accordance with equity and good conscience.

I would also refer to the comments of Isaacs J. (as he then was) in British Imperial Oil Company Ltd v Federal Commissioner of Taxation (1925) 35 C.L.R. 422 at p. 438. After referring to the provision in the Income Tax Assessment Act 1922 to the effect that a Board of Appeal (the predecessor to the present Boards of Review) was not "bound in its consideration of any question by any rules of evidence, but in forming its decision shall be guided by good conscience and the facts of the case", His Honour distinguished Moses v Parker supra, an authority here relied upon by the respondent, on the basis that the Tribunal there under consideration was "expressly exonerated from all rules of law and practice". In reference to the abovementioned powers of the Board of Appeal he said:

"It cannot be maintained here that, by virtue of the words relied on, the Board is absolved from all rules of law, as, for instance, the express provisions of the Taxing and Assessment Acts themselves. . . "

In my opinion the position is equally clear in this matter before me.

There are additionally, in my opinion, in the Act a substantial number of positive indications which point contrary to the defendant's submission. There is of course no specific direction to act in accordance with equity and good conscience, and it is crucial to the respondent to equate those terms with "substantial justice and the merits". My view that they are not in pari materia receives support from the judgment of Evatt J. (the dissenting judge) in Ex parte Bott supra at p.256 where his view was in effect that they accorded with the principles of natural justice. It can hardly be in accord with natural justice to deny an applicant an express entitlement under the Act, if he be otherwise entitled to it. Clearly ss.35 and 101 impose a liability upon the Commonwealth to pay a pension to the applicant in accordance with the rules laid down in the Schedules. Equally the applicant is entitled to receive such a pension. Moreover notwithstanding the words "without limiting the generality of the foregoing" in s.107 VG (b), I see what follows as indicating the types of circumstance in which the Tribunal is to proceed according to "substantial justice and the merits". I am far from satisfied that in making its ultimate decision on the review the Tribunal is entitled to act only in accordance with these criteria, and I am of the opinion that the words "in making a decision in a proceeding" embrace rather a decision made during the conduct of the proceedings.

My opinion that the Tribunal is required to act in accordance with law, that is within the confines of and in accordance with the Act, receives support from other provisions of the legislation. The fact that the amount of the pension to which an applicant is entitled is not at large but is to be determined by the Act receives support from ss.101 and 35 and the detailed provisions of the Schedules. Likewise the obligation of the Tribunal under s.107 VH (3) when it sets aside a decision which it is reviewing is to substitute "such decision as the Tribunal considers to be in accordance with this Act". There is no warrant here to depart from the provisions of the Act. That the Tribunal is as a matter of law obliged to act in accordance with those provisions receives further support from the provision of a right of appeal limited to an error of law (s.107 VZZH), the right to refer a question of law to this court for decision and the obligation thereafter not to "proceed in a manner, or make a decision, that is inconsistent with the opinion" of this court (s.107 VZZG (1) and (4)). I refer also to the right of the President of the Tribunal to refer a decision under review to the Administrative Appeals Tribunal (s.107 VZZB), which latter body without doubt is required to act in accordance with law. All of these provisions would be quite pointless and of no possible profit if the Tribunal was entitled to act other than in accordance with the Act.

Finally, I refer, as supporting the obligation so to act, to the requirement that in certain circumstances, namely when entitlement, assessment or permanent unemployment is under consideration, the tribunal must give reasons for its decision including any findings of fact (s.107 VK). Such a provision is obviously in aid of a possible appeal, and the giving of reasons for its decision can have no significance if the Tribunal was entitled to make its decision on some arbitrary basis.

In my opinion the undoubted conclusion to be drawn from the above is that the Tribunal has no charter to act in making its decision in accordance with "equity and good conscience" but is obliged to comply with the provisions of the legislation. It follows that the authorities to which counsel for the respondent referred have no application to the functions of the Tribunal or restrict in any way the right of appeal if an error of law be established.

Counsel's further submission was that if, contrary to his primary contention, there was a right of appeal on an error of law, no such error had been established here. He said that I was not entitled to assume, as was assumed in Sullivan v Department of Transport supra, that the silence of the Tribunal in respect of the applicant's claim to an Intermediate Rate pension indicated that it had given no consideration to a relevant matter. Rather I should assume that proper consideration had been given resulting in a rejection of the applicant's claim. He supported this submission by pointing to what he said was a crucial difference between the obligation to give reasons under the Administrative Appeals Tribunal Act and the corresponding provision in the Act. The Administrative Appeals Tribunal is obliged not only to give its reasons in writing for its decision, but those reasons must "include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based", (s.43(2) of the former Act). The corresponding provision in the Act (s.107 VK(1)) departs from s.43(2), requiring only "a statement of the reasons for the decision . . . including any findings of fact in relation to the prescribed matter". The latter provision, it was said, did not require the Tribunal to give all its findings of fact, but only those which it decided to supply. In any event the obligation to give reasons was of no great significance, but was "merely a mandate to think about what it is doing to the extent that it has to put something down in writing."

I can not accept either of these submissions.

As to counsel's last mentioned point, it is not correct to say that the obligation to give reasons is of no great significance. In my opinion such an obligation is essential if there is to be an effective appeal on an error of law. Without such a provision it would be impossible for the appellant or this court to discern whether the Tribunal erred, assuming it did err, in law or in fact. In Iveagh v Minister of Housing and Local Government (1964) 1 Q.B. 395 at 410 Lord Denning emphasised the importance of the obligation to give reasons when he said of a similar provision:

"The whole purpose of the enactment is to enable the parties and the courts to see what matters he (the Minister) has taken into consideration and what view he has reached on the points of fact and law which arise. If he does not deal with the points that arise, he fails in his duty: and the court can order him to make good the omission."

Russell L.J. made a similar comment during argument in that case at p.405 when he said:

". . . the purpose of requiring the Minister to give the reasons for his decision is to enable anyone interested to see whether there is . . . in law a fault in his process of reasoning, so that they may attack the decision."

There is a similar section to s.107 VK in the Tribunals and Inquiries Act 1958 of the United Kingdom which was considered in Re Poyser and Mills' Arbitration (1964) 2 Q.B. 467 by Megaw J. (as he then was) at p.477:

"The whole purpose of s.12 of the Tribunal and Inquiries Act 1958 was to enable persons whose property, or whose interests, were being affected by some administrative decision or some statutory arbitration to know, if the decision was against them, what the reasons for it were. Up to then people's property and other interests might be gravely affected by a decision of some official. The decision might be perfectly right, but the person against whom it was made was left with the real grievance that he was not told why the decision had been made. The purpose of s.12 was to remedy that . . . Parliament provided that reasons shall be given and in my view that must be read as meaning that proper adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."

It is pertinent to note that s.12 of the latter legislation only required reasons to be given, and not facts. Irrespective therefore of the difference between the requirements of the Act and the Administrative Appeals Tribunal Act in respect of the obligation to indicate facts, the above statements of the law are applicable to the present matter. The Tribunal was obliged in this present matter to comply with s.107 VK and provide the applicant with a statement at least of its reasons for its decision to reject his claim.

As to the second submission based on the fact that the Tribunal was required to state "any" and not "all" findings of fact, I do not see its obligation as different, to any significant extent, from that of the Administrative Appeals Tribunal. Indeed it would be surprising if it was different, in the light of the fact that the President of the Tribunal had a discretion to refer the application to the latter Tribunal. However the use of the word "any" does not entitle the Tribunal to include a statement of only some of the facts found, but requires a statement of all facts to be given. "Any" in this instance means "all, if any". I refer to Victorian Chamber of Manufacturers v The Commonwealth (1943) 67 C.L.R. 335 per Williams J. at 346:

"The authorities to which Mr. Ham referred, Liddy v Kennedy, Isle of Wight Railway Co v Tahourdin and other authorities cited in Stroud's Judicial Dictionary 2nd ed. and supplement, under the word "any", show that "any" is a word which ordinarily excludes limitation or qualification and which should be given as wide a construction as possible. 'Any goods' therefore includes all goods except where this wide construction is limited by the subject matter and context of a particular statute."

In my opinion, if the Tribunal found certain facts which denied the appellant's entitlement to a pension at the Intermediate Rate, it was obliged to state these facts. Likewise it was obliged to give its reasons for denying the appellant this entitlement. At it has failed to state any such facts or give any reasons, this court is entitled to assume, as is the appellant, that it failed to give consideration to a material matter which arose for determination. Counsel for the respondent contended that the Tribunal was justified in concluding that the appellant had the capacity to earn a living wage. That may well be so, though it appears to fly in the face of the evidence and its own specific findings, but the crucial thing from the point of view of this court is that it has not expressly said so. The proceedings therefore have miscarried, and this court should intervene as an error of law has arisen. The appropriate order is that the matter be remitted to the Tribunal for re-hearing in the light of these reasons and any further evidence which may be presented.

I allow the appeal with costs and I direct that the matter be remitted to the Tribunal to be heard and decided again in the light of my decision, with the hearing of such further evidence, if any, as may be presented to the Tribunal.