Dell, E.J. v Repatriation Commission

Repatriation - pension - "back inlury"

- whether incapacity

xisin? out of o r attrlbutable to defence service

- Fepatriation

Tribunal - matters to be curlbidered - eligible periods

- "special

service" - ambit of claim for "back in!urv"	- onus of proof.
EDWIN JOHN DELL 17 . REPATRIATION COMMISSION
No. NSW G?22 of 1983
McGreffor J.
13 .June 1985
Svdney

. ..

.. .

GENERAL

DIVISION

)

ON APPEAL FROM THE REPATRIATION RET7IEW TFIBUNAL

BFIWEEN :

El2TdIN ,JOHN DELL

Rppl

icant

F M ) :

FEPATFIATION COMMISSION

Respondent

MINUTES OF nmm

.Judue makinq order: McGreqor ,J.

Date order made

13 June 1995

made

Where

: Sydney

THE COURT ORDERS THAT:

1. The appeal is allowed.

The decision of

the Repatriation

Feview Tribunal

made on 22 Auuust 1983 is set aslde.

The

matter

remltted to the

Admlnistrative

Appeals Tribunal for determination in accordance with law elther with or wlthout the rakin? of further evidence.

4. The respondent is to pap the costs of this appeal.

&	N	Settlement and entry of orders 1s dealt with In Order	36 of
the Federal Court Pules.

IN THE FEOERAL COTJPT OF >-IJSTRALIF-

)

NEW SO1.TE-l HAALES DISTRICT REGISTRY )

No. NSW G322 of 1983

DIVISION

GENERAL

ON APPEAL FROM THE REPATRIATION REVIEW

TFIBTJNAL

BETWEEN

EDWIN JOHN DELL

Applicant

AND :

REPATRILTION COMMISSION

Respondent

McGrecror J.

D&:	13 June 1985

REASONS FOR ,JUDGMENT

DWIN JOHN DELL (applicant) has appealed. auamst a

declsion of the

REF'ATRIATIOW REVIEW TRIBUNAL (the Tribunal) made

on 22

Auuust 1983 and notified to the applicant

on 15 September

1983

whereby

the

Tribunal

affirmed

the

decislon

the

REPATRIATION

COMMISSION

(respondent)

of 18 November

1980.

rejectinq a

claim by the appllcant

f o r a

pension claimed bp him

pursuant

the

Repatriation

Act

1920

and

the

Repatrlation

(Spec131 Overseas Service) Act 1962.

Sections

the

Repatrlatlon

Act whlch have

been

referred to are -

" 4 7 .

(l).

. . .

( 2 )

The Commission or a

Board shall n-rant a

claim

application, and the Commission shall

allow

an appeal, unless it

1 s

satisfied. beyond

reasonable doubt, that

here

are

insufficient

urounds for uranting the clalm

application or

allowing the appeal,	as the case may be.
....

107J. In this Division

. . . .

'defence

s rvice'

means

cmtinuous full-time

service as a member of the Defence Fnrce on

after 7 December 1972. but does not u-clude any

period of peacekeepinu service:

. . . .

107M. (1) Upon the incapaclty or death nf a

member

whom

this

Division

applies

whose

incapacity or death

has

arisen

out

of, nr is

attributable to, his

defence

5erv1ce

or his

peacekeepina service, as the case may be, the Commonwealth is, subject. t n thls Act, liable to pay to the member, to the dependants of the member nr

to both, as the case may

be, pensions in accordance

with Division	1. as applied by sectlon 107H.
. . . .

( 3 ) Where -

(a) the oriuin or cause of the incapacity

or death

of a

member of the Forces who has served

least 6 months effective full-time service as

a member of the Defence Force existed before

he commenced his defence servlce:

and

(b) the Commlsslon

or a Board is of the oplnion

that the incapacity from which

the member is

sufferina or from which he dled has.

nc had,

been contributed to in a

material dearee. nr

has, or had.

been

aggravated,

the

conditions of hls defence servlce,

the Commonwealth is, sublect to this Act. liable to pap to the member, to his dependants or to both, as

the

case

may

be.

pensions

accordance

with

Division 1. as applled by section 107H.

....

107VC. (1) Where the Commission

has made a

decision refusinu a claim by

a person for a pension

(other than a service pension)

or other benefit

under this Act arisinu out of the incapacity

death of a member of the Forces on the ground that

the

member

not

sufferinu

from

any

incapacity;

the incapacity or death of the member has not

resulted from any occurrence that happened

durinu the perlod of his war service, or from

his	employment in connection with naval or

military preparations or operations,

did

not arise out of or is not attributable	to his
war service, as the case may be; or

the

incapacity

from

which

the

member

suffering or from which

he has died has not

been contributed to in anv material deuree, or

has not been agqravated, by the conditions of

his war service,

that person may. on or after 1 July 1979, make

application to the Tribunal for	a review of the
decision of the Commission.
. . . .

107VH. (1) In a proceedin? on

a reTriew, the

Tribunal shall have reuard to the evidence that was before the Commission or a Board when the rleclsion

the subiect of the review was made and

any

€urther

evidence

before

the

Trlbunal

the

proceedlng that was not before the Commisslon or

the Board but would have been relevant to the

makinq of

a decision in the proceeding before the

Commission or the Board.

‘ 2 )

On the completion of its consideration In

a proceedinu on a review -

(a) where the decision the subject

of the renew

was a decision refusina a claim or application

for pension - the Tribunal shall set aside the

decision

unless

it is

atisfied.

bevond

reasonable doubt. that there were insufficlent

urounds for granting the	claim or application;
or

(b) in any other case

the Tribunal

5hall 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

had

conducted the proceeding in which the decision

was made.

( 3 ) ....

( 4 ) Where the Tribunal does not set aside

decision the subject	of a review. it shall affirm
that decision.
....

107VZZH. (1) An

applicant

in a proceeding

before the Tribunal or the Commission may appeal to

the Federal Court

Australia. on a question nf

law, from any decision of the Tribunal in that

proceeding.

( Z ) . . . .

(3) The

Federal

Court

of Australia has

jurisdlction

hear

determine

appeals

instituted

that

Court

accordance

wlth

sub-section (1).

The Federal Court of Australia shall hear and determlne the appeal and may make such order as

( 4 )

it thinks appropriate by reason of its declsion.

( 5 )

Without

limitinu

implication

the

qenerality of sub-section

( 4 ) , the orders that may

be made by the Federal Court of Australia on

appeal include an order affirming or settlng aside

the decision of the Trlbunal and

an orderremittmu

the case to be heard and decided aqain, either with

or without the hearinq of further evidence,	by the
Tribunal in accordance wlth the rllrectlons	of the

Court.

Sections of the Repatriation (Special Overseas S e r v ~ c e l

Act which have been referred

to lnclude -

"s.3(1)

In this Act, unless the contrary

intentlon appears -

. . . .

'special service', in relation to

a person. means

servlce of the person

as a

member of

the Naval.

Military or Air Forces durinu a period comprlsln?

(a) a period when

he is outside Australia and he

or his unit is allotted for special duty in	a
special area;

....

6.(1) Upon the incapacity or death of a member

of the

Forces

whose

incapacity

or death

has

resulted from an occurrence that happened durins a period of special service of the member (includlncr

the contracting of

a disease durlna such a period).

the Commonwealth is, subject to this Act. liable

pay to the member, to the dependants of the member

or to both, as

the

case

may

be, pensions

accordance with Division

l of Part

I11 of the

Repatriation Act as

applied by the next succeedinq

section.

. -

( 2 )

( 3 )

(4) . . . .

IS) Where

the

oriuin

the

cause

of an

incapacity or of the death of a member of the

Forces existed before the commencement of a period

of special

service

the

member

and, In

the

opinion of the Commission

or a Board -

(a) the

incapacity

from

which

the

member

sufferinu was contributed to in any materlal

degree, or has been

aggravated.

the

conditions

that

special

service

nr the

member's death has been contributed to in any

material deuree by those conditions: and

lb) neither

the

incapacity

or death.

nor

the

origin of

the

cause

the

incapaclty

death. was due to the member's serious default

or wilful act,

the incapacity

death shall be deemed

to have

resulted from

occurrence that happened during

that period of special service."

The applicant was born on 18 May 1940.

He enlisted In

the Armv on

7 Clctober 1964.

His posting was mostly

as a cook.

From approximately 16 April

1968

to 2 3 April 1969

he served in

Vietnam and for

a period in 1970 in Papua New Guinea. On

November

1979 he received an honourable discharue, medically

unfit.

It is not necessary to refer

to all the details of the

applicant's service record. In a Claim for Medical Treatment and

Pension dated 18 November 1975. the answer to the question, "What

is/are the &sabillty(ies) now claimed", was "Back Injury".

In an

accompanying form, "Statement in Support of

a Claim for Medical

Treatment and Pension".

a question, "What is the Disability Now

Claimed

Related to Service". was answered, "Acute Lumbar

Strain". Further questions and answers were

as follows -

"Q. What

accidents,

injuries or illnesses suffered

durinu

service do YOU conslder

have

anv

relationship

claim?

thi

a tach

documentary evidence If available).

A. Continuous

liftinq heavy, sllppinq

nn wet

floors etc.

Documentary evidence in medlcal

records (unit and central me?. records office

Melb) .

. . . .

0. Why do you consider

the

conditions

your

service caused, aqqravated or

contributed to

the

disability

now

claimed?

(supportinu

documentary evidence may be attached)

A . Yes - med

evidence

in medical

records.

Continuous treatment since 6.10.70

- followinu

liftinu 56 lb. suqar. Consider that duties

etc. as above caused the disability."

involved as a cook - continuous heavy lifting.

On 22 Auqust 1983. in a hearing before the Tribunal (reviewinq

declsion of the Repatriation Commission of

18 November 1980) he

qave evidence includinu evldence reqardinu an incident when

fell on "my backside, yes, on

my back". Thls

incident is also

mentioned

medical

records.

occurred

apparently

on 27

November 1968 in Vietnam when he fell off the back

of Lambretta

taxi and "onto sacro-coccygeal reglon". There was tendered at

that hearing letters dated 20 July 1983 and 18 August 1983

of a

Doctor Doolan which referred. inter

alia, to the applicant having

suffered durina the perlod since May 1982 "chronic lumbar back

pain" and "a recrudescence of his lumbar back pain" respectively.

As counsel pointed out, throughout the Service medical records

there

are

other

eferences

and

complalnts

or records

suuuesting

back

troubles

injuries

experlenced

the

applicant. I do not

find

It necessary

refer

to them

specifically.

See

entries

10.4.1969, 6.10.1970,

23.10.1970,11.2.1971 and 25.2.1971. In its Findinus and Reasons

the Tribunal referred to the matter before it thus

"This is an application by John Edwin Dell for a

review of the decision dated

18 November 1980 by

the Repatriation Commlssion that the incapacity

resultinq from

his disabilltv

of lumbar spondylosis

was not related to his eligible

service."

(Underlining is mine)

The Tribunal referred to the history of the

clam and

the "entries which could be considered

most_

relevant to

the

dlsabilitv".

After eferring

records

and

evidence.

the

Tribunal made the followinq findinqs

"1. Mr. Dell

now

suffering

from

lumbar

spondylosis

His

lumbar spondylosis was not dlaunosed by

x-ray until about

1980.

althouah he had had

many x-rays durinq the previous years

3. His lumbar spondylosis, which

1 s minimal, has

arisen

for

the asons

uiven

the

departmental medical officer."

The Tribunal continued

"Before

completinq

these

reasons,

however,

the

Tribunal feels it

should make some further comment

on the incapacity Mr Dell suffers from because of

his back, and in this respect, makes the following

further findinqs:

Mr Dell has incapacity

in his back which may

not be related to

his lumbar spondylosis

2.	This incapacity first occurred in 1970 at	his
home
3 .	It occurred again in 1971

4 . Both these episodes occurred outside eliqible

service and are unrelated to

his

eliqible

service

It has reoccurred since then on

a number of

occasions

6 .

It has

not

been

aggravated

materially

contributed to durlnq hls eliqible service 7. This incapacity probably

has some orqanlc base

which is added

a considerable functional

element

This incapacity is not related to

Mr Dell's

service

throuuh

any

the

associations

prescribed in the Act.

Havinq regard to the findlngs made in respect of

the disability under review of Lumbar Spondylosis,

the Tribunal is satisfied beyond reasonable doubt

that it arose for reasons unrelated to Mr. Dell's eliglble service, and affirms the decision of the

Commission.

I '

In his Notice of Appeal dated

13 October 1983, the applicant

listed the following questions of law	as raised on the appeal.
viz. -

" ( A )

Whether in reaching

its decision the Tribunal

misdirected itself or erred

in law:-

l i ) in

failinu to consider whether

was

satisfied beyond reasonable doubt that

there

were

insufficient

urounds

for

qranting	the	applicant’s	claim	for	a
pension.

(ii) in failing to consider whether it was satisfied beyond reasonable doubt that

..-

the

applicant

was

not

entitled

to a

pension

for

i capacity

from

back

conditions other than Lumbar Spondylosis.

(iii) in failing to consider whether on all the evidence there was a real and distinct

possibility that the

applicant’s relevant

back condition:

(a) resulted from an

occurrence

that

happened or from a

disease

contracted durlnu

period nf

special service within the meanina

of s.6( 1) of

the

Repatriatlon

(Special Overseas Service) Act	1962:
or

(b) had its origln before such servlce

and was contributed to in

a material

deqree or was

aqgravated

the

conditions of such service,

was attributable to

his

defence

service

withln

the

meaninu of S. 107M nf	the
Repatnation Act 1920. or

(d) had its origin

or cause before

the

applicant

commenced

such

defence

service and was contributed tn In B

material deuree

or agcrravated by the

conditions of such service.

(iv) in failinu to consider or give welght to the opinions of the departmental medlcal

officer

that

the

causes

Lumbar

Spondylosis include major sinale trauma

or multiple minor traumata. and strains,

that

and

the

applicant’s

Lumbar

Spondylosis

was

attrlbutable

many

years of minor traumata and strains.

(v) in failinu to conslder or qive weight to the evidence that the applicant suffered

many

incidents

trauma

straln

during

the

periods

his

eliuible

service and

that

in the conditions of

10.

service

other

such

incidents

were

inherently likely to have occurred.

(vi)

f indinu

that

the

applicant

' S

incapacity

not

Lumbar

Spondylosis

was

not

his

service throuuh any

the associations

prescribed in the Act.

(vii)in

finding

that

applicant

' S

disability from Lumbar Spondylosis arose

for reasons unrelated to

his eliuible

service.

Other questions there listed were not the subiect of argument in

this appeal.

The Orders sought by the applicant were that the

decision appealed be set aside, that it be ordered that the

Commonwealth is liable to pay

pension in accordance with

Dlvision I of Part

111 of the

Repatriatlon

Act

1920:

alternatively, that the matter be remitted to be heard and

decided again. It is agreed that pursuant to the Repatriation

Leqlslation Amendment Act 1984 the appropriate body to

whom lt

mlcrht be remitted would be the

Admmistrative Appeals Tribunal.

Counsel for the applicant submitted that the materlal in

the relevant documents showed a

very real possibility

that the

applicant's back condition was linked

his service, wlth a

continuous record

of back strains and complaints

of an lncreaslnq

nature

durinu

the

course

of his

service.

submitted

Tribunal could have been satisfied bevond reasonable doubt that

there

were

insufficient

?rounds

for allowinu

the

claim.

referred to the

two periods when the applicant became eligible

for benefit

or to make a clam under the Repatriatlon Act, viz.

firstly, between 16 April

1968 and 23 April

l969 when he served

11.

in Vietnam.

pursuant

the

provisions

the

Repatriatlon

(Special

Overseas

Service)

Act

1962

5 . 3 .

defining

"special

service", and 5 . 6 ;

secondly, the period between 7 December 1972

to the end of

his service, relying upon the Repatriation Act

s.l07M, first inserted into the Act bp the Repatriation

Act

(No.3) 1973 (see definltion

of "defence service"). He referred to

the departmental officer's report whlch

said the Tribunal

proceeded to adopt. He referred to the "flndincrs" numbered

1 to

3 above m t h e Tribunal's Flndings and Reasons.

Of those.

said, No. 1 was accepted though it was also submitted that there

were possible diagnoses

of the back injury other than lumbar

spondylosis. It was impllcit in his argument that the other two findings were challenged. He submitted that upon an examination of the Findinus and Reasons of the Tribunal, it appeared to have

made

findings

fact

that there

were a number

back

incapacities other than lumbar spondylosls but thought

it was not

required

consider

them:

it was

incorrectly llmitmg the

appeal to lumbar spondylosis and not considering the wlder claim

of back injury because,

it seemed, of

the way the medical

officer had handled the matter.

He referred to the Repatriation

(Special Overseas Service)

Act 1962:

s . 6 was concerned wlth

incapacity resulting

from an occurrence that happened durinu

period of special service: then

s . 6 ( 5 ) provi.ded for an extended

basis of entitlement by deemlnq an incapacity to have resulted

from an occurrence that happened durlng

period of speclal

service where that incapacity

was contributed to or aguravated bp

conditions of

the"specia1 service". There was no issue that the

12.

applicant's service was within the definition of "speclal service". He referred to Repatriation Act 1920 s.l07M(l) and (2)

and

S. 107J

which

defined

"defence

service"

"continuous

full-time servlce as

a member of the Defence Force on

or after 7

December 1972.

. .

He referred to O'Brien v. Repatriation

Commission (1984) 1 F.C.R.

472 and the decision in that case on

appeal sub nom. Repatriation Commission v.

O'Brien (Hiqh Court;

unreported: 27 February

1985).

He submitted that the Tribunal

had erred in

law by

failing to apply the ultimate onus provision

of s.lO7VH of the Repatriation

Act;

it was apparent from the

conclusions of the Tribunal that it had looked to decide whether

the material supported a positive conclusion of causal link

instead of considering whether they could conclude

(i.e. bevond

reasonable doubt) from that material that there was no causal

llnk: this was

an error of law.

He referred to Repatriatlon

Commission v. Law (1981) 147 C.L.R.

6 3 5 .

He submitted the third

uround of error which the Tribunal made was in not considerlng each of the avallable statutory bases of entitlement numberlnq

four in

all, i.e.. as he put

(acceptins as apparently the

Tribunal did, that there	was an Incapacity m	the appllcant's
back) -

(a)

Whether the incapacity had its orluin before

the

claim

Vietnam

service

and

was

aqaravated by that service:

(b) whether

the

incapacity

resulted

from

occurrence belng a fall from a Lambretta taxi

durinq that servlce;

(c)	whether the incapacity arose out of or was

attributable

incidents

back

strain

during his

1972-1979 service;

(d)	whether the incapacity had its origin prior to

1972 but was aggravated or contributed to by

strain during that service (i.e. durinq the

service

1972 to

1 9 7 9 ) .

Later he

expanded these paragraphs to a more explicit statement

of issues.

He submitted that an examination of the third finding

made by the Tribunal demonstrated an error in that it indicated that the Tribunal was makinu only a finding as to "arisincr" and

not as to

"aggravation" or material contribution. Lackinu such

finding the conclusion that this Court should reach is that the there had been a clear error of law. He referred to Sullivan v.

Department of Transport ( 1 9 7 8 ) 20 ALR 3 2 3 , in particular at

p.353

per Fisher J.

He submitted as a fourth around that the Tribunal

erred in

law in

its adoption of the opinion of the Government

Medical Officer (as demonstrated by the third findinq referred to

above) where that opinlon was "flawed loulcally on its

face". As

understand him

he then argued that the medical officer's

opinion which was referred to in the Findinqs and Reasons of the

Tribunal failed to take account

of what have been described

"multiple minor traumata" yet there was abundant evidence of

incidents of that kind durinu the relevant periods of service

leadinu to the conclusion that least it could not be said that

those incidents did not materially contribute to the incapacity;

yet the medical officer stated the reverse concluslon. which was

adopted by the Tribunal. He submitted that the medical officer

and the Tribunal failed to consider the evidence as to many

14.

incident's

trauma

during

his

war- service:

that

failure

constituted an error of law.

(I interpolate that

I find it

difficult to accept that there was such

a fallure when

I see what

is quoted of the medical officer's report in the Findings and

Reasons). As a fifth argument he submitted that the Tribunal's decision was unsupportable because it had reached a concluslon that no reasonable Tribunal could reach properly exercisinq its statutory function.

Counsel

submitted

that

upon

examination

the

Findings and Reasons of the Tribunal what was determined was that there was no connecting link, i.e. no causation. and not that

there was no incapacity. Further.

submltted the ultimate

conclusion of

the Tribunal demonstrated that it had limlted the

disability under review to lumbar spondylosis, i.e. interpreting the claim to be one for lumbar spondylosls, thus puttinq R

limitation

on the claim that

time appeared from the

applicant's case and was not part of his claim: yet

it was

decision on that claim which was ultimately before the Trlbunal.

Counsel referred in detall to the evidence, particularly to

entries on the applicant's ervice record including, e.g.

entries on 30 September 1976, 24 August 1977, 7 June 1974: these

showed that the applicant had no back problem prior to qoing to

Vietnam; that there was no indlcation of any back problem at all

until the entry of 28 November 1968 recording

his fall from the

Lambretta taxi. In summary,

he sald. up to

7 December 1972,

15.

beina

the

start

of the

second

period

eligibility.

the

applicant had had no report of back problems prior to service in

Vletnam where he had the Lambretta fall.

He referred to two entries of

6 and 10 October 1970

(diagnosis; 23 October 1970, Acute Back Strain) and 11 February

1971 (diagnosis:- Lumbar Disc Lesion). Referring to the entry

23.10.70 and the incident of lifting

a heavy piece

of timber. he

said this incident occurred possibly both outside his service and

outside his ellgible service: but it became a relevant part	of
his back history.

After the start, viz. on 7 December 1972,

of the second

p e r m d of eligibility, and on 29 August 1973 there was reference

to "acute back strain.? L/S disc lesion". A further Incident to

which he referred was recorded on 24 September 1974 as "Palnful

back after lifting yesterday". On 21 October 1974 there was a

diagnosis of acute back strain with disc protruslon symptoms.

further incident, i.e. the third withln the

(second) period of

eligibility, commenced in June 1975." Jarred back 3 days

ago" was

noted on

30 June 1975.

He referred to the x-ray report

of 15

July 1975 which, he said, appeared to have been overlooked

by the

Tribunal.

submltted

that

since

that ime

there

was

contlnuous record

poor recovery, or

of recurrence untll at

least February 1976 and a record	of developina psychological
problems.

16.

The

Tribunal had to consider

e.g. whether it could

exclude

beyond

reasonable

doubt

that

these

Incidents

were

aggravating some back condition which itself may not have been

related to service:

were incidents in the eliqible periods

during which disability arose. He referred to other entries in

the applicant’s service record.

After the main hearina was concluded

sought further

assistance from counsel.

Mr. Matthew Smith for the appllcant

submitted that	it had not been disputed that the applicant had
suffered from	a back disability with posslble psychologlcal

elements

resulting

some

incapacity.

Separatinq

out

the

various bases of entitlement to be found In the legislative

provisions referred to,	he	said that the issues for the Tribunal
had been -

(a)

Was the applicant’s condition not the result

of	an occurrence that happened durinq his

service in Period A.

Was the orlgin of the cause of the condition not in existence before Period A.

If	such an origin was not excluded. was the

condition not contributed to in any material degree, nor aggravated by, the conditions of his sernce in Period A.

Was the cmdition

one which did not arise out

of nor was attributable

his service in

Period B.

Was neither the oriuin nor the cause of the

condition in existence before Period

If such an oriqin or cause was not excluded.

was the condition not contributed to in a

material

deqree.

nor

aqqravated

by, the

conditions of his service in Period

argued

that,

having

reqard

to his

earlier

submissions, the Tribunal had failed to consider the matter as

those issues required. He contended that unless the Tribunal

could answer in the affirmative to each of the proposltions set

out (a) to (f) above, it ought to have set aside the decision of

the respondent and granted a pension to the applicant.

Counsel f o r the

respondent, Mr. Steele, by way of

concession, said that it would be open to this Court to hold that

the Tribunal addressed itself only to

the question of lumbar

spondylosis and not to the broader claim

of "back in!ury" as had

been put forward by the applicant; that on the face

of it there

appeared

an error.

He said

there

was

a potential

explanation for that,

viz. the departmental medical officer. upon

whom the Tribunal relied, when asked for his diaqnosis. qave it

as lumbar spondylosis. That could lead to the Inference that the

only disability for which the applicant claimed

or from which he

suffered was lumbar

spondylosis:

therefore,

once

that

was

dismissed, in effect,

that was an end to the

matter.

However.

opposition

the

preferred

result

put

forward by counsel for the applicant.

he submitted that this

Court should not make

an order that the aoplicant should be

admitted to pension; this could

be done only if the Court came

to the conclusion that the only possible decision the Tribunal

could have reached

on the evidence before

it was to want a

pension. He referred to authorities where this Court had refused

18.

to grant a pens

ion e.g.

se v. Repatriation Commission (1982) 44

ALR 504; Repatriation Commission v. Bishop

(1983) 48

ALR 461

(Bishop); Repatriation Commission

v. Compton (1984) 5 3 ALR 115;

Repatriation

Commission

v. Walker (1984) 1 F.C.R.

279.

submitted that before there could be

a urant of a pension by this

Court in this case it would be necessary to examlne the evidence.

in effect, more carefully than had been

done; and for this Court

to consider the totality of that evidence.

particular. he

referred to the records which showed that there was

a history of

complaints and acknowledged functional or psychiatric components.

He said It

would be open to the Tribunal to say that the (basis

for) complaints

had

never

been

established;

thus

the

minor

trauma which had been

so described might well be looked at with

degree of

scepticism.

his submission the Tribunal may well

have discounted to some extent the complalnts

of pain which were

made by the applicant without having said

so.

He did not dispute

that paras. (a) to (f) set out above were, as I understood him,

objectively speaking,

a correct statement; but submitted that

any further evidence called miuht well throw	a different light on
the whole matter.

Counsel for

the respondent drew my attention to the

existence of amendments in 1985 to the Repatriation	Act. He qald
they did not affect the issues here.

It is

not necessary to refer

to the evldence to which

counsel drew attention.

I am satisfied that the Tribunal did

appear to concentrate on lumbar spondylosis to the exclusion of	a
more general consideration of "back injury" and may not fully

have considered the application of

5.6

the

Repatriation

(Special Overseas Service) Act and s.107M

of the Repatriation Act

in their application to back injury

or lumbar spondylosis.

I have

read the material in the service record of the

applicant.

It is not possible for

me, particularly as I have not

seen or heard the applicant, to evaluate the weiuht

to be given

to competlnq evidence as to his condition so as to be

able to

assert with confidence that, properly considered, the only result

of this application could be that the applicant be admitted

pension.

to order would be "usurpinq the function of the

[Administrative

Appeals1

Tribunal"

(Bishop

p.469).

Accordingly, I

do not adopt that

- which from the applicant's

point of view is the preferred - course.

I wlll. however, remit

the

matter

the

Admlnistrative

Appeals

Tribunal

considered by it according to law.

I have not overlooked the

wisdom of including in my order that there should be no further

medical evidence.

I have reached the view

that this would be

quite inappropriate. Though It would be open to me t o do s o . I will not give specific directions to the Adminlstratlve Appeals Tribunal having regard to the stronu likelihood if I correctly

gauge the attitude of the parties, that there

will

be further

evidence upon medical issues: but

I observe that paras.(a) to

(f) set out above do provide a useful approach whlch may assist

the Administrative Appeals Trlbunal if they did come to the

conclusion that the applicant was.

as he claimed, sufferinu from

some

incapacitating

condition

with nr without

possible

psychological elements includinq some back condition.

-. -

The Orders I make are as follows -

1. The appeal is allowed.

2 .

The

decision of

the Repatriation Review Tribunal

given on 22 August 1983 1s set aside.

3 . The matter is remitted to the Administratlve Appeals

Tribunal

for determination in accordance with law

elther

with or without

the

hearlng

of further

evidence.

4. The respondent IS to pay the costs of this appeal

I c.b*,!y

that this and the flinetcej.1 (19)

pre:cdrng pages are a true copy of the

Rcasonr for Judgment herein d hLc Honw?

[1985] FCA 264

13 Jun 1985