Lowerson v Repatriation Commission
[1994] FCA 417
•30 JUNE 1994
LORELLE LILLIAN LOWERSON v REPATRIATION COMMISSION
Nos. NG936 of 1992 and NG258 of 1993
FED No. 417/94
Number of pages - 22
Social Welfare And Services
(1994) 19 AAR 488
(1994) 33 ALD 385
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NEAVES(1), EINFELD AND BEAZLEY(2) JJ
CATCHWORDS
Social Welfare And Services - Veterans' affairs - Appeal from Administrative Appeals Tribunal - Application for pension upon death of veteran - Accepted that veteran had relevant operational service - Accepted that veteran suffering from alcoholism and a heart condition that were war-caused - Death resulting from injuries received when vehicle driven by veteran overturned - Whether material before Tribunal raised reasonable hypotheses that death caused by alcoholism or the heart condition - Whether it was open to Tribunal to be satisfied beyond reasonable doubt that factual foundation for hypotheses did not exist - Whether Court entitled to substitute its decision for that reached by Tribunal.
Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)
Veterans' Entitlements Act, 1986 (Cth), s.120
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Webb v Repatriation Commission (1988) 19 FCR 139
Gilbert v Repatriation Commission (1989) 10 AAR 73
Lahrs v Eichsteadt (1961) Qd R 457
HEARING
SYDNEY, 25 May 1993
#DATE 30:6:1994
Counsel and solicitors for the Mr M Maurice QC with Mr appellant
C Vindin instructed by Legal Aid Commission of NSW
Counsel and solicitors for Mr A. Robertson
the respondent instructed by the
Australian Government Solicitor
ORDER
The Court:
1. orders that the decision of the Administrative Appeals Tribunal
on 30 November 1992 be set aside
2. declares that the death of Robert Francis Lowerson was
war-caused within the meaning of s. 120(1) of the Veterans' Entitlements Act 1986
3. orders the parties to bring in short minutes of orders within
fourteen days concerning the amount of the pension to be paid and the date from which it is to be paid
4. orders, alternatively to 3 if there is no agreement thereon, that
the short minutes provide for the claim to be remitted to the Tribunal for the determination of those matters
5. orders the respondent to pay the applicant's costs
The Court orders that:
1. the application be dismissed
2. there be no order as to costs
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
JUDGE1
NEAVES J I have had the advantage of reading the judgment to be delivered by the other members of the Court. In relation to matter numbered NG 936 of 1992, I agree that the approach which the Administrative Appeals Tribunal ("the Tribunal") took to the issue that arose for its determination was not consistent with the requirements of s.120 of the Veterans' Entitlements Act 1986 (Cth) ("the Act") as explained by the High Court of Australia in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. The decision of the Tribunal that "the death of Robert Francis Lowerson was not war-caused" must, therefore, be set aside.
I also agree that it was not open to the Tribunal, after consideration of the whole of the material before it, to form the opinion that that material did not raise hypotheses that were reasonable in the sense explained in East v Repatriation Commission (1987) 16 FCR 517 at p.532 (see the Act, s.120(3)) connecting the death of Robert Francis Lowerson with the circumstances of the particular war service rendered by him. Nor, in my opinion, was it open to the Tribunal, on the material before it, to be satisfied beyond reasonable doubt that the factual foundation upon which each of those hypotheses was founded did not exist (s.120(1)). I, therefore, join with the other members of the Court in thinking that this is one of those, albeit rare, cases in which it is not necessary for the matter to be remitted to the Tribunal to be heard and determined again. The Court may, I think, properly substitute for the decision of the Tribunal a decision that the death of Robert Francis Lowerson was war-caused within the meaning of s.120(1) of the Act. I would, however, remit the matter to the Tribunal for the sole purpose of it determining, in the absence of agreement between the parties, the date from which the applicant is entitled to a pension under s.13 of the Act and the amount of pension properly payable. The respondent should pay the applicant's costs of the application.
The application numbered NG 258 of 1993 for an extension of the time within which to file and serve a notice of appeal from the judgment of a single Judge of this Court (Morling J) given on 29 August 1989 in proceeding numbered NG 1405 of 1958 (reported (1989) 22 FCR 430) should be dismissed with no order as to costs.
JUDGE2
Introduction
EINFELD AND BEAZLEY JJ Lorelle Lillian Lowerson (the applicant) is the widow of Robert Francis Lowerson, a deceased veteran who satisfies the requirements of operational service as defined in section 6(1)(b) and (d) of the Veterans' Entitlements Act 1986 (the Act). Mrs Lowerson claims that her late husband's death a few days after he crashed his motor vehicle on 13 September 1969 was war-caused within the meaning of subsections (1) and (3) of section 120 of the Act so as to entitle her to a pension under section 13(1) of the Act.
The applicant advances two hypotheses as to the cause of the accident and thus of her husband's death. The first is that he was an alcoholic and was drunk at the time of the accident (the alcohol hypothesis). The second is that he suffered from mitral stenosis as a result of rheumatic fever with endocarditis (the heart condition) and that the mitral stenosis caused the veteran to fibrillate and lose control of the car, thus causing the accident that led to his death (the fibrillation hypothesis). The applicant's case is that both the alcoholism and the heart condition of her husband were war-caused, assertions that have until recently been strenuously opposed by the Repatriation Commission (the Commission).
The applicant has pursued her claim over a long and tortuous route. Initially rejected by a Repatriation Board on 30 June 1976 under the predecessor to the Act, she was successful on appeal on 20 August 1986 before the Veterans' Review Board and again on appeal to a single member of the Administrative Appeals Tribunal (the first Tribunal) on 9 November 1988. However, the first Tribunal's decision was overturned on 29 August 1989 by Morling J in this Court who held, at (1989) 22 FCR 430, that it had misapplied section 120(3) of the Act and remitted the matter to the Tribunal to be determined in accordance with his reasons. The claim was then reheard de novo by the Tribunal (the second Tribunal), which unanimously rejected it on 30 November 1992.
The applicant has now appealed this decision of the Tribunal and seeks an extension of time to file and serve a notice of appeal from the decision of Morling J. The applicant submitted that, if we are minded to overturn the decision of the second Tribunal, this is an appropriate case for the Court itself to make an order granting a pension to the applicant. If not, the applicant submitted, we should then go on to consider the application for an extension of time to appeal from Morling J.
There have been three relevant occurrences since the decision of Morling J. First, the High Court has handed down its decision in Bushell v Repatriation Commission (1992) 175 CLR 408 containing an authoritative interpretation of subsections (1) and (3) of section 120 of the Act. The High Court has reaffirmed and further explained Bushell in Byrnes v Repatriation Commission (1993) 177 CLR 564. Second, the Commission conceded, on the morning of the rehearing before the second Tribunal, that the veteran was an alcoholic and that his alcoholism was war- caused. Third, the Commission now also concedes that the veteran's heart condition was war-caused. However, it disputes that either of these war-caused conditions caused the death of the veteran.
Statutory scheme
6. Subsections (1) and (3) of section 120 relevantly provide:
(1) Where a claim under Part II for a pension in respect of...the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that...the death of the veteran was war-caused...unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(2) .....
(3) In applying subsection (1)...in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
.....
(c) that the death was war-caused... if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the...death with the circumstances of the particular service rendered by the person.
The second Tribunal found that the material before it did not raise a reasonable hypothesis connecting the death of the veteran to his war service and concluded that
..... (i)n such a case section 120(3) of the Act directs that the Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the veteran was war caused.
The applicant argued that the second Tribunal erred in law in not drawing the inferences necessary to support the hypotheses advanced. It was submitted that the Tribunal's failure to do so was perverse; that the question whether a set of primary facts is capable of supporting an inference is a question of law which in this case was decided wrongly in relation to both hypotheses; and that the Tribunal made its determination on the basis of non-existent evidence.
The facts
9. The veteran's relevant operational service was in the Australian Army between 22 July 1940 and 12 June 1944 including a period in Darwin between February 1942 and January 1943. At the time of his death he had been separated from the applicant for ten months and was living with a workmate, Mr Watts, at Dulwich Hill. The late Mr Lowerson worked for Australia Post in the nearby suburb of Redfern as a Mail Exchange Officer. He was a member of two licensed clubs.
The accident which fatally injured the veteran occurred at about 2.20 am on 13 September 1969 (a Saturday) when his car, of which he was the driver and sole occupant, hit a median strip on a long sweeping left hand curve of the four lane Hume Highway at Yagoona. This site is probably 20 kilometres from his place of work and well past his home. The vehicle overturned and the veteran was thrown out onto the roadway. He was covered with a blanket by a bystander, and shortly afterwards an ambulance arrived and took him to Bankstown Hospital where he was found to have a fractured skull and placed in intensive care. The hospital records describe him as "unconscious deeply" with abnormal breathing and head and chest injuries. He never regained consciousness and, according to a Coroner's finding at an inquest on 5 February 1970, died on 17 September 1969
..... from the effects of injuries viz. cerebral damage and a fractured skull .....
Bankstown Hospital diagnosed the principal cause of death as cerebral contusion secondary to head injury. No evidence of alcohol consumption was recorded. Nor has evidence ever surfaced of the veteran's activities between the time of the accident and 6 pm on the previous night when Mr Watts saw him leave work at the Redfern Mail Exchange. It was Mr Watts' opinion that Mr Lowerson "probably fell asleep at the wheel". He guessed from his experience of the deceased's driving that he was probably travelling at about 50 mph.
There was only one witness to the accident, a taxi driver, Jose Coelho, who was travelling in the opposite direction. Mr Coelho's statement, made at Bankstown police station on the day of the accident, contained the following account of the accident:
I saw the Volkswagen hit the western end of the median strip with the front of the car. All of the car went up in the air, when the car was up in the air, I saw the body of a person fly from the car and fall to the ground onto the roadway on the southern side of the Highway, the car then turned over and landed on its bonnet and then rolled over onto its offside and became stationary.
He said that the vehicle was travelling at a "high speed", a "speed greater than 50 mph", because "a car travelling at a normal speed would not have bounced into the air or rolled over as this Volkswagen did". Mr Coelho stopped his taxi, radioed the police and then went on to alert oncoming traffic. Mr Coelho has not given oral evidence in any proceedings since the accident.
Constable Frank Byers of the Bankstown Police arrived at the scene at 2.40 am and saw the veteran unconscious on the road. The constable described the left hand curve where the accident occurred as continuous for almost 450 metres. He stated that he was familiar with this particular stretch of road and had driven over it in different types of vehicles. His experience was that when a vehicle was driven at speed along that particular curve
...there is a tendency for centrifugal force to be exerted upon the vehicle and the vehicle is forced towards the centre median strip...
In his opinion that is what had happened to the veteran's vehicle.
The applicant's evidence was that her husband regularly drove while drunk so that the family always tried to avoid driving with him. She said that it was "very unusual for him not to drink on a Friday night". The veteran's son and daughter spoke of his mixed drinking and driving habits especially on pay and Friday nights. In reference to visits that her father had made to the matrimonial home after his separation from the applicant in 1968, the daughter said that they were usually on pay nights and the veteran was "...generally under the influence of alcohol". She referred to a specific visit in 1969 when her mother had to call the police because he had been drinking and had become quite aggressive. During cross-examination, the veteran's daughter said that when her father had lived at home it was not usual for him to have the car if he was going drinking, saying that
(h)e would have it on the odd occasion but it was not common practice
and that
(m)y mother... did not like him drinking and driving and she would ask him not to take the car.
She also stated that her father
* considered himself to be a safe driver. I always considered he drove too fast... * always considered himself a better driver when he'd had a drink, he was more aggressive... * drove too fast at any time
He had once fallen from a train while, and presumably because, he was intoxicated.
A report to the federal Minister for Transport by an Expert Group on Road Safety entitled "The Road Accident Situation in Australia in 1975", contained the following material in relation to death caused by road accidents:
FATAL ACCIDENTS Australian studies have consistently found that about half of all drivers killed have blood alcohol levels of 0.05 percent or greater. In single vehicle accidents the proportion is of the order of 70 percent. Moreover, more than one third of the former and more than one half of the latter have levels of 0.15 percent or greater.
Judicial review of the first Tribunal decision
18. In the decision reviewed by Morling J, the first Tribunal found that there was "an element of doubt about the crucial fact of alcoholism" and about whether it was war-caused, but accepted that the Act required these doubts to be resolved in favour of the applicant unless the non-existence of the facts was established beyond reasonable doubt. This requirement was found not to have been met. As to the issue, which is also a central matter in this appeal, of whether the veteran was affected by alcohol at the time of his accident, the first Tribunal said:
The time of the accident, 2 o'clock in the morning, indicates a social occasion, given that we know that the veteran's last working shift had finished at 6 pm the previous day. He was driving at a high speed, which is a sign of uninhibition. Alcohol notoriously reduces inhibition. I consider that it is more than possible that the veteran was driving his vehicle whilst intoxicated. Certainly, the non-existence of that fact has not been established beyond reasonable doubt.
In respect of these and other facts, Morling J held that the first Tribunal had applied the wrong test for section 120(3). He said at 434:
There is nothing in s.120(3) itself which requires the Commission to resolve any doubt as to the existence of a fact in favour of a claimant for pension unless the non- existence of that fact is established beyond reasonable doubt. In East v Repatriation Commission ..... it was argued that the words `reasonable hypothesis' in s.120(3) take their colour from s.120(1). It was also argued that the effect of the adoption of the phrase `beyond reasonable doubt' in s.120(1) is to exclude a determination adverse to a claimant where there exists a possibility which is not fantastic or unreal. These arguments were rejected by the Court, which said that they paid insufficient regard both to the history of the legislation and to the meaning of the phrase `reasonable hypothesis': 16 FCR 517 at 531-2.
Morling J then referred to other cases dealing with the meaning of the subsection and concluded that the true test required a consideration of "whether an assessment of the whole of the material before it caused it to be of the opinion that the material raised a reasonable hypothesis connecting the veteran's death with his war service".
In returning the matter to the Tribunal for reconsideration, Morling J stated at 436:
When the Tribunal reconsiders the matter it will be open to it to form the opinion that the material before it raises a reasonable hypothesis connecting the veteran's death with his war service if, but only if, the material points to, and not merely leaves open, the hypothesis as a reasonable hypothesis. That is not to say that any fact upon which the hypothesis is based must be proved on a balance of probabilities. But it will not be proper for the Tribunal to proceed on the basis that if there is any doubt as to the existence of a fact which it thinks is material, then the doubt is to be resolved in favour of the respondent unless the non-existence of the fact is proved beyond reasonable doubt.
He cited with approval the judgment of Justice Hill in Gilbert v Repatriation Commission (1989) 10 AAR 73 at 81.
The second Tribunal's determination
23. The second Tribunal was constituted by the President and two members. As well as the material tendered to the first Tribunal, there was before the second Tribunal additional material including new statements by the applicant and her daughter, who also both gave oral evidence to the second Tribunal, a report of a specialist in the treatment of alcohol problems, new statistics on road accidents and their link with alcohol, and a statement from the veteran's paymaster regarding pay practices in 1969.
The alcohol hypothesis
24. The second Tribunal found that:
..... although the veteran was an alcoholic, which is conceded by (the Commission) there is absolutely no evidence pointing to the hypothesis that he was drunk at the time of the accident that caused his death. In fact there is uncontradicted evidence to the contrary such as the hospital records and the findings of the Coroner. The evidence of (Mrs Lowerson) at best, shows that in previous years when the veteran lived with his family, he had a tendency to get drunk on pay nights or towards the end of the week. Even so, there is evidence that if he had been drinking heavily he would often catch the train home, and that pay night was not always Friday night. There is also evidence to show that the veteran did drink and drive but as with the evidence of his drinking habits, there is no temporal connection with the night of the accident.
The fibrillation hypothesis
25. The second Tribunal's conclusion on this hypothesis was
..... that there is little or no evidence pointing to the hypothesis that the veteran died of his war-caused heart condition. As with the alcohol hypothesis, it is pure speculation with probative evidence suggesting that it was not the cause of death. The Tribunal considers the lack of any finding of fibrillation upon admission to hospital and the failure to find the presence of mitral stenosis in the autopsy to be highly persuasive. It also notes that in his report dated 6 May 1988 and in his oral evidence Dr Leigh conceded that the theory that fibrillation caused the veteran to lose control of the car was speculative.
The Tribunal accordingly found itself "unable to find any basis in fact for this hypothesis".
Issues in the appeal
27. Section 120 of the Act requires the forging of a causal chain between a veteran's "incapacity from injury or disease" or "death" ("the morbid condition" according to Justice Brennan in Bushell) and the veteran's "operational service" as defined elsewhere in the Act. In order for the claimant to become entitled to the pension referred to in section 120, the morbid condition must be "war-caused", that is, linked in the prescribed fashion to operational service (the "war-caused issue"). But there is another issue contemplated by section 120. The war-caused issue cannot be tried without the cause of the morbid condition itself being determined. Where the morbid condition is death, it is the cause of death, for example drunkenness or a heart condition, which must also be shown to be war-caused (the "cause of condition issue").
The cause of condition issue is crucial to this case. In the alcohol hypothesis it comprises two steps: first, that the accident was materially caused by the veteran's drinking or alcoholic state on that night; and second, that the drinking was driven by his alcoholism. In the fibrillation hypothesis it also comprises two steps: first, whether the veteran's heart condition had developed mitral stenosis; and second, whether the mitral stenosis caused a fibrillation on the night of the accident so that the veteran lost control of the vehicle.
In contrast to cases such as Bushell and Byrnes, there is no war-caused issue in this case. Both of the conditions alleged by the applicant to satisfy the cause of condition issue, the alcoholism and the heart condition are now conceded to be war-caused. If the applicant succeeds on the cause of condition issue she is entitled to her pension. 30. Before discussing the second Tribunal's conclusions in this context, it is appropriate to discuss two preliminary questions of law arising in the appeal.
Preliminary question 1: standard of proof
31. The first question is whether the reasonable hypothesis test in section 120(3), which is at the centre of the war-caused issue, has any application to the cause of condition issue. In other words, where there is found to be a reasonable hypothesis under section 120(3), is the claim established under subsection (1) unless the decision-maker is satisfied beyond reasonable doubt that the cause of condition issue is not established, or need it only be proved to some other simpler standard of satisfaction? It should be noted that section 120(6) disavows an onus on any party to prove "any matter that is, or might be, relevant to the determination" of any claim, notwithstanding anything else in the Act.
None of the judgments in Bushell discusses under which subsection of section 120 the cause of condition issue falls, nor what standard of satisfaction applies to it. Nor has the effect of section 120(6) on, for example, section 120(1) been explained. Justice Brennan stated at 426 that section 120(3) does not apply to the establishment of the existence of the morbid condition, where in dispute, nor to the existence of operational service. His Honour said that in establishing these facts, section 120(1) applies unless the decision-maker is satisfied beyond reasonable doubt that they did not exist. In this appeal both sides appeared to consider the cause of condition issue as falling under section 120(3) although, as the applicant acknowledged, Justice Brennan's approach is "a far more favourable approach to us...than the approach adopted by the Tribunal."
However, neither party appeared to press Justice Brennan's construction as applicable here and the case proceeded to be argued under section 120(3). In the light of our conclusions, it is not necessary to decide finally in this case, where the matter has not been argued, whether subsection (1) or (3) applies to the cause of condition issue or what role is to be given to subsection (6). We proceed on the basis that the more difficult of the tests for the applicant, namely that in subsection (3), applies.
Preliminary question 2: raised facts
34. The second preliminary question under section 120(3) concerns the meaning of "raised facts" in the majority judgment in Bushell (Mason CJ, Deane and McHugh JJ) at 414:
The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts (`the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. (emphasis added)
The abstract meaning of "raised facts" is further explained by the majority's use of the analogy of a judge's decision in a criminal case that facts are capable, if true, of raising for example the defence of provocation. In finding "raised facts" the decision-maker is not to have regard to "conflicts in the material": the material must simply be capable of pointing to or permitting the inference, in a non-technical sense, of facts supporting a hypothesis which is reasonable if the facts are assumed to be true. Thus, as the majority recognised in Bushell at 415, section 120(3)
..... is not concerned with the proof or satisfaction of a claim but with whether there is some `material' which calls for a determination under s. 120(1).
In other words, the subsection requires the decision-maker to assume the raised facts to be true for the purpose of determining whether the hypothesis is reasonable, in the sense that it is not "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous": East v Repatriation Commission (1987) 16 FCR 517 at 532. That is why the subsection does not speak of any standard of proof or satisfaction for the decision-maker to find that the raised facts exist.
In Byrnes at 569-571 the High Court said:
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified the question for determination is whether the hypothesis is reasonable... In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable...
Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or facts relied upon to support the hypothesis are not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis.
The passages in the joint judgment in Bushell that indicate that once the "raised facts" raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved, should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s 120(1), to preclude a finding by the Commission that the injury was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered "the whole of the material" bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision-maker. Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that "the factual foundation upon which the hypothesis can operate does not exist".
The Court summarised its construction of the two subsections as follows:
(1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.
Thus once the hypothesis is identified -- that is supported by "facts pointed to by the material" -- and then found to be reasonable, the analysis moves to section 120(1) where a high degree of satisfaction is required that the raised facts do not exist if the hypothesis is to be discharged and the claim is to fail. As Foster J, when a member of a Full Court of this Court, said in Webb v Repatriation Commission (1988) 19 FCR 139, the hypothesis is not required to be established to any degree of proof commonly referred to in the law. But the data at the end of the day must be found by the Commission to exist. The raised facts in this case
One of the problems to have arisen in the very difficult task of interpreting section 120 is the concept of "facts" which do or do not exist. It is at least confusing, if not more, to speak of a true or false (or untrue) "fact". What is really being referred to is evidentiary material, in an administrative law sense, which suggests a particular factual conclusion. It is this material which may be shown to be true or untrue in the exercise to be performed under subsection (1); that is, to adapt the language of Byrnes, a piece of factual material needed to sustain the hypothesis may be disproved, or the truth of a necessary fact inconsistent with the hypothesis may be proved, beyond a reasonable doubt. It is in this context that what are to be treated as the raised facts is such an important issue in this case.
The alcohol hypothesis
41. In relation to the alcohol hypothesis, the second Tribunal noted:
(The legal representative of the applicant) conceded that if the Tribunal could not accept the fact raised by inference that the veteran was drunk at the time of the accident because it was of the opinion that on the material before it that inference could not be drawn, the claim must fail on the basis of section 120(3). He argued however that the Tribunal should draw the inference that because the veteran was an habitual alcoholic he was drunk at the time of the accident.
Consistent with or based upon its finding, as quoted earlier, that there was a complete absence of evidence to support the fact, the second Tribunal refused to draw the inference that the veteran was drunk at the time of the accident. Lahrs v Eichsteadt (1961) Qd R 457, an authority for the proposition that evidence of habit is admissible to reconstruct events where there is no evidence as to what actually happened, was distinguished on the basis that there was "a lack of reliable evidence as to the veteran's habits" and that "it would require the Tribunal to specifically ignore facts suggesting that the veteran had not been drinking and was not drunk at the time of the accident". These facts were identified as:
1. that Mr Coelho as the eye witness to the accident made no mention of alcohol;
2. that Constable Byers as the police officer at the scene of the accident made no mention of alcohol; and
3. that the hospital staff made no mention of alcohol despite specific instructions on a hospital admission form to report signs of alcohol consumption.
The Tribunal went on:
But there is even stronger evidence to support that fact. The coroner, an officer appointed under statute who had the specific task of ascertaining the cause of death of the veteran, made no finding of alcohol contributing to the cause of death. That finding, made by an expert in such matters, was made soon after the accident. Not only is it conclusive evidence of the cause of death, but it has the distinct advantage of being carried out at the relevant time. In the absence of further strong evidence, it would be folly for this Tribunal, over 20 years later, to decide otherwise.
This determination means that the applicant must in relation to the alcohol hypothesis establish from the material the fact that the accident was caused by the veteran's drinking before the hypothesis can reasonably arise. If this viewpoint were correct, claimants would often have great trouble in succeeding especially, as all too frequently happens in these cases, after the passage of many years and with a somewhat unsatisfactory state of the evidence as a result. Amongst other things such a consequence might encourage still further delay in the disposition of claims. In our opinion this is not the correct meaning of the majority judgment in Bushell.
The facts pointed to by the evidentiary material in this aspect of the case are:
1. the veteran was a war-caused alcoholic and he liked intoxicating liquor
2. he had no hesitation in driving a car no matter how much he had had to drink
3. Friday nights were often occasions when he would drink heavily -- indeed it was unusual for him not to drink heavily on a Friday night
4. he drove too fast at any time
5. the veteran considered he was a "better driver when he'd had a drink, he was more aggressive"
6. the veteran was driving at speed as he drove around the curve in the highway
7. this was a single vehicle accident in which the car behaved in a way consistent with reckless driving
8. statistics reported by the Expert Group on Road Safety indicated that approximately 70% of drivers killed in single vehicle accidents had blood alcohol levels of 0.05% or greater, with more
than half of that number having a level of 0.15% or greater
9. the veteran had finished work at 6 pm on the Friday evening prior to the accident and he was a long way from his home
10. the accident occurred in the early hours of Saturday morning and there was no evidence of the veteran's activities in the intervening period
11. no one who saw the veteran at or after the accident (not Mr Coelho, Constable Byers nor anyone at the Bankstown Hospital) noted the presence of alcohol. Nor did the Coroner
As will not infrequently happen, some of these facts might tend to disprove the hypothesis, or do so at least as much as they assist to establish it. To the extent that they are in the former category, they are not "raised facts" because they do not "support the hypothesis". But this list clearly raises matters and identifies evidence which, if accepted or found to be true, point to alcohol as a manifestly reasonable hypothesis of the cause of the veteran's death in accordance with the concept defined in East and Bushell. They are the types of material upon which circumstantial cases are regularly put to juries in criminal proceedings, such as to establish the defence of provocation referred to by the majority in Bushell. Under section 120 their reliability is not to be challenged until the Tribunal comes to determine whether it is satisfied beyond reasonable doubt that they are unproved ("do not exist"). These "raised facts" could be attacked in relation, for example, to the accuracy of Mr Coelho's recollection, the reliability of the evidence as to the veteran's drinking patterns given by the applicant and her daughter, the trustworthiness of Mr Watts' recollections, the correctness of the road safety statistics, and so on. There was no such challenge.
The fibrillation hypothesis
47. Again it is necessary to consider the material before the second Tribunal and its findings on this issue to determine whether, on this ground also, the applicant's claim for a pension should have been granted.
Dr Boyd Leigh, a consultant surgeon who had served in the AIF during World War 2, gave evidence to the second Tribunal, on behalf of the applicant, of having diagnosed the veteran with mitral stenosis in 1956. He also said that Dr Harry Windsor, an eminent heart surgeon with whom Dr Leigh had worked but who had since died, had agreed with this diagnosis. In referring to the fact that the post-mortem examination did not uncover any finding of mitral stenosis, the Tribunal noted Dr Leigh's evidence that such evidence is hard to find and "might have been missed" by the doctor conducting the autopsy.
Dr Graham Perkins, a departmental medical officer called on behalf of the Commission, disagreed that the veteran had been suffering from mitral stenosis on the basis that there had been no finding to that effect in the autopsy report. Of that report the Tribunal commented:
The report stated that there was a slight thickening of the aortic valve which supported the diagnosis of aortic stenosis but no thickening of the mitral valve.
In fact the report only referred to the thickening of the aortic valve and made no mention of any abnormality of the mitral valve, although the observation of one and the non-reporting of the other may imply that the mitral valve was normal. Dr Perkins said that there was no evidence of fibrillation at the time of admission to hospital. He thought it "an unlikely scenario" that the veteran was fibrillating at the time of the accident but that his heart had reverted to normal by the time of admission.
Dr Peter Francis was a consultant physician who had examined the veteran in 1968. He found no evidence of mitral stenosis at that time, notwithstanding that it was his practice to specifically listen for the murmur that was indicative of its presence. His diagnosis at that time was that the veteran was suffering from aortic sclerosis. According to the transcript (AB 152), Dr Francis testified, apparently from the hospital or autopsy records, that the veteran was found with atrial fibrillation on admission to hospital. From the doctor's other evidence we think that the word "not" may have been omitted. On the other hand he agreed that it may have been missed. He said that atrial fibrillation was more likely to occur in patients with severe mitral stenosis and agreed in cross examination that 90% of patients with mitral stenosis have atrial fibrillation. He stated in his report:
Although it was possible that the veteran suffered from an attack of fibrillation and that the heart then reverted to its normal rhythm following the accident, this was pure speculation and there was no evidence to support this hypothesis. (emphasis added)
The use of the expression "pure speculation" is explained by this oral evidence given by Dr Francis:
What would be the chance he had an episode of fibrillation which reverted to normal rhythm following the trauma of the accident? --- That could happen; that is a possibility. But there is no evidence? --- There is no evidence it was. There can be no evidence.
Dr Leigh also used the word "speculative" to describe the theory that fibrillation caused the veteran to lose control of the car. However, it is important to look at the context in which the remark was made to understand what he meant. In his report dated 6 May 1988, Dr Leigh stated:
...I should like to point out that he was accepted as having rheumatic endocarditis and this virtually means that he had rheumatic fever which was likely to have affected the whole of his endocardium and while the systolic murmur was clearly documented in the earlier records I should like to point out that my own certificate of 1956 drew attention to the fact that he had a mid diastolic murmur which was heard only when he was on his left side. This was a finding that was confirmed by Dr Windsor who also thought that he (had) mitral stenosis and I have already pointed out to you why I have occasion to remember this man. I have no doubt perusing the records that this man did have mitral stenosis as well as an aortic lesion.
...I have already made the point that I do not believe the diagnosis of mitral stenosis is ruled out, particularly in view of the clinical findings of 1956. There is no evidence that he did fibrillate, but anybody who has rheumatic endocarditis and a mitral lesion and possibly an aortic lesion, in my opinion, is likely to fibrillate, or is likely to get severe chest pain which just might cause them to lose control of a vehicle they were driving. While this might be considered to be speculative (our emphasis), I don't believe that it makes it any less valid.
Dr Leigh's cross-examination included the following evidence:
Q. I take it the reason for the term 'speculative' is because there is no evidence that (points) to that chain operating at the time of the accident? A. With respect sir, I am not sure that I agree with that statement.
Q. Well I wonder could you comment - - -? A. Yes, yes.
Q. - - -upon it sir please?
A. Well, the man was known to have rheumatic endocarditis and he was known to be an alcoholic and both of these conditions in my opinion could predispose to an episode of fibrillation. And so while it is a speculation I think it is a possibility and that is my reason for saying it. Two conditions which, in my opinion, would cause it.
Q. Indeed, but there is no evidence at the time? A. No, no sir, quite so.
...
Q. There is no evidence for that? ... A. ... Except the indirect linkage.
Q. I take it that as the prudent medical practitioner, you are unwilling to exclude any possibility it is on that basis that we are...?
A. No, I do not think that is right, I think that what I am saying is that this man had two conditions that in my mind could well predispose to and it is a possibility but that does not mean that I am - you know, saying anything might happen or could happen. As you are well aware I am sure they say that in medicine anything could happen and they underline the anything. That is not what I am saying. I think that this man had a chain of events where this is quite a possibility but there is no evidence that it did actually happen.
This evidence was not specifically adverted to or commented on by the second Tribunal. However, on the aspects of Dr Leigh's evidence with which it did deal, the Tribunal stated at paragraph 26:
The Tribunal considers that there is little or no evidence pointing to the hypothesis that the veteran died of his war- caused heart condition. As with the alcohol hypothesis, it is pure speculation with probative evidence suggesting that it was not the cause of death. The Tribunal considers the lack of any finding of fibrillation upon admission to hospital and the failure to find the presence of mitral stenosis in the autopsy to be highly persuasive. It also notes that in his report dated 6 May 1988 and in his oral evidence Dr Leigh conceded that the theory that fibrillation caused the veteran to lose control of the car was speculative.
However, when Dr Leigh's evidence is considered in context, it is clear that he was not using "speculative" in the sense used in East. Nor, in our opinion, did Dr Francis use "pure speculation" in the sense that the hypothesis was "obviously fanciful, impossible, incredible or not tenable, or too remote or too tenuous." He did describe the hypothesis as "tenuous" (not perhaps "too tenuous") but on analysis, his evidence is to the same effect as Dr. Leigh's, namely, that it was possible that there had been fibrillation, but that there was no evidence that this was so because no direct or actual evidence was possible in the circumstances.
In our opinion, the raised facts in respect of the fibrillation hypothesis were:
1. that the applicant had a war-caused rheumatic endocarditis
2. that he had probably had rheumatic fever
3. that this fever was likely to have affected the whole of his endocardium including his mitral valve
4. that the veteran had consequently developed mitral stenosis (on the findings of Dr Leigh confirmed by Dr Windsor)
5. that a person who had rheumatic endocarditis and a mitral lesion and possibly an aortic lesion was likely to fibrillate
Did the second Tribunal misdirect itself on the test to be applied under section 120(3)?
58. In coming to its decision to reject both of the hypotheses advanced by the applicant, the second Tribunal cited the following passage from the majority judgment in Bushell at 413:
Sub-section (3) is concerned with whether `the material' raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s (3), as demonstrated by its terms and its history, is to ensure that a claim to which s.120 applies is not met unless there is some material which raises the relevant causal hypothesis...
And these words at 415-6:
... it is the duty of the Commission under s.120 to decide the claim on the material before it and, unless there is material which raises a reasonable hypothesis connecting the operational service with the incapacity or death, there is nothing upon which the Commission can find that the incapacity or death was war caused within the meaning of s.120(1). But once the material raises such a hypothesis, the operation of s.120(3) is spent and the case falls to be determined in accordance with s.120(1). That is to say the Commission must determine that the injury etc. was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination. The Commission will be satisfied beyond reasonable doubt `that there is no sufficient ground for making (the) determination' if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.
The emphasised words were added by the Tribunal and it appears to have considered them as related to section 120(3). For when referring to this subsection, the Tribunal said:
The High Court has made it clear that subsection 120(3) is exhaustive in a case where the Commission (or the Tribunal) is satisfied beyond reasonable doubt that it cannot accept the facts upon which the hypothesis rests. This is just such a case. On the material before it the Tribunal would be required to make inferences which have no basis in fact in order to accept either of the hypotheses put forward by the respondent.
With due respect, this is simply not what the High Court said at all, as the first of the two quoted passages from Bushell makes clear.
The alcohol hypothesis
62. The second Tribunal defined the alcohol hypothesis in terms that the veteran was drunk at the time of the accident that caused his death. As to the hospital records, the Tribunal noted that
...the hospital staff made no mention of alcohol despite specific instructions on an admission form to report signs of alcohol consumption.
But the Tribunal drew the conclusion that this fact, and "the findings of the Coroner", represented "uncontradicted evidence of an absence of alcohol".
The applicant conceded that there was nothing in the hospital notes at the time of entry evidencing any consumption of alcohol. But there was no evidence that the veteran's blood was tested for evidence of alcohol. Indeed the applicant argued that neither was there any evidence as to the practice of hospital staff in making assessments of whether persons, especially unconscious persons who were not expected to live, were affected by alcohol at the time of admission. Further, not only were there no instructions on the admission form, there was in fact no admission form evidenced at all. The applicant submitted that the only document which could possibly fulfil the description of the "admission form" referred to in the second Tribunal's reasons was the Bankstown Hospital's Report of the Death of a Patient to the Coroner. That report provided for the personal details of the deceased person and then for a "synopsis of clinical notes", which required the person completing the form to record in narrative form certain information including the following items:
(a) History (including relevant past history);
(b) Examination on Admission (including evidence of injuries, alcoholic consumption, or other relevant clinical findings);
(c) Treatment;
(d) Subsequent Progress;
(e) Opinion as to Cause of Death.
Provision was also made for "Additional Remarks".
The medical officer who completed the form made no mention, either in response to item (b) or in any other part of the report, of alcoholic consumption having been observed at the time of admission. In our opinion the most that the lack of reference to alcohol consumption in the hospital records, the statements presented to the Coroner and to the Tribunal itself, and the Coroner's findings could constitute was circumstantial evidence against the alcohol hypothesis. It could not be direct evidence of lack of alcohol consumption as there was nothing to show that any of those dealing with the veteran after his accident turned their minds to the question. There was simply no reference to alcohol consumption at all.
Being at best circumstantial evidence against the alcohol hypothesis, this evidence should then have been examined in the light of the evidence pointed to by the applicant that the veteran was, as described by counsel, a "hopeless drunk" who "went out on Friday nights and got whacked". On the basis of what was known about the veteran's drinking patterns and alcoholism, the Tribunal had only to be satisfied that it was not remote, fanciful or speculative to suggest that he had been drinking and that alcohol was a cause of the accident.
However, in considering the alcohol hypothesis, the second Tribunal did not use the material before it to determine whether facts were raised which supported such findings. Rather, it applied its consideration of the whole of the material to the question whether as a fact the veteran had been drinking in the hours prior to the accident. Its finding that it was not so satisfied was based on the absence of anything to that effect in the evidentiary material. In other words, the Tribunal made its finding by preferring the absence of evidence of drink to the positive evidence of the veteran's drinking habits and practices. It then concluded that as it was not satisfied on the evidence that the veteran had been drinking, there was no material to support the alcohol hypothesis. The Tribunal's approach thus involved choosing between evidence in support of the alcohol hypothesis and evidence against it, deciding which it accepted and which it rejected, and then forming an opinion as to whether a reasonable hypothesis had been raised.
This is the very kind of exercise which Bushell proscribes. It forced the respondent to concede on this appeal that in coming to its determination and state of satisfaction under section 120(3) the second Tribunal had applied "some unparticularised civil standard". In fact, as we have shown, the raised facts represent strong circumstantial evidence of the veteran's drunkenness at the time of the accident. This evidence pointed to the alcohol hypothesis and satisfied the very limited fact-finding exercise required by section 120(3).
Contrary to its own categorisation of its approach to the matter, the fact-finding function in which the Tribunal engaged does not arise under subsection (3) at all where, as we have said, the only question for consideration is whether the evidentiary material points to facts supporting a reasonable hypothesis that the death was causally connected to the veteran's war-caused alcoholism. It is only subsection (1) which concerns the acceptance or rejection of "the facts upon which the hypothesis rests." As the majority in Bushell clearly stated at 415, the existence of alternative adverse hypotheses does not destroy a supporting hypothesis. Competing material, facts or hypotheses are relevant only under subsection (1) to see whether they can explode the hypothesis relied on by the claimant by assisting the decision-maker to become satisfied beyond reasonable doubt that the "raised facts", meaning the evidentiary material upon which the hypothesis rests, are unproved ("do not exist"). In our view the second Tribunal clearly erred in law by confusing and blurring these difficult but quite distinct and fundamental principles governing the operation of section 120.
The fibrillation hypothesis
70. The second Tribunal's misunderstanding of the exercises to be carried out under the two subsections becomes even clearer in respect of the fibrillation hypothesis, where it demonstrated the difficulty that section 120 was apparently intended to overcome -- namely, the problem faced by a decision-maker, not bound by the rules of evidence and dealing with matters necessarily clouded by the passage of time and lack of material, in trying to make findings about complex medical and technical issues. The Tribunal's rejection of the fibrillation hypothesis meant that it determined that there was not a reasonable hypothesis that the veteran's rheumatic endocarditis resulted in or led to mitral stenosis which caused the veteran to fibrillate and lose control of the car so as to cause the accident and the injuries from which he died. It reached this conclusion by weighing up for itself the evidence as to whether the veteran could have been suffering from mitral stenosis at the time of the accident and accepting as fact the evidence of the Commission's doctors on this subject over the evidence called in support of the applicant's case.
As previously noted, Bushell and Byrnes make clear that the decision-maker is not concerned with proof of facts at the subsection (3) stage. There was material before the Tribunal which supported the hypothesis of nexus. The hypothesis was reasonable. That the evidence did not establish a fibrillation as a fact is irrelevant because that is not the test or task under subsection (3). Yet the Tribunal determined non-fibrillation as a fact, to an unstated standard of satisfaction but possibly on the balance of probabilities, by rejecting the evidence of Dr Leigh (and Dr Windsor) and considering Drs Francis and Perkins as having given "probative evidence suggesting that (a fibrillation) was not the cause of death". The Tribunal described the absence of a finding of fibrillation upon the veteran's admission to hospital as being "highly persuasive". In other words, at the stage of examining whether there was material to support a reasonable hypothesis, the Tribunal accepted as definitive of the cause of death the evidence of the Commission's medical practitioners and the lack of a positive finding of the relevant condition. This was a clear error of law. As we have already noted more than once, Bushell specifically holds that the existence of conflicting medical opinions is insufficient to categorise a hypothesis as unreasonable.
Conclusions
72. As a result of its error in applying section 120(3), the second Tribunal clearly set a much higher threshold for the raising and testing of the hypotheses arising from the material than is contemplated by the subsection. The legislative intention was aimed, as a matter of public policy, at assisting claimants to succeed without being subjected to strict or legalistic proof of the hypotheses their cases raise. What the Tribunal did here, in putting the facts supporting the hypotheses in question to an unspecified standard of proof or satisfaction under subsection (3), was thus to circumvent the legislative intention.
These conclusions make it unnecessary to examine whether leave should be given to appeal the decision of Morling J out of time. But they open up for consideration whether the Court should now remit the matter to the Tribunal yet again or decide the matter itself. The case is extraordinary in that it has been running for no less that eighteen years and seven months since Mrs Lowerson lodged her original claim on 28 November 1975. She is now seventy-two years of age. She was fifty-four when the claim was made. No words are necessary to describe this situation. Nor is it appropriate to try to apportion blame. For its part, even the Court has played a small part in the delays in this case. In our opinion the whole procedure calls for urgent review especially as exceptional circumstances provide no way out of Parliament's injunction in section 44 of the Administrative Appeals Tribunal Act 1975 that this Court is only to decide questions of law arising from decisions of the Tribunal.
Nevertheless, it is our view that there are no remaining factual issues for determination. The deceased veteran's alcoholism and heart condition are both conceded. So is the fact that they were war-caused. There were any number of raised facts pointing to alcohol and the heart condition being causally linked with his death. Although it appears that the second Tribunal, in considering the alcohol hypothesis, mistook the report to the Coroner as being the admission form and that there was therefore no evidence to support its finding
..... (t)hat the hospital staff made no mention of alcohol despite specific instructions on an admission form to report signs of alcohol consumption .....
we are of the opinion that the Tribunal could have inferred, from the absence of any evidence on the subject by those who attended the veteran at or soon after the time of the accident, that he was not drunk at the time of the accident. However, it was not possible for it to have been so satisfied beyond a reasonable doubt. Contrary to the Tribunal's conclusion, the Coroner's finding of the cause of death was probably not a "fact" at all; it was certainly not a fact established beyond a reasonable doubt. That coroners' findings represent conclusive evidence of causes of death for the purposes of state Coroners' Acts provides them with no status as definitive or even especially influential findings of fact within the framework of section 120 of the federal Veterans' Entitlements Act. If that situation were otherwise, many claimants for pensions under the Act would have no right to litigate their claims at all, or little chance of succeeding if they did. Coroners are not "experts" in the fact-finding tasks assigned to them by their statutes, as the Tribunal asserted. Coroners inquire, consider evidence and draw conclusions, a task at which they, like other judicial and quasi-judicial officers, no doubt gain experience and expertise over time that increase their chances of being correct. But their findings and conclusions are no more.
At the highest the Coroner's finding in this case was a piece of evidentiary material, in administrative law terms, which pointed in the direction of a hypothesis antithetic to the applicant's claim. We doubt that it even went that far because it was really the absence of a finding in relation to alcohol that the Tribunal relied on, and we do not think that that absence can be so used, at least without more evidence as to the practices in this respect of the particular Coroner or of coroners generally and those who supply evidence to them. The Coroner also failed to find that a host of other conditions and injuries were the cause of death, indeed he did not receive any other positive expert evidence suggesting other causes such as Dr Leigh's hypothesis on the heart condition. The choice of one of them and failure to mention the others could hardly be used to destroy the weight and persuasiveness of those not chosen.
There could be several reasonable explanations as to why there was no other reference to alcohol. The hospital notes, for example, can be explained by the fact that the veteran, deeply unconscious at all times after admission, was apparently in such a critical condition that a specialist physician determined that there was no purpose in operative intervention or other treatment. The hospital staff may simply have considered that there was no utility in detailed observations and note-keeping. Similarly, Mr Coelho and Constable Byers may never have been in a position to observe and mention alcohol, there being no evidence, and no evidence from which an inference could be drawn, that either went close enough to the veteran to detect it. In our opinion, the second Tribunal's ultimate conclusion on the alcohol hypothesis could therefore not be justified under subsection (1).
Nor, in our opinion, could the second Tribunal have been satisfied beyond reasonable doubt that any of the evidentiary material pointing to the fibrillation hypothesis was disproved beyond reasonable doubt. The Tribunal misunderstood the key so-called "speculative" element of the medical evidence on which it purported to rely. Even if the failure to advert to the mitral valve in the autopsy report could, in the light of the findings of thickening of the aortic valve, provide an inference that the mitral valve was normal and therefore not stenotic, it was certainly not a fact proved beyond reasonable doubt. Dr Leigh's diagnosis and assessment could not be disproved beyond reasonable doubt by the failure to mention the matter on autopsy. The Tribunal's conclusions would in this respect also have been erroneous under subsection (1).
In these circumstances it is our view that the circumstances for the grant of the requisite pension have been established and that there is no fact-finding task left for the Tribunal to perform. Accordingly we would allow the appeal and set aside the second Tribunal's determination. In lieu thereof we would conclude that Mr Lowerson's death was war-caused as required by section 120 of the Act.
In order finally to dispose of the matter, it is necessary that the date from which the appellant is entitled to a pension under section 13 of the Act and the amount of pension properly payable be determined. It may well be that these matters are, or can be, the subject of agreement between the parties. We propose that no orders be made at this stage in these respects but that the parties be directed to bring in, within 14 days of this date, short minutes of orders to give effect to any agreement as to those matters. If there is no agreement, we further propose that the short minutes should provide for the matter to be remitted to the Administrative Appeals Tribunal for appropriate determinations to be made in that behalf. The respondent will pay the applicant's costs.
The application to extend the time to appeal the judgment of Morling J should be dismissed with no order as to costs.
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