Reardon, J.E. v The Repatriation Commission

[1985] FCA 122

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	1 No. G.294 of 1983
)
GENERAL DIVISION	)
BEZWEFN:
JOHN EDWARD REARDON

Applicant

m:

THE REPATRIATION COMMISSION

Respondent

JUDGE: Franki J.

DATE OF ORDER: 4 April, 1985

WHERE MADE: Sydney

MINUTE OF ORDER OF THE COURT

THE COURT ORDERS THAT:

The appeal be allowed.

The decision of the Repatriation	Renew Tribunal given on	29
August 1983 be set aside.

The claim by the Applicant for a pension pursuant to the

provisions of Section 101(2) of the Repatrlation Act 1920 be

granted.	-
The Respondent pay the	Applicant’s costs of the appeal to be
taxed.
(Settlement and entry	of order is dealt with by 0.36 of the

Federal Court Rules.)

THIS JUDGMENT IS NOT PROVIDED WITH CATCHWORDS AND DOES NOT

KARRANT REPORTING.

IN THE FEDERAL COURT OF AUSTRALIA	1 1
NEW SOUTH WALES REGISTRY	) No. G. 294 of 1983
)
GENERAL DIVISION	)
BETEEEN:
JOHN EDWARD REARDON

Applicant

m:

THE REPATRIATION COMMISSION

Respondent

CORAM: Franki J.

m: 4 April, 1985

REASONS FOR JUDGMENT

This is an appeal by John Edward Reardon, the applicant,

from a decislon of the Repatriation Review Tribunal given on 29

August 1983. The applicant had sought a review from a declslon

of the Repatriation Commisslon. A claim in respect of incapacity

resulting from bronchial asthma, made under 5.101 of the

Repatriation Act 1920 (the "Act") was rejected.

Section 107VZZH (11, (4) and (5) of the Act provldes:

"(1) An applicant in a proceeding before the

Trlbunal or the Commlssion may appeal to the Federal Court of Australia, on a question of

2.

law, from any decision of the Tribunal in

that proceeding. I'

"(4) The Federal Court of Australia shall

hear and determine the appeal and may make

such order as it thinks appropriate by reason

of its declsion."

"(5) Without limiting by implication the

generality of sub-section ( 4 1 , the orders

that may be made by the Federal Court of

Australia on an appeal include an order

affirming or setting aslde the decision of

the Tribunal and an order remitting the case

to be heard and decided again, either with or

without the hearing of further evidence, by

the Tribunal In accordance with e

directions of the Court. I'

An appeal on a question of law was filed in this Court

on 29 September 1983. Extenslve amendments to the Act were made

by the Repatriatlon Leqislation Amendment Act 1984 (No. 97 of

1984) which commenced to operate on 1 January 1985. Section 19

was included in the amendments by which Parts IIIA, IIIB, and

IIIC of the Act were repealed and other parts substituted. The

effect of this was to repeal Part IIIA, under which the

Repatriation Review Tribunal had been set up in 1979, Part IIIB,

dealing with the review of decisions of the Commission by the

Administrative Appeals Tribunal, and Part IIIC, dealing with references and appeals from the Repatrlatlon Review Tribunal to the Federal Court. Section 107VZZH was included in this part.

Part IIIA of the Repatriation Leqislatlon Amendment Act

established a new body called the Veterans' Renew Board and Part

IIIB deals with the review	of declslons by the Administrative
Appeals Tribunal.

3 .

Section 59 of the Repatriation Leqislation Amendment Act

provided that where an appeal to the Federal Court had been

instituted under s.lO7VZZH of the Act before the commencing day

of the 1984 Act, but had not been determined before that day, the

appeal should in effect be preserved as if Part IIIC of the Act

had not been repealed and for the purpose of s.l07VZZH(5) the

second occurring reference to the Tribunal shall be read as	a
reference to the Administrative Appeals Tribunal.

It seems clear that L have the power to hear the appeal.

Indeed, counsel who appeared for the applicant and counsel who

appeared for the Repatriation Commission submitted that there was

an error of law made by the Repatriation Review Tribunal, that	I
should in substance reverse its decision and make orders which

would have the effect of entitling the application t o a pension

in accordance with Division 1 of the Act at such rate as may be

assessed by the Repatriation Commission. I set out the following

statement made by counsel for the Repatriation Commission during

the hearing:

"In essence what we say is that there was

material or evidence before the trlbunal of

acrgravation of an injury or disease or

illness by virtue of conditions of war

service. We say that evidence was there, it

was no t considered by the tribunal, and had

it been considered by the tribunal, havlng

regard to the onus of proof which is laid

down in the legislation, the tribunal could

only have come to the decision that there had

been aggravation and for that reason the

applicant would be entitled to a war pension

to be determined and calculated in accordance

-- 1

4 .

with the Act. That is all we say, we do not

make any other concessions."

I took the view that it was not open to me to give

effect to the agreement reached by the parties unless I was

satisfied that there had been an error of law made by the

Tribunal and that it was proper for me to make a final order

rather than to refe; the matter back to an administrative body to

determine the outstandlng question of fact.

As I have said the decision was one of the Repatriatlon

Review Tribunal which no longer exists and if I were to refer it

to an administrative body it would have to be referred to the

Administrative Appeals Tribunal with my judgment upon the

question of law.

Both parties submitted that the Tribunal had determlned

the matter upon a conslderation only of s.lOl(1) of the Act and

had not paid proper, if any, regard to s.lOl(2).

The relevant parts of s.101(2) are:

"101. (2) Notwithstandmg that, in the case

of a member of the Forces, who, after his enlistment, served in camp in Australia for at least six months or was employed on active

service, the origin or cause of his

incapacity .. . existed prior to his

enlistment, then, if In the opinion of the

Commission or a Board -

(a)	the incapacity from which the member is suffering ... has been contributed to In
any material degree, or has been

5.

aggravated, by the conditions	of his war
service; and

(b) ...

the Commonwealth shall, subject to this Act,

be liable to pay to the member or his

dependants, or both, as the case may be,

pensions in accordance with Division 1."

The decision of the Tribunal contams a number of

findings of fact. I set out certain of them.

The applicant served in the Australian Army from 9 April

1943 to 28 November 1946 including service outside Australia.

The applicant lodged his claim in respect of asthma on

16 August 1967. The claim was rejected and the applicant

appealed to the War Pensions Entitlement Tribunal which

disallowed that claim on 14 October 1968.

On 23 Novembver 1977 a Repatriatlon Board accepted that

the applicant's incapacity from anxiety state was service-

related and on 18 December 1981 the appllcant sought to re-open

his claim in respect	of bronchlal asthma on the grounds that his
anxi.ety state caused	or aggravated his asthmatic condition.

On 13 December 1982 the Repatrlation Commission again

rejected the claim whereupon the applicant sought a review by the

Tribunal whose decision is the subject of this appeal.

6.

The appllcant suffered from seborrhoea and it was common

ground that any Incapacity in this regard had been accepted as

service-related.

The Tribunal was therefore considering a situation where

the Commission had accepted an incapacity from anxlety state as

service-related and was now making a claim for disability based

on asthma.

The Tribunal had before it evidence of a number of

written reports from medical practitioners and the applicant

attended the hearing and gave certain evidence. One of the

findings of fact by the Tribunal was that the appllcant's asthma

can occur at times	when his seborrhoea and anxlety state are
exacerbated.

The Tribuna . l , In Its decision, then said:

"However, the Tribunal is satisfied that

neither seborrhoea nor anxiety state were the

cause of the initial onset of bronchial

asthma in the Applicant. The Tribunal

accepts the medical evidence provlded by Dr.

Perkins in this regard.

It also accepts Dr. Nathan's view that the

Applicant's anxiety state may 'trigger' off a

bronchial asthma attack. However, the

Tribunal flnds the medical opinion that

seborrhoea and anxiety state caused the

Applicant's asthma are tenuous to say the

least. Indeed Dr. Cassar suggested his own

opinion was perhaps 'rather far fetched'.

The Trlbunal 1s satisfied beyond reasonable

doubt that there are insufficient grounds for

granting the claim, and, therefore, affirms

1 .

the decision of the Repatriation Commission,

dated 13 December 1982."

The Tribunal set out the following part of	Dr. Perkins' report in
its decision:

"The basis asthma of genetic a is

predisposition to react to certain stimuli by

an attack of asthma. The main stlmuli are

allergy, respiratory Infection and nervous

stress.

It is my experience that asthma is not

initiated by nervous stress. An asthmatic

attack is itself stressful and I believe that

asthma and stress become associated so that

later stress may provoke an asthmatic attack.

In that sense an anxiety state may not cause asthma but can contribute to incapacity from

asthma, once It has become manifest, by

provoking attacks.

Therefore I do not consider that he

veteran's asthma was initiated by stress

reaction arising from anxiety state or

dermatitis. The evidence of the veteran and

his medlcal attendants does show a relation

between stress and the occurrence of asthma

attacks at later times."

The reference to Dr. Nathan's view was to the view he had

expressed in a report of 13 January 1982 in which he stated:

"MR. JOHN E. REARDON, from 2 Grose Street,

Little Bay, is under my treatment because	of
anxiety state and hronchjal asthma.

I have noticed, that in the last three to

four years in most occasions, an exacerbation

of his anxiety state triggers a severe bout

of bronchial asthma.

In my opmion, not only both are closely

related, but his anxlety state has aggravated

and in most occasions caused an acute

asthmatlc episode. 'I

In my opinion, it is clear beyond reasonable doubt that

the submissions of counsel for both parties is correct that the

Tribunal did not examine the question against s.lOl(2). The

Tribunal was concerned wlth whether disabilities accepted as war

service-related had caused the bronchial asthma and not the

question of whether the incapacity from which the applicant was

sufferlng had been contrlbuted to in any material degree or has

been aggravated by the conditions of his war service.

In my opinion, applylng the test in s.l07VH(2)(a), the

Tribunal could not have been satisfied beyond reasonable doubt

v

that there were insufficient grounds for grantlng the claim once

it applied its mind correctly to the provisions of s.lOl(2) upon

the medical evidence whlch it said it accepted. I am therefore

satisfied that I should give effect to the submission of counsel

for both parties.

I had some doubt whether I should not refer the matter

to an administrative body, which would now be the Administrative

Appeals Tribunal, to determine the Issues in the light of my

findings on the ques5;lon o€ law.

However I have considered the matter with great care and

I accept wlth respect the view of Toohey J. in Law v.

Repatrlatlon Commission (1980) 29 A.L.R. 64 at pp.75-76 where hls

9.

Honour said:

"To remit would further prolong this already

protracted matter and is unnecessary. There

is sufficient material to enable me to

conclude	that	Mrs.	Law should	receive	a
pension	...

The appeal is allowed and the declsion of the

Tribunal set aslde. 'I

His Honour permitted the counsel to address him on the concise

form of the orders which he should make. I will do the same but

it seems to me that the orders which Toohey J. made, a copy of

which I have obtained, provided a suitable framework for the

orders which I should make.

I may say that I have considered a number of cases

including Repatriation Commission v. Law (1981) 147 C.L.R. 6 3 5 ;

Repatriation Commission v. Kupfer, a judgment of mine of 6 August

1982, unreported; Repatriation Commission v. Beazlev, a judgment

of Beaumont J. of 22 June 1983, unreported; Downlnq V.

Repatriation Commission, a judgment of Toohey J. of 27 March

1985, unreported; Johnston v. the Commonwealth (1982) 150 C.L.R.

331, and a judgment of the High Court in Repatriation Commlssion

v. O'Brien of 27 February 1985, unreported. In my opinion

nothing in this ~udqment is contrary to the views . or in __ one

I

case, the ma~ority view expressed In any of those judgments

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