Repatriation Commission v Morcombe, Doris Ruby

CATCHWORDS

Repatrlation - War widow's pension

- Death of former member

of Armed Forces from carcinoma

- aetiology of dlsease unknown

- whether death arose

out of or was attributable to

xrar service -

Construction and operation of ss.47(2) and 107VH

- Question of

fact - Evidence of expert wltnesses not fanclful

- Claim for

pension lodged in 1976 - Request for review of Commissloner's

decision in 1981 to refuse claim

- Relevant date upon which

Commonwealth's llabillty

to pay pension arose

- meaning of

"relevant claim

for penslon" In s.l07VZG(1) (d) .

Repatriation Act 1920

ss.24(1), 24AA, 31,

101(1), 107VC,

107vL, lOZVZG(1) (a), 107VZZH.

The Repatriation Commission

v Dons Ruby Morcombe

No. WA.G 22 of 1983

Beaumont, J.

Sydney

19 September 1983

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

GENERAL DIVISION

No. P7.A.G 22 of 1983

ON APPEAL from the Repatriation Review

Tribunal constituted by

R.P. HASSALL,

D.M. TEHAN and S. McL. HARRIS

BETWEEN

THE

REPATRIATION

COMMISSION

Applicant

-	AND	DORIS RUBY MORCOMBE
Respondent
ORDER

Judge making order: Beaumont, J.

Date order made:	2 September, 1983.
Where made:	Sydney

THE COURT ORDERS THAT:

1. The

appeal is dismissed.

2. The cross-appeal is allowed.

3 . The decision of the Repatriation Review Tribunal

given on 17 March, 1983 is varied so that It is expressed

to operate from

13 December, 1975.

4 . The appellant pay the respondent’s costs of the

appeal and

of the cross-appeal in accordance wlth the

provisions of s.107VZZK.

- 2 -

September,

1983 i s f i x e d as t h e

d a t e

w i t h i n

2 1

d a y s a f t e r

which any

no t i ce o f appea l sha l l be f i l ed

and

served for the purposes

Order

Rule

1 5

( l ) ( a ) ( n l ) .

IN THE FEDERAL COURT OF AUSTFALIA

) )

WESTERN AUSTRALIA DISTRICT REGISTRY

)

No. W.A. G22 of 1583

DIVISION

GENERAL

ON APPEAL from the Repatriation

Review Tribunal constituted by

R.P. HASSALL. D.M. TEHAN and

S. McL. HPRRIS

THE REPATRIATION COMMISSION

Applicant

AND:

DORIS RUBY MORCOMBE

Respondent

W: Beaumont S.

D=:	19 September 1983.

REASONS FOR

JUDGMENT

This

is an

appeal, on

question of law, instituted

under s.lO7VZZH

of the Repatriation Act, 1920

("the Act"). In

its appeal, the Repatriation Commission seeks,

first,

an order

setting aside

a decision

of the Repatrlation Review Tribunal

("the Tribunal")

made

under

s.lO7VC

the

Act.

that

decision, made

an 17 March, 1983, the Tribunal set aside

decision of the Commission to refuse repatriation benefits to

the

respondent in relation to the death of her late husband

which,

she claimed, arose out of or was attributable

to, service in two

world wars. Secondly, the Commission seeks an order setting

aside the further decision of the Tribunal made on

17 March, 1983

that, pursuant to ss.24 and 101 of the Act, the Commonwealth is

liable to pay to the respondent the pension payable under

Division 1 of

Part I11 of the Act in the case

of the death of a

member of the Forces.

The deceased member. Arnold Edward Morcombe, served in

the army in World mar I in Australia, Gallipoli and the Middle East from 1915 to 1919 and in World War I1 within Australia in

1940 ( 4 months) and from	1941 to 1949:	a total service of	11
years and 9 months.

Incapacity arising from uastric ulcer

has been accepted

as being related to World War I1 service but this incapacity dld

not cause death. Mr. Morcombe died on 13 December, 1975, aged 78

years.

The certified cause of death was carcinoma of rectum (6

years) and secondaries of both lungs

( 2 months).

February, 1976,

the respondent applied for a

pension on the grounds that she believed that her husband's

illness was "primarily war caused. He had malaria (from Euypt).

was treated for ulcers (stomach)	... Also operated on in	1970 for
colostomy (cancer)."

3 .

The Repatriation Board rejected the claim

22 June,

1976.

The Commission dismissed an appeal from that rejection

21 September,

1976.

A War Pensions Entitlement Appeal Tribunal

dismissed an appeal from that decision on

22 January, 1979. On

18 April,

1979, the Commission affirmed its previous decision.

May, 1981.

an application was made, on behalf

the

respondent, for the Commission

reconsider under

s.31

s.l07VL(l) the decisions to refuse the grant of pension. On

December,

1981.

the Commission decided not to accede to the

request. Subsequently. an applicatlon for review was made to the

Tribunal which aave its decision, the subject	of this appeal,	on
17 March, 1983.

During

his

service

World

War

I. the

deceased

contracted malaria.

He suffered recurrences from time to time.

He was also hospitalised for enteric disease.

Prior

World War

11,

the deceased suffered from

haemorrhoids.

They were excised in

1941.

In the course of hls

second enlistment and subsequently, the deceased suffered from

dyspepsia. A duodenal ulcer was indicated. In

1949,

he was

admitted

to the hospital for investigation

dyspepsia.

clinical diagnosis of diverticulitis was given.

His

medical

history shows continuing references

to bouts of dyspepsia. On 22

April, 1955,

the Commission approved a pension at a twenty per

cent rate in respect

of the uastric ulcer.

4 .

In	February, 1957, the deceased was examined by a

gastroenterologist, Dr. C.H. Leedman, who reported as follows:

"The story is disquieteninq.

A chronic gastric

ulcer in a man of 60, which after a latent

period, begins to show siqns of activity,

brings up the suspicion of carcinoma. He

should

ideal

case

to submit

gastroscopy and full treatment."

This was the first suggestion of cancer in the medical history of the deceased. However, the gastroscopy revealed only

the existence of

a healing simple ulcer. Further tests in 1958

indicated a

high gastric ulcer. The pension was increased to a

forty per

cent rate. He was hospitalised in 1960 for treatment

of the gastric ulcer. A

chest x-ray report at the time revealed

a linear dense opacity in

one of the lungs but the radiologist

reported that

would be surprised if this were caused by a

neoplasm or an infective lesion and that

he would be inclined to

leave it alone.

The

deceased continued to suffer from chest

problems. In 1968. bronchiectasis

was

diagnosed.

An x-ray

revealed

evidence

chronic

bronchitis

but

localised

pulmonary lesion was seen.

In February,

1970,

carcinoma

of the

rectum

was

diagnosed. Part of the rectum was exclsed by surgical operation.

The

pathologist's diagnosis was "adeno carcinomas of rectum

arising from villous adenomas". This condition eventually caused

death on 13 December, 1975.

The final pathologlcal diagnosls in

the post-mortem report was:

“1.

Disseminated moderately to well

differentiated adeno-carcinoma in keeping

with primary colonic carcinoma

(Previously resected).

2 .

Bilateral

bronchopneumonia.

Emphysema.

Apical lung scars (old healed

TB).

3. Benign gastric ulcers.“

Before

the

Tribunal,

both

the

applicant

and

the

Commission souqht to rely upon

opmion evidence from a number of

medical experts. The Tribunal found that the primary cause of death was carcinoma of the rectum with secondaries in the lung

but that the cause of the cancerous process

in this case was not

known. In the Tribunal and

in this appeal, the argument turned

on the construction and operation of ss.47(2) and

107VH of the

Act (see Renatriation Commission v.

Law (1981) 36 A.L.R. 411).

In that connection, the Tribunal said:

“The Tribunal does not find it necessary to decide

whether or not the villous adenoma was an implicating

factor or

that

it was related to either or both of

the member’s periods of war service during which time

(in 1915)

he suffered from an enteric disorder commonly

known as “Gyppo

tummy“

nor to haemorrhoids that were

excised in 1941.

The clear fact that emerues from

the

evidence is that the cause of the

member‘s

rectal

carcinoma

process

remains

unknown

and

that

the

aetiolouy of villous adenoma is also unknown. If the

Tribunal had to decide this issue on the balance

probabilities

would

the

Commission’s

proposition but that is not the test required under

Section 107VH of the Act.

Thus the whole matter comes

down to the simple proposition which may be quite

plainly and clearly stated

In cases where a disease

or incapacity is one

of unknown aetlology, except where it can be

shown that

a disease or illness could not as a

real possibility be related to war service,

can the Tribunal be satisfied to the required

degree that that disease	or	illness is not
related to war service?

If the answer is 'no' then a pension must be granted.

If 'yes' then a pension should be refused.

The Tribunal rejects the Commission's argument that

where there is no or insufficient evidence to suugest

as a

real possibility that war service was implicated

in the onset

of a disease the Commission has discharqed

the onerous burden qiven to it under the provisions

the Act.

The Tribunal then referred to its own reasons

in a case

of Bannister and to some observations made by Murphy

. in Law's

Case (supra).

In Bannister, the Tribunal had held that

"In cases where the aetiolow of

a disease is

unknown and incapacity

or death arises from

that

disease

then,

except

the

rare

instances which could be positively stated as

falling

outside

the

parameters

of the

appropriate qualifying sections, a	claim for
pension should be granted."

Reference was then made by the Tribunal to

a decision of

the Administrative Appeals Tribunal in a case

of O'Brien:

"In O'Brien's case

a pension had been claimed

for

incapacity

arising

from

essential

hypertension and

a skin rash which was claimed

by the applicant in those proceedings to be related to his war service. Expert evidence was called in support of the claim, and also

in rebuttal of the claim respectively. It was stated that essential hypertension was a

disease of unknown

aetiology

and

was

claimed, inter alia, that it could not

proved

beyond

reasonable

doubt

that

the

condition bras not related to war service, in correctness of a blood pressure reading at the time of discharge. The Administrative Appeals Tribunal was able to be satisfied to the

particular a

challenge was mounted as to the

required degree that that case was one such

that fell into the exclusion mentioned in re

Lennell.

_ .

The Tribunal then continued:

"In Morecombe's case, however,

the Tribunal was

faced with two diseases of

unknown aetiology

one of which miuht have been related to the other (fatal) disease but of which in itself little was known other than it predominantly occurs with advancing age. Nevertheless, there was uood evidence tendered that the

disease could have arisen from a cell insult from ten to forty years or more previously. The Tribunal bears in mind that the member had

more than one-seventh of his lifetime in Army

service and that service, part of

which was

spent

arduous

military

campaigns

Gallipoli and the Middle East in World War

under conditions in which the member suffered

one recorded episode of enteric disorder and

(by inference from the nature of the campaign

and

battle

conditions)

probably

more,

the Tribunal arrives

at the conclusion that

the circumstances of Morcombe's case differ

materially to those of O'Brien and the cases

should therefore be distinguished.

In respect of the application for pension by

Mrs. Doris Ruby Morcombe the Tribunal has

decided

that

not

satisfied

beyond

reasonable doubt that there were insufficient

grounds for granting the claim."

The Commission raises two grounds of appeal:

"1.	The Tribunal erred in Its determination

that

proceeded

set

aside

the

applicant's determination upon the basis that

the respondent's late husband, the member, had

died of a dlsease of unknown aetiolouy whose

connection with his war service had not been

disproved beyond reasonable doubt.

2 .

The

Tribunal in coming to its decision

failed to address itself to the

issue

whether

there

was

before

any

evidence

capable of supporting an inference that there

was

connection between the death of the

member and

his war service."

In the judgnent of the Full Court of this Court in

determine whether Sir Edward Dunlop's report raised "a rational

possibility" that the claim should be granted. A distinction was

drawn between the fanciful and fantastic on the one hand and a

real possibility on the other. This is consistent with the

Case

(19801 31

A.L.R.

140,

reference was made to the need to

reasoning of Murphy

and

Aickin J.

in that case (see

Repatriation Commission

v. Bishop - 5 August, 1983

- unreported -

Toohey J. at pp.10-11; see also Reaatriation Commission

v. Bvrne

(1981) 40 A.L.R.

296;

Lennell

Reuatriation

Commission

unreported -	3 February, 1983 - Full Federal Court -	4 A.L.N.
( 2 9 ) ) .

In Bvrne's

Case (supra.) there was expert

medlcal

evidence of a causal connection between the contraction of

malaria and the death of the ex-serviceman. The Court said	(at
pp.302-303):

"The matter

was one

essentially for the

Tribunal as

the tribunal of fact.

We do not

reuard the

hypothesis put

forward

by Dr.

Metcalf and the other witnesses as fanciful.

. .

9 .

We agree that

it stands as no more than a

possibility but in our opinion the Tribunal

was well entitled to take the view,

as it did,

that the possibility was real and distinct."

It is true that, in the present case, there was expert

opinion evidence to the effect that the carcinoma did not arise

out of

war

service.

However, there was also expert evidence

which urged a different view. For example, in a report dated

May, 1977, Dr.

D. Hainsworth, Forensic Pathologist, State Health

Laboratory Services, Western Australia said:

' I . . .

Apart from certain known factors in the

development

carcinoma,

the

majority

predisposing

and

causative

factors

are

unknown. However, it is known that the genesis of carcinomas is a long term matter

and

that

events

many

years

before

the

development of symptoms are of importance.

effect the Commission are saying

that

two

periods

this

man's

life,

between

1915

and	1919, and between 1940 and 1948 have no

bearing on his subsequent disease. This man's

environment and way of life during these two

periods would be considerably dlfferent from

what they would have been if

he had remained a

civilian and as carcinomas are the end result

the

patients

whole

life-style, these

periods,

opinion, can in no way be

discounted as of no importance."

Dr. T.J.

Constance, a Consultant Pathologist, reported

on 15 December, 1977

as follows:

' I . . .

I have perused the file of this case.

The patient

died from carcinoma of the rectum associated with

metastases.

The

patient suffered from dyspepsia since

least

1942. In 1954 a diaunosis of chronic uastric ulcer was

. .

10.

made based on a barium meal examination. In 1970 he was investigated for a weight loss associated with a fourteenth month history of a change in bowel habits.

The

investigations showed that he was suffering from

carcinoma of the rectum. The patient subsequently developed secondary deposits in the lungs, liver and other organs.

Carcinoma of the larue bowel is

one of the commonest

forms of maliqnant disease and the average age of

patients at the time of diagnosis is the sixth decade.

Predisposing	conditions	include	benign	neoplastic
POlYP5.

recognised fact that

a latent

period

variable duration commonly elapses before malignant

tumours

appear

followinq

the

application

carcinogen.

However, it is not possible to associate

the patient's malignant disease to some hypothetical

agent to which

he may have been exposed during war

service. It is also not possible to relate the dyspepsia to the carcinomatous process or to support

the

statement

that

malaria

played

a role

the

development of malignancy. It

recorded that

the

patient had two villous polyps of the rectum and that

these

had

undergone

malignant

transformation.

should be pointed out

that benign

neoplastic polyps are

slow growing and may

not produce symptoms; moreover, it

appears that many years may elapse before they turn

into invasive carcinoma. It is therefore possible that

the polyps may have been present during war service."

Sir Edward Dunlop, in a general submission, said:

"Modern

researches

have

discovered

some

chemical

substances

deadly in this regard that

sinqle

exposure will cause cancer.

The

same authors in 1966

stated that the interval between first exposure to dust and development of the tumour ranued from 17-55 years

(mean

38).

The individual response to the exposure

seems to be markedly variable. Obviously the deduction

can be drawn that when a service man or woman is sent

to another climate and

a very different environment,

that he or she is likely to be exposed to carcinogenic

factors

which

would not have operated under normal

circumstances and this may determine cancers

which are

not in evidence until middle aue or old age. Some

cancer producing agents must be considered:-

1. Chemical

substances

chemical

11.

carcinogens -

These are a complex and ever growing list to which additions are made at

a bewildering rate.

...

Some individuals live for years both with primary

cancer and metastases. and then suddenly the tumour

gains ascendancy with death of the Individual. The

expanding knowledge of environmental causes of cancer

supports the contention that many cancers affecting

ex-service men in later life may have been determined

by factors operating during their service.

...

In	another general submission in evidence Sir Edward

Dunlop said:

"Obviously the deduction can be drawn that when a

service man c)r

woman is sent

to another climate

and a very different environment, that he or she is likely to be exposed to carcinogenic factors which would not have operated under normal

circumstances and this may determine cancers

which are not in evidence until middle aqe

old age.

Some of these cancers may be harboured for years

without clinical evidence

of their presence as

well contained

foci, e.g. cancer in-situ

inconspicuous

and

well

supported

lesions.

Cytology studies may show the presence of cancer

cells for years before a cancer

the cervic

becomes evident in the female who is affected.

A soldier who contracted bilharzia in Egypt with

bladder or rectal involvement could develop

cancer in these organs after a latent period of

years.

There was also before the Tribunal some extracts from

evidence uiven by Professor Tattersall

in Lennel's Case, (supra.)

. .

12.

as follows:

“Professor Tattersall:

It is believed that cancer does not occur in

a single

step; but that rather there is an insult

to a cell, and

that, following this, the cell is damaged but not, in

fact. a

cancer cell until some further process takes

place

which

called

promotion,

and

a totally

different sort of agent may cause promotion compared

with the agent which

may

cause the oriuinal insult.

Therefore, cancer is seen

occur in

least two

steps.

The

first being damage to the cell and

the

second, if

you like, the promotion of that damaae to

give rise to a cancer which may become clinically

evident many years later.

...

Mr. Meadows:

I would ask you to explain to the Tribunal what you

mean by an insult to

a cell?

Professor Tattersall:

The simplefit might be a physical relationship. Let us

say radiation. If

was to have a cell here and to

shine x-rays at it, that would

be an insult to that

cell.

can

be chemical.

might

even,

under

certain circumstance be viral, or it can be physical: but it is a damaging influence to a single cell. Most of those damaging influences cause the cell to die and

obviousg they are of no further interest. It is

the

ones

which

survive

and

have

the

potential

after

exposure to promoting agents.

The cell behaves differently after that insult but if

you were to ask me

how to define the physical change

could not do that.

I would say that

a behaviour

pattern has been changed and that that must presumably

reflect a physical event in itself.

Mr. Meadows

It is true to say that this particular insulted cell

can remain in the body for many years before

actually develops into a cancer and, in

fact, may never

develop into a cancer?

Professor Tattersall:

. .

13.

The best data perhaps, is

35 years.

I relate

Hiroshima. That isthe only way it can	be	precisely
timed .
...

Mr.

Meadows :

Would you agree that there is not just one cause for

any particular cancer?

Professor Tattersall:

I	think there probably are one or two cancers where

there is just one cause but,

in general, I

think it

would be fair to say

that

cancers are thouuht to be

multifactorial in their causation.

...

Mr. Meadows

What do you mean by promotion?

Professor Tattersall:

Scientifically what I mean is that the damaged cell

rendered a cancer cell which can be identified by its

chansed behavioural characteristics and that that does

not happen without the operation of	a promoting agent
in an experimental circumstance.

Mr. Meadows

Is	it known at what stage this promotion occurs in

relation to the actual carcinoma?

Professor Tattersall:

A cancer cell will not develop if the promoting agent

is applied before the cell is insulted, so you have to

have the sequence

insulted cell, damaged cell,

followed by the promotlng agent."

Evidence given in m,

supra, by Dr. Donald Metcalf,

Head of Cancer Research at the Walter and Eliza Hall Institute of also relied on by the respondent. He said:

"There is

a period during which a series of abnormal

changes take place which leads eventually to the

consequence of the first truly cancerous cell.

This

referred

the

pre-cancerous

pre-neoplastic period and then there is

a second

period during which that first cell proliferates

and eventually forms that large mass

of cells that

is then detected clinically.

The

exact length of

the two periods is not known for most human cancers

but it is known in special circumstances where some

initiating

cause

was

known.

ueneralisation.

therefore, which is true for many cancers is that

the total lenuth of the development period before

the

disease

becomes

apparent

clinically

surprisingly long, commonly in the ranqe of twenty

to forty years and almost invariably symptomless in

that it is not aware to the patient-to-be that they

are, in fact, developing a disease."

It was submitted on behalf of the Commission that the

Tribunal erred in law in that no evidence was adduced in support

of the hypothesis that death arose out of or was attributable to

war service. Alternatively, it

~7as submitted that the Tribunal

erred in law by failing to take into account relevant evidence.

It was said that the Tribunal proceeded not upon a proper

consideration of medical evidence but by holding

in effect, that

if the cause of the disease is unknown and if it cannot be

positlvely

proved

that

the

disease

arose

out

of or

was

attributable ta, war service, the claim must be granted.

In my opinion, the present case is similar in principle

Bvrne's

Case,

supra.

other

words,

the

matter

was

essentially for the Tribunal

as a

tribunal of fact.

opinion, the

hypothesis advanced by the expert witnesses relied

on by the respondent should not be dismissed

fanciful or as

I . .

15.

not

a real possibility. It follows,

my opinion, th+t the

decision of the Tribunal was correct in

law.

The reasoning of the Tribunal rejected

arqument by

the Commission that:

"..where there is no

insufficient evidence to

support as a real possibility that war service' was

implicated in the onset

of a disease the Commission

has discharged the onerous burden uiven to it under

the provisions of the Act."

The	meaning of this passage is not entirely clear.

Immediately before this, the Tribunal correctly stated the issue

in the claim and it may be that this passage is not entirely

consistent with the way in which the Tribunal perceived its task.

Nonetheless, in my opinion, if the reasons of the Tribunal are

read as a whole. the impression is given that, in the end, the

Tribunal is endeavouring to apply the test laid down for present

purposes in the authorities. I do not think that, in

the passage

cited, the Tribunal was intending to depart

from

that test,

although the passage could have been more clearly expressed.

I am	of the opinion that the reasons, read as a whole,

correctly state the test to be applied in these matters and, as has been said, the question ultimately becomes one of fact. In

these circumstances, for the reasons given in Bvrnes' Case, the

Court should not interfere. The appeal should be dismissed.

16.

The respondent has cross-appealed by seekinu

an order

varyinu part of the decision of the Tribunal

so far as it was

expressed to operate with effect from

8 February 1981.

The

question of law raised in the cross-appeal is whether,

proper construction of s.l07VZG(l)(d) of the

Act, "the relevant

claim for pension" is the claim for a pension lodged by

the

respondent on

19 February 1976 or the recluest on 8 May 1981 by

the respondent to the Commission

to review under s.31 of the Act

the decision to refuse her claim for a pension. The respondent seeks an order that the decision of the Trlbunal be varied so

that it is expressed

operate with effect from

13 December

1975. The grounds of the cross-appeal are that the Tribunal

erred in law in holding that the request by the respondent to the

Commission to review under 5.31

the previous refusal of a pension

was "the relevant claim for pension" within the meanina of

s.l07VZG(l) (d);

and that the Tribunal should have found that

"the relevant claim for pension" was the claim lodged by the

respondent

on 19

February 1976

and expressed its decision to

operate from the date of the late member's death,

13 December

1975, such date being the date upon

which the Commonwealth of

Australia's liability to pay

pension to the respondent arose

and within the three months preceding the lodgment of	the
respondent's claim.

Section 24(1)

provides that upon the death of a member

of the

forces, the Commonwealth shall. subject to the

Act, be

liable to pay

to the members or his dependants,

or both, as the

17.

case may be, pensions in accordance with Division I of Part 111. provlded that (inter alia), a claim for payment of a pension in accordance with Division I is made, in the case of death, by a dependant not more than six months after the date of death.

There are some exceptions. The proviso does not apply where the prescribed period v7as owing to some reason which, in the opinion

of the Commission, is adequate. By

s.24AA.

a claim for pension

shall be in accordance with

a prescribed form. This provision

was inserted in 1977: prior to this. there were no formal

requirements for the making of

a claim. In the present case,

the

claim was made by the letter dated

February 1976,

supra.

Section 101(1) is similar in its terms to

s.24(1).

Section 31(1)

provides that whenever it appears to the

Commission that. under the Act. sufficient reason exists for

reviewing any assessment, decision or

determination in relation

to pension, the Commission may review the assessment, declsion or

determination.

By s.31(2),

whenever, in pursuance of

6 . 3 1 ( 2 ) ,

the Commission reviews an assessment, decision or determination

and varies or, revokes the assessment, decision or determination,

the Commission shall specify the date from

which the variation or

revocation shall operate. By s.l07VZG(l)(a) and (d).

a decision

of the Tribunal on

review pursuant to an application under

s.lO7VC shall not be expressed to operate from

date earller

than three months before the date on which the "relevant claim"

for pension was lodged.

18.

In Bannister v See (1982) 45 A.L.R

146, a Full Court

this Court considered the meaning of "review" and "sufficient

reason" in s.31(

1) and of "decision refusing

a claim" in

S. 107VC.

The question was whether, on the facts

of the case,

an appeal lay

to the Repatriation Review Tribunal after the Commission

had

reconsidered a claim. The decision itself is not in point here.

Although not an essential part of his reasons, Woodward

J. (with

whom Fox and Franki JJ. agreed) expressed the view (at p.151) that the application there purportedly made under ss.31 andlor

107VL(1) of the Act

was, in substance,

a fresh application.

In my opinion, it does not necessarily follow from this

conclusion that the "relevant claim" for pension for the purposes

of s.l07VZG(l)(d) is the request for review under s.31(1): what

is the "relevant" claim in any particular case is

matter of

characterisation, to be judged in the light

of the circumstances

of the particular case. It is possible to imaqine

a case where

it is proper to treat the request for review under s.31(1) as the

"relevant" claim for the purposes of s.l07VZG(l)(d). However, in

its terms, s.l07VZG(l)(d) contemplates the possibility that

may be necessary to choose between	a number of claims in order to
select the "relevant one".

In the present case,

a claim was made pursuant to 65.24

and 101 in February 1976. The claim was

based on grounds which

are still pressed and have been pressed since the claim was first

made.

The claim has not been amended in any respect. It has

19.

been rejected from time to time. Decisions have been made

refusing to

reconsider those rejections. Since the application

was first lodged, the Act has been significantly amended in terms

of the onus of proof,

Law's Case, (supra.) shows. Given that

history and given the view expressed in Bannister's Case,

(supra.) (at p.1511,	the	question	remains:	what	is	the
"relevant" claim?

In my opinion, in the absence of any amendment of the

claim, the "relevant" claim here is the application lodged in the

form of the letter dated 19 February

1976.

If the request for

review under

s.31(1)

had been based upon grounds different to

those intitially relied upon

so as to constitute, in substance,

different claim, the position may well have been different.

Further, I do not think that any amendment to the onus

of proof

provision in the meantime

any way alters the substance of the

claim itself.

It is still the same claim.

In	the present case, the liability to pay pension

springs from the provisions of ss.24 and 101. The claim, said to arise from death caused by cancer attributable to war service,

has been made since February

1976 and has been persisted in since

that

date.

my opinion, it is the "relevant" claim. The

cross-appeal should be allowed accordingly.

I certify that this and the 18 preceding

pages are a true copy of the reasons for

judgment herein

of The Honourable

Mr Justice Beaumont.

Dated I? de/pk.d-w I9%3

[1983] FCA 240

19 Sep 1983