Repatriation Commission v Nation, L

[1995] FCA 355

CATCHWORDS

DEFENCE AND WAR - Veterans' entitlements - disability pension - construction of order of remitter - extent of Administrative Appeals Tribunal's powers when hearing and determining a matter remitted to it by the Court - whether it was appropriate that the Court determine whether the veteran was entitled to a pension at a special rate - application of estoppel doctrine to the Tribunal

JUDGMENTS AND ORDERS - Construction of order of remitter - extent of Tribunal's powers when hearing and determining a matter remitted to it by the Court

Veterans' Entitlements Act 1986 s18
Administrative Appeals Tribunal Act 1975 s44

Gordon v. Gonda [1955] 1 All ER 762 - cons
ICI Australia Operations Pty Ltd v. Trade Practices Commission (1992) 38 FCR 248
Australian Consolidated Press Ltd v. Morgan (1965) 112 CLR 483 - cons
McNair Anderson Associates Pty Ltd v. Hinch (1985) VR 309 - cons
Kwikspan Purlin System Pty Ltd v. Federal Commissioner of Taxation (1986) 2 ATC 4602 - cons
Australian Energy Limited v. Lennard Oil N.L. (No. 2) (1988) 2 Qd R 230 - cons
Sharpe v. Goodhew, Drummond J., 11 December 1992, unreported - cons
Australian Securities Commission v. Skase, Drummond J., 13 January 1993, unreported - cons
Codelfa Construction Pty Ltd v. State Rail Authority of N.S.W. (1982) 149 CLR 337 - appl
The Commonwealth v. Verwayen (1990) 170 CLR 394 - cons
Walton v. Gardiner (1993) 177 CLR 378 - cons
Port of Melbourne Authority v. Anshun Proprietary (1981) 147 CLR 589 - cons
Lowerson v. Repatriation Commission (1994) 50 FCR 252 - appl

REPATRIATION COMMISSION v LIONEL NATION

No. TG 25 of 1994

BLACK C.J., JENKINSON AND BEAUMONT JJ.

SYDNEY

2 JUNE 1995

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
TASMANIA DISTRICT REGISTRY        )    No. TG 25 of 1994
  )
GENERAL DIVISION                  )

ON APPEAL FROM A JUDGE OF THE
                FEDERAL COURT OF AUSTRALIA

BETWEEN:REPATRIATION COMMISSION

Appellant              

AND:LIONEL NATION

Respondent

CORAM:   BLACK C.J., JENKINSON AND BEAUMONT JJ.

DATE:    2 JUNE 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.Order 3 made by Northrop J. be varied to read as follows:

"Remit the matter to the Repatriation Commission to determine de novo the rate of pension to be paid to the applicant and the date from which that pension is to be paid."

2.The appeal otherwise is dismissed, with costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA    )
TASMANIA DISTRICT REGISTRY          )    No. TG25 of 1994
GENERAL DIVISION  )

On Appeal from a Judge of the Federal Court of Australia

BETWEEN:     REPATRIATION COMMISSION

Appellant

AND:     LIONEL NATION

Respondent

CORAM:     Black C.J., Jenkinson and Beaumont JJ.

PLACE:     Hobart, judgment delivered in Sydney

DATE:      2 June 1995    

REASONS FOR JUDGMENT      

BLACK CJ

I have had the advantage of reading the reasons for judgment prepared by Beaumont J.  I agree that the appeal should be dismissed for the reasons Beaumont J gives and I agree with the orders he proposes.

I certify that this page is a true copy of the Reasons for Judgment of the Honourable Chief Justice Black.

Associate

Dated:  2 June 1995

IN THE FEDERAL COURT OF AUSTRALIA    )
TASMANIA DISTRICT REGISTRY          )    No. TG25 of 1994
GENERAL DIVISION  )

On Appeal from a Judge of the Federal Court of Australia

BETWEEN:     REPATRIATION COMMISSION

Appellant

AND:     LIONEL NATION

Respondent

CORAM:     Black C.J., Jenkinson and Beaumont JJ.

PLACE:     Hobart, judgment delivered in Sydney

DATE:      2 June 1995    

REASONS FOR JUDGMENT      

JENKINSON J.

I agree in the judgment of Beaumont J.

I certify that this page is a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

Associate

Dated:   2 June 1995

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
TASMANIA DISTRICT REGISTRY        )    No. TG 25 of 1994
  )
GENERAL DIVISION                  )

ON APPEAL FROM A JUDGE OF THE
                FEDERAL COURT OF AUSTRALIA

BETWEEN:REPATRIATION COMMISSION

Appellant

AND:LIONEL NATION

Respondent

CORAM:   BLACK C.J., JENKINSON AND BEAUMONT JJ.

DATE:    2 JUNE 1995

REASONS FOR JUDGMENT

BEAUMONT J.

INTRODUCTION

This is an appeal by the Repatriation Commission ("the Commission") from orders made by a Judge of the Court (Northrop J.) which included (1) an order setting aside a decision of the Administrative Appeals Tribunal ("the Tribunal") which had affirmed the decision of the Commission refusing the respondent's claim for a pension in respect of a personality disorder; and (2) a declaratory order that "the [respondent's] obsessive compulsive neurosis is a war-caused disease for the purposes of s.13 of the Veterans' Entitlement Act 1986 (`the Veterans' Act')."

In order to understand the context in which these orders were made, it will be necessary to refer to the history of the dispute.

THE HISTORY OF THE DISPUTE
         The respondent, who was born on 11 April 1927, is a "veteran" within the meaning of the Act.  He enlisted in the Australian Army on 18 July 1945.  He was engaged on "operational service" outside Australia for the purposes of the statute, including service in Japan and Korea, between 18 July 1945 and 5 December 1952.  In this period, he was hospitalised in Japan for five days (in June 1948) with tonsillitis, and for a further five days (in December 1950), with laryngitis and rhinitis.  On each occasion, he had been suffering from a cold for some days before admission to hospital.  In August 1982, the respondent underwent surgery on his nose (a bilateral intranasal antrostomy) in an attempt to cure a condition of bilateral maxillary sinusitis.

(a)  Application for pension in 1982
           In February 1983, the respondent claimed a pension under the Repatriation Act 1920 in respect of his nasal condition. In September 1983, a Repatriation Board determined that the bilateral maxillary sinusitis was related to his service and allowed the claim for pension under s.107C of that Act, at 100 per cent of the general rate, with effect from 18 November 1982. This determination under that statute is still

in force, and by virtue of the provisions of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986, the disease is deemed to be a war-caused disease under the Veterans' Act.

(b)  Application for a further pension (in February 1988)
         The respondent then made a claim for a further pension under the Veterans' Act on the ground that he was totally and permanently incapacitated, claiming to have suffered an anxiety neurosis as a war-related disability as a result of post-operative problems occurring after his operation in 1982.

(c)  Legislative scheme
         Before continuing the history of the dispute, reference should be made to the scheme of the applicable legislation, which relevantly, is as follows:

By s.13(1)(b) of the Veterans'Entitlements Act, where a veteran has become incapacitated from a war-caused disease, the Commonwealth is, subject to the Act, liable to pay a pension to the veteran in accordance with the Act. By s.9(1), a disease contracted by a veteran shall be taken to be a war-caused disease if (a) it resulted from an occurrence that happened while the veteran was rendering operational service; or (b) it arose out of, or was attributable to, the veteran's service. By s.14, a veteran may make a claim for a pension as there provided. By s.17, the Secretary shall cause an investigation to be made into the matter to which the claim relates. By s.18(1), it is the duty of the Commission, in considering a claim, to satisfy itself with respect to, or to determine, all matters relevant to the determination of the claim. By s.19(1), the Commission (a) shall consider all matters that, in its opinion, are relevant and (b) shall determine the claim as provided by s.19(3). By s.19(3), the Commission shall first determine whether the incapacity is from a war-caused disease. By s.19(7) it is provided, in effect, that where the Commission (a) determined that a disease was war-caused and (b) is also satisfied that a determination is in force that the veteran has contracted another war-caused disease, the Commission shall not grant a separate pension but, where the claimant is in receipt of a pension, shall re-assess its rate.

The standard of proof is dealt with by s.120(1) and (3) as follows:

"120. (1)Where a claim ... for a pension in respect of the incapacity from ... disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine that the ... disease was a war-caused disease ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

...

(3)In applying subsection (1) ... in respect of the incapacity of a person from ... disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

...

(b)that the disease was a war-caused disease ...

...

... 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 ... disease ... with the circumstances of the ... service ... ."

(d)Refusal by the Commission (in December 1988) of the claim for further pension

The Commission then determined that the personality disorder was not war-caused within s.9 and refused the claim.

(e)Review by Veteran's Review Board ("the Board") (in May 1991)

The  respondent applied to the Board for review of the Commission's decision pursuant to s.135 of the Veteran's Act.

(By s.139(1) of the Act, the Board shall have regard to the evidence that was before the Commission and to any further relevant evidence.  By s.139(2), it is the duty of the Board to satisfy itself with respect to, or to determine, all matters relevant to the review.)

The Board affirmed the Commission's decision.

(f)First review by the Tribunal (in March 1993) ("the first Tribunal decision")

The respondent applied to the Tribunal for review of the Board's decision pursuant to s.175 of the Veteran's Act. 

The Tribunal affirmed the Board's decision.

(g)First appeal to the Court (in September 1993)

The respondent appealed to the Court from the Tribunal's decision under s.44 of the Administrative Appeals Tribunal Act 1975. The appeal was allowed. It was ordered that the Tribunal's decision be set aside and that the matter be remitted to the Tribunal to be heard and determined according to law after admitting such further evidence as it considered appropriate (see Nation v Repatriation Commission (1993) 18 AAR 273).

(h)Second review by the Tribunal (in June 1994) ("the second Tribunal decision")

On the remitter, the Tribunal again affirmed the Commission's decision.

(i)Second appeal to the Court (in December 1994)

The respondent again appealed successfully to the Court.  As has been noted, Northrop J. ordered that the Tribunal's second decision be set aside and made the declaratory order already mentioned.  His Honour further ordered that the matter be remitted to the Commission to determine the rate of the pension.  These are the orders the subject of this appeal.

In order to understand the contentions of the parties on the appeal, it will be necessary to refer to the reasoning of the Tribunal in its second decision and to the Court's reasoning in both of its judgments.

REASONING OF THE COURT IN ITS FIRST JUDGMENT

As has been noted, the appeal was allowed. Northrop J. said (at 275) that it having been accepted that the nasal operation performed on the respondent was a result of a war-caused disease, the issue was whether the obsessive compulsive neurosis resulted from that operation.  For that reason, the normal type of material placed before the Commission in cases of this kind was not present.  The material was limited to the chain of causation from the nasal operation to the existing disease of obsessive compulsive neurosis, an obsession relating to cleanliness.

After considering the medical evidence before the Tribunal and, in the light of Bushell v Repatriation Commission (1992) 175 CLR 408, the process of reasoning of the Tribunal, Northrop J. said (at 282-3):

"Nowhere did the Tribunal say expressly that it was satisfied beyond reasonable doubt that it could not accept the facts that the ritualistic symptoms had first manifested themselves within a reasonable time after the nasal operation because of the unreliability of the evidence of the applicant.  That was a finding which, on the evidence, was open to the Tribunal.  The Tribunal said:  'For reasons we have explained we cannot accept as true the facts upon which Dr Burgess opinion depends.'

The Tribunal did not say that it was so satisfied beyond reasonable doubt.

Of more importance, however, the Tribunal may have been misled by the stated concession of counsel then appearing for the applicant 'that if the Tribunal was satisfied beyond reasonable doubt that the applicant had no ritualistic symptoms at all between 1983 and 1985 his claim must fail'.  First, the reference to 1985 might have been meant to be 1988 when the applicant first reported the ritualistic symptoms to Mrs Laver.  In any event, on the appeal, counsel for the applicant contended that this concession should not have been made. ...

As a result of the concession, in my opinion wrongly made, the Tribunal, in its reasons, made no reference to and did not consider the evidence of Dr Burgess that, even if the ritualistic symptoms did not appear until as late as 1988, nevertheless he remained of the opinion that there was a causal connection between the nose operation and the disease."

REASONING IN THE SECOND TRIBUNAL DECISION

As has been seen, on remitter from the Court in its first judgment, the Tribunal again affirmed the Commission's decision.

The learned Deputy President, Mr. A.M. Blow, noted the respondent's case was that the disability which he described as 'anxiety neurosis' was an obsessive compulsive neurosis which, within the meaning of s.9(1)(a) of the Act, resulted from an occurrence that happened while he was rendering operational service in that the respondent's war-caused bilateral maxillary sinusitis so resulted and necessitated a nasal operation in August 1982 which was a cause of his obsessive compulsive neurosis.

After referring to the respondent's evidence and to the expert medical opinions given to the Tribunal, the Deputy President said:

"After consideration of the whole of the material before the Tribunal, I am of the opinion that that material raises a reasonable hypothesis connecting the applicant's obsessive compulsive disorder or neurosis with his nasal operation in 1982.  According to Dr. Burgess the trigger for such a condition is often something to do with germs, illness, operations or surgery.  All of the applicant's ritualistic behaviour appears to be concerned with health issues.  This behaviour commenced shortly after his operation and the traumatic post-operative experiences I have referred to. The nasal operation was not the sole cause of the onset of the obsessive compulsive disorder or neurosis, since the pre-existing psychiatric condition no doubt played some part, but I find that it was a substantial contributing cause, and that the obsessive compulsive condition is, in that sense, attributable to it.  I will refer to the relevant legal considerations in detail later in these reasons.

It is therefore necessary to consider whether the respondent is bound by the determination by a Repatriation Board in 1983 to the effect that the applicant's bilateral maxillary sinusitis was war-caused and, if the respondent is not, to consider whether that condition was war-caused."

Mr. Blow went on to conclude that where the Tribunal exercises its jurisdiction under s.175 of the Veterans' Act "there is no limitation or restriction as to what it might do on such a review".  Moreover, he said, no issue estoppel arose as a result of anything decided by the Tribunal, although a decision of the Tribunal, or the Commission, could give rise to a cause of action estoppel.  The Deputy President continued:

"In the proceedings initiated by his claim of 18 February 1988 in respect of what he called 'anxiety neurosis', he has not sought the same relief as he was seeking in 1983.  He has not sought relief based on the same cause of action as that in 1983, since his present claim relates not to his sinus condition but one or more psychiatric conditions.  I therefore conclude that there is no scope for the operation of cause of action estoppel on the facts of this case.

I therefore hold that, as a matter of law, it is open to me to determine whether or not the applicant's bilateral maxillary sinusitis was in fact war-caused, for the purpose of determining whether any psychiatric condition relevant to his claim in respect of 'anxiety neurosis' is war-caused.  That is not to say that I have any jurisdiction to review the decision made in his favour by the Repatriation Board in 1983."

After reviewing the evidence, Mr. Blow said:

"Viewing the relevant medical evidence as favourably to the applicant as I can, the most that can be said is that there is a possibility that his medical condition in December 1950 played some very minimal part in the development of sinusitis decades later.

It is necessary to consider whether the applicant's sinusitis must be taken to be war-caused pursuant to s.9 of the Act..."

In affirming the decision, the Deputy President went on to say:

"There is no evidence that anything that the applicant suffered from in December 1950 arose out of, or was attributable to, his war service in Japan at that time.  It would not seem that the mere fact of service in Japan would expose a soldier to any special risk of catching a cold.  The Full Court of the Federal Court of Australia pointed out in Law ... that a contributing cause that is neither the sole cause nor the dominant cause is sufficient to show 'attributability'.  However I take the view that applicant's cold or rhinitis in December 1950 played a so minimal a part, if any, in the causation of his sinusitis as not to amount to a contributing factor at all.  De minimis non curat lex.

Accordingly, after the consideration of the whole of the material before the Tribunal, I am of the opinion that that material does not raise a reasonable hypothesis connecting the applicant's bilateral maxillary sinusitis, nor any 'disease' referred to in his claim in respect of 'anxiety neurosis', with the circumstances of the particular service rendered by him.

Pursuant to s.120(3)(b) of the Act, I am therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that any such disease was a war-caused disease."

REASONING IN THE JUDGMENT NOW APPEALED

Northrop J. noted that in the Tribunal's first decision, it was stated that -

"It was common ground that the circumstances of the particular service of the applicant had given rise to sinus problems which had necessitated a nasal operation thirty years or so later.  It was agreed that bilateral maxillary sinusitis was properly recognized as a war-caused disease about a year after the operation.  It was also agreed that the applicant suffered an obsessive compulsive neurosis."

Turning to the second Tribunal decision, his Honour said:

"The methodology adopted by the Tribunal may not have been consistent with the principles enuciated by the High Court in Bushell ... and Byrnes v. Repatriation Commission (1993) 177 CLR 564, but there is no doubt that the Tribunal made findings in favour of the applicant. On these findings, it would have been expected that the Tribunal would have determined that the decision of the Board be set aside and that the applicant was entitled to the special rate of pension under (s) 24 ... . The Tribunal did not do this. It affirmed the decision under review namely the decision of the ... Board disallowing the claim by the applicant for the special rate under (s) 24. Presumably the applicant remains entitled to his pension made on 9 September 1983."

Northrop J. then addressed the first issue in the appeal, the nature of the Tribunal's powers when hearing a remitted matter.  His Honour said:

"The order remitted 'the matter' to the Tribunal.  The word 'matter' means all things in dispute between the parties.  In the Federal Court, the things in dispute were limited to the issue of causation from the nasal operation to the existing disease of obsessive compulsory neurosis.  That was the matter remitted to the Tribunal to be heard and determined.  Nothing else was remitted.  To use the terminology of Gray J, [in Blackman's Case (1993) 43 FCR 449 at 455-6] the order of the Court limited the ambit of the
issues with which the Tribunal was to deal with upon the matter being remitted to the Tribunal."

After considering the reasoning in Repatriation Commission v O'Brien (1985) 155 CLR 422, on the question whether there was any jurisdictional limit to the Tribunal's examination of the facts underlying an earlier determination, Northrop J. said:

"That authority is not directly applicable to the facts of the present case.  Here, the claim by the applicant in February 1988 was for a special rate of pension under (s) 24 ... .  At all times, the only issue raised by the claim before the Commission, the ... Board, the first review before the Tribunal and the ... Court related to the 'chain of causation from the nasal operation to the existing disease of obsessive compulsory neurosis'.  That was the 'matter' in issue.  I have concluded that that was the 'matter' remitted to the Tribunal for hearing and determination.  By analogy, the views expressed in O'Brien, as set out, support the view that that was the only 'matter' to be heard and determined by the Tribunal and that accordingly the Tribunal, on the remittal, could not consider other matters and inparticular the matter of whether the bilateral maxillary sinusitis was a war caused disease.

This view appears to be consistent with the views of Lockhart and Beazley JJ in Langley."

Turning to the second issue, relating to the application of s.120 to the question whether the sinuitis was a war-caused disease, his Honour said:

"The methodology to be adopted in cases of this kind is illustrated in Byrnes at 571-2.  That methodology should be followed.  It was not followed by the Tribunal."

Northrop J. went on to say:

"What is clear is that in applying subsection 120(3), proof of facts is not in issue.  The methodology
adopted by the Tribunal led to error in applying subsection 120(3).  As I have said earlier, there was ample material of credible nature to give rise to the requisite reasonable hypothesis.  The Tribunal, because of this error, did not consider the application of subsection 120(1)."

His Honour next considered the form of relief which should be granted.   He said:

"On the basis of the findings on the first issue and the subsequent findings of the Tribunal on that issue, the applicant is entitled to the special rate of pension under [s] 24... .  The order sought by counsel for the applicant is that the applicant's obsessive compulsive neurosis is a war-caused disease for the  purposes of [s] 13 ... but such an order leaves open the rate of pension to be paid.

Normally the Court does not make substantive orders in appeals in Administrative Appeals Tribunal Act.  In the absence of the second issue, only one answer could be given, that contended for by counsel for the applicant.  The Court has expressed the view that the second issue should not have been considered by the Tribunal.  Accordingly, the order sought should be made.  The court is fortified in doing this by the fact that the applicant has succeeded on the second issue.  Further, regard sbould be had to the history of the application since it was made in February 1988.  Almost seven years later, that application has not been fully determined."

THE COMMISSION'S GROUNDS OF APPEAL

The Commission contends that his Honour should have held that (i) the matter remitted to the Tribunal was the question whether the respondent's neurosis was a war-caused disease; (ii) in deciding that question, the Tribunal stood in the shoes of the original decision-maker, the Repatriation Commission; (iii)  the Tribunal had the responsibility of deciding all matters necessary to determine that question;  (iv)  in deciding those matters, the Tribunal was required to
decide for itself all matters of fact relevant to that question; and (v)  in deciding those matters, the Tribunal was not confined to considering whether the respondent's nasal operation caused or contributed to his obsessive compulsory neurosis.

It is further contended by the Commission that his Honour should not have held that the tribunal failed to apply the standard of proof prescribed by s.120.   

It is then said for the Commission that the primary Judge erred in the adjectival area (i) by making substantive orders on an appeal on a question of law from the Tribunal's decision; (ii) by holding that the respondent was entitled to the special rate of pension under s.24; and (iii) by declaring that the respondent's neurosis was a war-caused disease for the purposes of s.13.

CONCLUSIONS ON THE APPEAL
     It is convenient to consider the issues arising in the appeal in turn.

(1)Did the Tribunal err in law by entering upon a consideration of the sinusitis question?

As has been seen, the orders made by the court in its first judgment included an order that "the matter" be remitted to the Tribunal to be heard and determined according to law after admitting such further evidence as it considered
appropriate.

The source of the Court's jurisdiction in this area is s.44 of the Administrative Appeals Tribunal Act. By s.44(1), a party to a proceeding before the Tribunal may appeal to the Court, on a question of law, from any decision of the Tribunal in that proceeding. By s.44(3), the Court has jurisdiction to hear and determine such appeals. By s.44(4), the Court shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. By s.44(5), without limiting the generality of s.44(5), the orders that may be made by the Court include an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

Although the Court's order referred to the "matter" rather than the "case", it appears that an order of the kind provided by s.44(5) was intended. As a matter of power, s.44(4) would, in any event, have authorised an order in the terms of the order made.

The more difficult question is whether, upon its true construction, the order should have been read down, as Northrop J. has now held, so as to have remitted to the Tribunal only that part of the claim as was concerned with the alleged sequela, that is, the question whether the neurosis was war-caused.
     The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury's Laws of England, 4th ed., Vol. 26 at 273).  Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity 
(see Gordon v Gonda [1955] 1 All ER 762 at 765, 768).

A similar approach has been taken in this country.  If, as in the case of "speaking" order (see, e.g., I.C.I. Australia Operations Pty. Ltd. v Trade Practices Commission (1992) 38 FCR 248 at 262) its true meaning is "immediately plain", the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd. v Morgan (1965) 112 CLR 483 per Windeyer J. at 503; McNair Anderson Associates Pty. Ltd. v Hinch [1985] VR 309 at 311-2; cf. Kwikspan Purlin System Pty. Ltd. v Federal Commissioner of Taxation (1986 2 ATC 4602 at 4605; Australian Energy Limited v Lennard Oil N.L. (No. 2) (1988) 2 Qd R 230 at 232; Sharpe v Goodhew, Drummond J., 11 December 1992, unreported, at 10-12;  Australian Securities Commission v Skase, Drummond J., 13 January 1993, unreported, at 16-17).    Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not
admissible to contradict the language of the instrument when it has "a plain meaning" (see Codelfa Construction Pty. Ltd. v State Rail Authority of N.S.W. (1982) 149 CLR 337 per Mason J. at 352).

In my opinion, the language of the order of remitter was susceptible of more than one meaning.  The word "matter" could have meant the whole question being the determination of the respondent's claim for a further pension.  But it could also have meant the specific dispute then agitated before the Court, that is, the sequela issue.  Although, "matter" is sometimes used, in the constitutional sense, to describe the whole of a dispute dealt with by the judicial process, the language of the Veterans' Act indicates that, in other contexts, "matter" can have a narrower meaning. For instance, as has been noted, by s.18(1), it is provided that it is the duty of the Commission, inter alia, to determine all "matters" relevant to the determination. By s.18(2), certain provisions are made where the Board, the Tribunal or a court makes a decision remitting to the Commission "a matter" being the assessment of the rate of the pension, or the fixing of the date from which a decision is to operate.

It follows from the ambiguity of the order of remitter that resort may be had, in aid of its true interpretation, to the surrounding circumstances.  Those circumstances included, of course, the reasons for judgment.  When regard is had to those reasons, it appears clearly that
the meaning to be given to "matter" in the present context is the more restricted one, that is, the sequela question.  That was the only issue tendered for determination by the Court.  There was no issue that the sinusitis was war-caused.

It follows that I agree with Northrop J. that the Tribunal went beyond its jurisdiction in embarking upon the sinusitis issue.

I would add that, even if "matter" were to receive here a broader interpretation, other questions argued in the appeal would require consideration, for instance, whether, by agreeing to confine the issues before the first Tribunal, the Commission should be held to have waived its right to re-agitate the sinusitis question or to be estopped from doing so (cf. The Commonwealth v Verwayen (1990) 170 CLR 394 at 413, 422, 444, 448, 453, 461 and 502). Another possible approach would hold that the circumstances are analogous to an abuse of process if the Commission were to be permitted, unreasonably, to re-agitate an issue, viz., sinusitis, long since treated as settled as a matter of administrative action (see Walton v Gardiner (1993) 177 CLR 378 at 395-6; cf. Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 602). But it is not necessary for me to pursue these questions in the light of the conclusion I have reached on the scope of the remitter.

(2)Did the Tribunal err in law in considering sinusitis?

Although not strictly necessary to do so, Northrop J., as has been seen, considered this question also.  Notwithstanding this, I prefer not to express a view upon it.

(3)Did the primary Judge err in making a declaratory order that the respondent's neurosis was war-caused?

On behalf of the Commission, it is submitted that this was not one of those rare cases that would warrant the Court's entering upon a substantive determination of the matter.

As the Full Court discussed in Lowerson v Repatriation Commission (1994) 50 FCR 252, where, in the present kind of case, there is, apart from the questions of date and rate, really no fact-finding left for the Tribunal to do, it can be appropriate for the Court to make a substantive declaration. It will be recalled that the Tribunal found that the nasal operation was "a substantial contributing cause" to the obsessive compulsive condition. In my opinion, it was open to Northrop J., in the exercise of his judicial discretion, to make the substantive declaration. I am not persuaded that any basis exists for interfering with that judgment.

(4)Did the trial Judge err in holding that the respondent was entitled to a pension at the special rate?

As has been noted, although his Honour made no declaration to this effect but remitted the case for that and another purpose (i.e. date), Northrop J. held, in his reasons,
that the respondent was entitled to a pension at the special rate.

It is common ground that the question of rate was not then before the Court.  Notwithstanding that the orders made do not reflect the opinion expressed by his Honour on the point, as a matter of principle, as well as for practical reasons, the orders of the Court should make it clear that the remitter to determine rate is to be a fresh determination unaffected by the opinion on the point expressed by the Judge.

ORDERS PROPOSED AND COSTS
     I would propose to vary order 3 made at first instance by adding the words "de novo" after the word "determine".  Otherwise, I would dismiss the appeal.  Since the respondent has been substantially successful on the appeal, he should have his costs.

The form of the orders I propose are as follows:

1.   Vary order 3 made at first instance so that it now reads:

"3.Remit the matter to the Repatriation Commission to determine de novo the rate of pension to be paid to the applicant and the date from which that person is to be paid."

2.   Appeal otherwise dismissed, with costs.

I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont.

Associate

Dated:      2 June 1995

Counsel and Solicitors      Mr. P. Hanks with Mr. M. Green

for Appellant:              instructed by Australian Government Solicitors

Counsel and Solicitors      Mr. M. Smith instructed by

for Respondent:                  Vardanega Roberts           

Dates of hearing:           30, 31 March 1995

Date Judgment delivered:     2 June 1995