Repatriation Commission v Smith, M.J

[1987] FCA 432

CATCHWORDS

Veterans' affairs - Disability pension - applicatlon €or special rate - veteran had disabilities accepted as war-caused lncluding periarthritis and spondylolisthesis 1 veteran in effect forced to retire from employment with Hobart Marine Board at age 63 because of war-caused disabilities - s.20 Veterans' Entitlements Act 1986

("the Act") - s.24(l)(c) of the Act in contention - whether

criteria set out In s .24 of the Act to be considered as at date

of application rather than as at date of retirement - whether

eligibility for special rate depends upon exlstence of

continuing economic loss - interpretatlon of s . 1 2 0 ( 4 ) of the Act

(standard of proof) - appropriateness of Trlbunal taking

'official notice' of relevant facts - ss.33(1) (c), 44(1)

Administrative Appeals Tribunal Act 1975.

REPATRIATION COMMISSION V. MAXWELL J. SMITH	t :	,
NO. T5 Of 1987
Northrop, Beaumont and Spender JJ. Sydney

10 August 1987

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IN THE FEDERAL COURT OF AUSTRALIA )

1

TASMANIA D STRICT REGISTRY ) NO. T5 Of 1987

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)

DIVISION GENERAL )

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ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

DEPUTY PRESIDENT R.C. JENNINGS @.C.

BETWEEN :

REPATRIATION COMMISSION

Appllcant

AND :

-

MAXWELL 3. SMITH

Respondent

MINUTES OF ORDER

Court: Northrop, Beaumont and Spender JJ.

Date orders	made:	l0 August 1987
Where made:	Sydney

THE COURT ORDERS:

1. The appeal be allowed with costs.

2. The Tribunal's decision be set aside and the matter remitted to the Tribunal to be heard and decided again with the hearing of further evidence.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA	)
1
TASMANIA DISTRICT REGISTRY	1 T. No. G 5 of 1987
1
GENERAL DIVISION	)

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

MR. R.C. JENNINGS, 0.C.. DEPUTY PRESIDENT

I .

REPATRIATION COMMISSION Applicant

and

"ELL J. SMITH Respondent

COURT: NORTHROP, BEAUMONT AND SPENDER JJ.

DATE : 10 AUGUST 1987

PLACE: SYDNEY

'	b.	.
:	:	.	1

REASONS FOR JUDGMENT

NORTHROP J.

I would make the orders proposed by Beaumont J. and

I concur with his reasons f o r judgment.

9 JAW AssoCitlte

W e d : 10 August 1987

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IN THE FEDERAL COURT OF AUSTRALIA )

)

TASMANIA	D STRICT	REGISTRY	)	NO. T5 Of 1987
1

DIVISION GENERAL )

ON APPEAL FROM THE VETERANS' APPEALS DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

DEPUTY PRESIDENT R.C. JENNIMGS Q.C.

BETWEEN: REPATRIATION COMM SSION

Applicant

- AND : MAXWELL 3. SMITH Respondent

CORAM:	Northrop, Beaumont and Spender JJ.
DATED:	12 August 1987

REASONS FOR JUDGMENT

BEAUMONT 3. The Veterans' Entitlements Act 1986 ("the Act")

makes provision for a number of pensions for veterans and their dependents. We are concerned here with Part I1 of the Act which

deals with pensions other than "service" pensions. So far as

presently material, the general provlsions of Part I1 may be

summarised thus: ( 1 ) Where a veteran has been incapacitated

from a war-caused injury or a war-caused disease, the

Commonwealth is liable to pay a pension to the veteran in

accordance with the Act (s.l3(l)(b),(d)). ( 2 ) A claim for a pension shall be in writing and accompanied by relevant evidence but this requirement is not to be taken to impose any onus of

proof on a claimant (s.14(1),(3),(4)). (3) A veteran In recelpt

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2. !

of a pension may apply for an Increase In the rate of the pension

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on the ground that his	incapacity has increased (s.15). (4) Where	!
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a clalm in accordance with s.14 for a pension is granted (see 1. ,

ss.17, 18 and 19), the Commisslon may approve payment of the

pension from a date not earller	than three months before	the date
on which the clalm was received	(s.ZO(1)).

The rate of pension now claimed is dealt with by

Division 4 of Part I1 of the Act which is entitled "Rates of pensions payable to veterans". This Division provides for three

types of pension - at the general rate, the intermediate rate,

and the specLa1 rate. The general rate is applicable when the

veteran 1s not eligible for pension at the Intermediate or

special rates (s.22(1)). The general rate payable to a veteran

is the rate assessed by the Commission as a rate per fortnight

that constitutes the same percentage of the maximum rate per

fortnight specified in s.22(7) ($137.60, as it was in 1986) as

the percentage determined by the Commission to be his degree of

incapacity from the war-caused injury or dlsease (s.22(2)(3)(4)).

The intermedlate rate is applicable if (a) there is in force In

respect of the veteran a determinatlon under the Act determining

that the degree of incapacity of the veteran from war-caused

injury or war-caused disease, or both, is 100 per centum; (b)

the veteran's incapacity from war-caused injury or war-caused

disease, or both, is, of itself alone, of such a nature as to

render the veteran incapable of unde.rtaking remunerative work

otherwise than on a part-time basis or intermlttently; and (c)

the veteran is, by reason of incapacity from war-caused inlury or

war-caused disease, or both, alone, prevented from continuing to

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3 .

u n d e r t a k e r e m u n e r a t i v e w o r k t h a t t h e v e t e r a n was u n d e r t a k i n g a n d

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is, b y r e a s o n t h e r e o f , s u f f e r l n g a loss o f s a l a r y o r wages, or of

e a r n i n g s o n h i s o r h e r own a c c o u n t , t h a t t h e v e t e r a n w o u l d n o t b e

s u f f e r i n g t h e v i f t e r a n were f r e e f r o m t h a t I n c a p a c i t y

( s . 2 3 ( 1 ) ) .

T h e s p e c i a l r a t e , w i t h w h i c h w e a r e c o n c e r n e d , IS

provided by s.24:

" S p e c i a l r a te of p e n s i o n

24.(1)	T h i s	e c t i o n	a p p l i e s	t o	a	v e t e r a n ,	o t h e r
-

! t h a n a v e t e r a n t o whom s e c t i o n 25 a p p l i e s , i f

t h e r e is i n force i n r e s p e c t o f t h e v e t e r a n a

d e t e r m i n a t i o n u n d e r t h i s A c t d e t e r m i n i n g t h a t

t h e degree of i n c a p a c i t y o f t h e v e t e r a n f r o m

w a r - c a u s e d I n j u r y o r w a r - c a u s e d i s e a s e , or

b o t h , is 100 per cen tum:

v e t e r a n t h e is t o t a l l y p e r m a n e n t l y n d

i n c a p a c i t a t e d , t h a t 1s t o s a y , t h e v e t e r a n ' s

i n c a p a c i t y w f r o m r - c a u s e d i n j u r y o r

w a r - c a u s e d d i s e a s e , or b o t h , i s of s u c h a

n a t u r e a s , of i t s e l f a l o n e , t o r e n d e r t h e

v e t e r a n i n c a p a b l e of u n d e r t a k i n g r e m u n e r a t i v e

work f o r p e r i o d s a g g r e g a t i n g more t h a n 8 h o u r s

p e r week: and

( c ) t h e v e t e r a n is, b y r e a s o n o f i n c a p a c i t y from

t h a t w a r - c a u s e d i n j u r y o r w a r - c a u s e d d i s e a s e ,

o r b o t h , a l o n e , p r e v e n t e d f r o m c o n t i n u i n g t o

u n d e r t a k e r e m u n e r a t i v e w o r k t h a t h e v e t e r a n

was u n d e r t a k i n g a n d i s , by reason t h e r e o f ,

s u f f e r i n g a loss o f s a l a r y o r w a g e s , o r of

e a r n i n g s o n h i s or h e r own a c c o u n t , t h a t t h e

v e t e r a n w o u l d n o t b e s u f f e r i n g i f t h e v e t e r a n

were free o f t h a t i n c a p a c i t y .

L.

( 2 ) F o r t h e purpose o f p a r a g r a p h ( l ) ( c ) -

( a ) a v e t e r a n who 1s i n c a p a c i t a t e d f r o m w a r - c a u s e d

i n j u r y or war-caused dlsease, or b o t h , s h a l l

n o t b e t a k e n t o b e s u f f e r i n g a loss o f sa la ry

o r w a g e s , o r of e a r n i n g s o n h i s o r h e r own

a c c o u n t , b y r e a s o n o f t h a t i n c a p a c i t y i f -

( i ) t h e v e t e r a n h a s c e a s e d t o e n g a g e i n

r e m u n e r a t i v e w o r k f o r r e a s o n s o t h e r t h a n

4 .

his or her incapacity from that war-caused injury or war-caused disease, or both: or

(ii) the veteran is incapacitated, or

prevented, from engaging in remunerative

work for some other reason: and

(b) where a veteran, not being a veteran who has

attained the age of 65 years, who has not been

engaged in remunerative work satlsfies the	I .
Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be

contlnuing so to seek engage to in

remunerative work and that that Incapacity is the substantial cause of his or her inability

to obtain remunerative work in whlch to

engage, the veteran shall be treated as having :

been prevented by reason of that incapacity ' .

from continuing to undertake remunerative	work
that the veteran was undertaking.

(3) This section also applies to a veteran who

has been blinded in both eyes as a result of :. i

war-caused injury or war-caused disease, or both.	L -.
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( 4 ) The rate at which pension is payable to a

veteran to whom this section applies is $364.90 per

fortnight." i

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A veteran's capacity to undertake remunerative work is

dealt wlth by s .28 -

" 2 8 . In determining, for the purposes of

24(l)(b), whether a veteran who is

paragraph ... Incapacitated from war-caused ln~ury or war-caused

disease, or both, is incapable of undertaking

remunerative work, the Commission shall have regard

to the following matters only:

(a)	the vocational, trade and professional skills, quallfications and experience of the veteran:
(b)	the kinds -of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake: and
(c)	the degree to whlch the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced hls or
her capacity to undertake the kinds of

remunerative work referred to in paragraph

(b) ."

5.

The standard of proof 1s dealt with for present purposes

by ~.120(4) -

"(4). . the Commlssion shall, in making

[its] ... determination or decision ..., including the assessment or re-assessment of the rate of a pension

granted under Part 11.. .decide the matter	to 1ts
reasonable satisfaction."

A similar but earlier legislative scheme was considered in three recent Full Court decisions - Banovich v. Repatriation

Commission (1986) 69 A.L.R. 395; Delkou v. Repatriation

Commission (1986) 69 A.L.R. 406; Lucas v. Repatriation

Commlssion (1986)69A.L.R. 415. It is common ground that although

the events now In question took place some years ago, the Act is

applicable in the present case. As has been said, the issue in the present case was the eligibility of the respondent, Mr. Smith, for a special rate of penslon pursuant to s.24 of the Act.

(As was pointed out in Banovich at p.398, there 1s a clear

distinction drawn in the Act between a determination that the

Commonwealth is liable to pay a pension on the ground of

incapacity on the one hand and the rate of any such pension on the other.) To adopt the language used in Banovich, (at p.400),

s.24 speclfies three qualifying criteria. They may be shortly

described as first, receipt of 100 per cent general rate pension,

secondly, total and permanent incapacity and thirdly, economic loss. The Commission has always accepted that the first two of

these crlterla are satisfied here.	Only the third criterion (see
s.24(l)(c)) is in contentlon.

6.

As has been said, the construction of the earlier but

similar legislation was considered in the trilogy of cases

referred to. As an ald to construction, the Court there relled

upon the following observations made by the Acting Minlster for

Veterans' Affalrs in the second reading speech:

"Since 1 9 2 0 , there has been a special rate of

disability pension payable in circumstances where,

because of total and permanent incapaclty resulting from war service, a veteran has been unable to resume or to continue in civil employment. The speclal or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go

back to work and could never hope to support

themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having

enjoyed a full working life after war service, then

retires from work p ssibly with whatever

superannuation or other etirement benefits are

available to the Australian work force. Determining authorities have found the application of the present legislative provisions difficult because the provisions, unchanged since 1 9 2 0 , contain outmoded and

imprecise terms. The am ndments clarify the

eligibility criteria and make it clear that to qualify for a TPI pension a veteran must be eligible for the 100 per cent general rate pension. In addition, the

TPI rate pension can become payable only when a

veteran is totally and permanently disabled by accepted disabillties and is thereby precluded from continuing to engage in remunerative work. If a

person has had the usual span of a working life or has

retired voluntarily or has left employment for reasons

other than accepted disabilities, a TPI pension is not

payable. It would he in only very rare cases that any veteran beyond the normal retirement age could be

I	eliglble for this pension. Special provlsion is made by the Bill to cover veterans who are under 6 5 years
of age, are unemployed and are genuinely seeking to
engage in remunerative work." (see Parliamentary
Debates, House of Representatlves, 17 May 1 9 8 5 at pp.
2645-6 ) .

At all material times, the respondent has been in

receipt of a pension at the general rate. On 17 April 1985 , he

sought an increase to the special rate. On 24 May 1 9 8 5 , the Commission refused hls application. On 5 May 1986, the Veterans'

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Revlew Board affirmed this decision. (The Board, in fact, dealt

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with the matter under earlier legislation but nothing turns on

this for our purposes.) However, on review of this decision by the Administrative Appeals Trlbunal on 7 April 1987, it was directed that the respondent be paid a pension at the special

rate "from the relevant date". The Commission now "appeals" to t

the Court in the exercise of its orlginal jurisdiction under

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s.44(1) of the Admlnistrative Appeals Tribunal Act 1975. The ,.

appeal IS, of course, limited to	a question of law.	I '?	..
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Before the Tribunal, there was no real dispute about the ! '

facts. The respondent is now aged 71 years, having been born on 29 October 1915. He served in the A.I.F. from 1940 to 1946 and during service was a prisoner of war for more than three years. Prior to his retlrement in November 1978, aged 63 years, the

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respondent worked as a plumber. From 1962, he was employed as a

foreman-plumber by the Hobart Marine Board. Prevlously, he had

been self-employed, or otherwise employed, as a plumber.

In his reasons for decislon, the Tribunal made the

following findings:

"Durlng the last few years of hls working life at the

Marine Board his work was mainly supervisory and he was able to forego much physical work such as climbing under wharves.

In November 1978, shortly after his 63rd blrthday, he decided to accept a redundancy package then offered rather than work for the Board as a plumber for

another year, because he did not think he was

physically capable of fulltime work due to the perlarthritls from which he was suffering, especially in the hands.

After his retirement the applicant did some relieving

sheet metal work for about a month. One effect on his

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service p ension of e arning $479.50 during this period

was that-he was required to provide a statement to the Department of Repatriation on 28 February 1979 which included the following:-

'I wish to Inform the Department of Veterans' employment with the Marine Board of Hobart.

I do not Intend to work again.

I understand that my permissible income of $198.08 has been exceeded and there will be a slight overpayment in my servlce penslon and my wife's service pension..."'

It is possible to interpret the Tribunal's findings in a

way which would suggest that the respondent's retirement was in

no way related to hls war-created disabilities. Such an

interpretation would be misleading for it was common ground

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i	before the Tribunal and in this Court that hls retirement was for
that reason. He gave this evidence, which was not challenged, to
the Tribunal:
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"Well, now, how did you come to finish up at the Marine Board? Would you just face Mr. Jennings and explain how that came about?---Well, there was a redundancy packet went around but - which meant that as I had

four plumbers at the time all of a sudden with the

laying off of men they discovered they only wanted one

plumber, which required doing the harder work, the

climbing, the general plumbing so that I found that this was much harder than supervising. I mean I was capable of supervising or doing a little workshop work but to do the general plumbing I would not have been

capable of doing - - -

Yes. And how did it come about - were you offered the redundancy package or were you thinking of retiring because of your war-caused dlsabilities? Just explain

how It all came about, will	you?	This is in 1978, is
not it?---That is right.

November of 1978?---Nell, it was suggested that they were making people redundant, only they would require

the one plumber. I could have had that -job - - -

Yes?--- - - - but as - due to the war-service disabilities and the ability to work and climb around under the wharf and that sort of thing, ~t was beyond

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me.

S o , again, if you had not had your war-caused

disabilities, then you would have been able to

continue?---Yes. I en~oyed my work. I felt I would

have liked to have stayed there."

The Commission has accepted that the disabilities suffered by the respondent which included perlarthritls and

spondylolisthesis, were service related: and that, because of

these disabillties, the respondent's knees, shoulders, wrlsts and neck caused discomfort and that he was unable to bend or lift. As has been said, the Commission has at all times accepted that paras.(a) and (b) of s.24(1) were satisfied here. The issue for determination before the Tribunal and on the appeal is whether, in terms of para.(c) of s.24(1), the respondent "is by reason of incapacity from that war-caused injury or disease, or both,

alone, prevented from undertaking remunerative work that

[he]...was undertaklng and is, by reason thereof, suffering a

loss of salary or wages, or of earnlngs on his.. .own account,

that [he] ... would not be suffering if [he] ... were free of that

Incapacity."

The Tribunal, after referring to the decisions in

Banovich, Delkou and Lucas, said (at pp.7-9 of its reasons):

"I accept the submission that it is notorlous that,

like carpenters, some plumbers do continue their trade

to a limited extent after retirement. Like carpentry

the type of work available for an older man is

restricted. Climbing around roofs is required for active builders and plumbers, but nevertheless there

is ample work in both trades that the average fit 70

year old can handle without difficulty.

Thls Tribunal is required to consider not only the

nature of the occupation of a veteran and whether or

not self-employment is an option readily available,

but also the particular character and skills of the

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particular veteran in order to assess hls prospects of engaging in remunerative work after retirement, if hc were not prevented by war-caused injury or disease.

In this case the lapse of time between retirement and the relevant date was five and half years. The fact that he did comparatively llttle work in that time was due to his dlsabilities. I am satisfied that he is indeed a man who has always enjoyed his work and who would have sought the kind of casual plumbing work that is commonly performed by more elderly plumbers if he did not have those disabilities. It is not necessary that the Tribunal should be satisfied that

he could earn	a	living wage or secure full time
employment....

. ..The problem now posed is the extent to which

notorlous facts may be regarded as sufficient to

engender the reasonable	satisfaction	required	by
s.120(4) ...

It seems to be less important to adduce actual

evidence that X would have employed Y in his trade or profession after his retirement, but for h-is dlsabilitles, than it 1s to examine the real llkelihood that the particular veteran would have been sufficlently motivated to pursue his calling and secure earnings on his own account for more than eight

hours a week. Accordingly the absence of I

corroborative evidence does not in this case preclude

a finding that the applicant was such a person.	. .:
I find that he had sufficient skills and interest in his trade to have preferred the option of offering himself for casual work after he ceased to be employed
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as a plumber. He had sufficient experience of being

self-employed to have found no dlfficulty In finding

work as a plumber (whether supervisory, advisory or in sheet metal) notwithstanding his age and long period as an employee to the Marine Board."

The Commission submits that the Trlbunal made a number

of errors of law in concludlng that the respondent was eligible

for pension at the special rate. It argues that the Trlbunal

looked at the matter as at the date of the respondent's

retirement (i.e. November 1978) whereas, the argument runs, the

question is to be considered as at the date of the application for increase in the rate of pension (i.e. Aprll 1985). Then it is said that the standard of proof contemplated by s.120(4)

11.

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requir ed th at the respondent make out a case "on the balance of

! probabilities". Applying that standard as at Aprll 1985 when the

respondent was 69 , the argument runs, he falled to demonstrate

that, because of his service-related disabilities alone, he was

prevented from continulng to undertake remunerative work that he

was undertaking and is, by reason thereof, suffering a loss of

salary or wages, or of earnings on his own account, that he would

not be suffering if he were free of that incapacity. It is contended that his age (1.e. 69 years) of itself would probably have prevented him from undertaking such work. At any rate, the respondent, it is said, failed to produce any "hard" or concrete evidence that he was prevented from undertaking remunerative work

by reason of his war disabilities alone; in particular, it was

not open to the Tribunal to take "~udicial notice" or	its
equivalent, of so-called "notorious" facts.

In aid of its submission that the Tribunal applled the wrong standard of proof, the Commission relies upon the followlng

comment made (at p.6) by the Tribunal by way of prefatory

observations to the flndlngs already cited:

"20. This Trlbunal is required to decide this

application to its reasonable satisfaction (s.120(4)).

Any veteran seeking a Special Rate pension must face the dlfflculty of producing some material to satisfy the decision maker that but for his incapacity he

would on some prior date have contlnued to undertake

remunerative work.

21. The cases in which this can be shown to be beyond reasonable doubt will be rare Indeed. A state of

reasonable satisfaction is possible however, when it

appears from the nature of the veteran's prlor

employment that there is a real possibility, as distinct from a fanciful one, that remunerative work

for more than elght hours a	week would have been
likely."

J.L.

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It is convenlent, in the first instance, to recall what, relevantly, was declded In Banovich, Delkou and Lucas: (1) The

term "remuneratlve work" refers to the type of work which the

member prevlously undertook: hence the loss of a particular ]ob,

because, for example, of retrenchment for economic reasons, is

immaterlal for Eligibility for pension at our purposes (Banovich at p.402). ( 2 )

the special rate is to be determined	! < '
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as at the earliest available date, viz. three months before the

date of application (s.20(1); Banovich at pp.403-4). In so

holding, the Full Court (Fisher, Beaumont and Nilcox JJ.)

rejected the member's submission that he was entitled to the special rate if he was at any time able to satisfy the statutory criteria, that is to say, the Court rejected the submission that

once the entitlement arose, it was said, it was not lost because,

before the final determination of the claim for that pension, there arose some additional impediment to remunerative work (at p.403). ( 3 ) Although a person 1 s not automatlcally disentitled

to a special rate pension on attaining 65 years, eligibllity will

only be established if, on the facts, the member was prevented

from working by the service-related disabilities alone (Banovich

at p.404; Delkou at pp.413-4; Lucas at pp.421-2).

Because the rejection of the members' claims was upheld

in Banovich, Delkou and Lucas, it was not necessary there to

conslder the separate question of the duration of a pension at

the special rate. It is submitted by the respondent, and the

Tribunal seems to have so assumed, that this penslon, once

granted, 1s payable during the life of the member. In other

words, the submission runs, eligibility for the special rate does

, ' . 1 3 .

not depend upon the existence	of any continuing economlc loss.	I
will return to this later.

I I will deal flrst with the Commission's contention that the Tribunal applied the wrong standard of proof. It wlll be

remembered that s.120(4) provides that the Commission shall

decide the matter "to its reasonable satisfaction". As has been

noted,	the	Tribunal thought that this degree of satisfaction
was -

"possible.. .when It appears from the nature of the veteran's prior employment that there is a real

possibility, as distinct from a fanciful one, that

remunerative work for more than eight hours	a week
would have been likely."

It would seem that the Tribunal had in mind the test

explained by Toohey 3 . in Repatriation Commission v. Bishop

(1983) 48 A.L.R. 461 at p.468 -

"...while there is no onus upon a claimant, there must

be something in the material before the Tribunal pointing to a possibility, real as opposed to

fanciful, of a connection	between	death	and war
service."

But Toohey J. was there concerned with a very different onus of

proof provision as his next remarks indicate (at p.468) -

"The question then is - when in the present case the

Tribunal felt itself obliged to conclude that where

the aetiology of a disease is unknown it could not be

satlsfied beyond reasonable doubt that there was no

relationship between war service and the disease, was

that approach consistent with the provisions of the

Repatriation Act as construed by the courts?"

By contrast, s.120(4 ) speaks in terms of a reasonable

satisfaction. This expression has a settled meaning, at least in

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a curial context. In Briginshaw v. Briginshaw (1938) 60 C.L.R.

336, Dixon J., dealing with the civil standard of persuasion,

said (at p.362):

"...it 1s enough that the affirmative of an allegation

is made out to the reasonable satlsfactlon of the tribunal. But reasonable satlsfaction is not a state

of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikellhood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether

the Issue has been proved to the reasonable

satlsfaction of the tribunal. In such matters

'reasonable satisfaction' should not be produced by

inexact Droofs, indeflnite testimonv, or indirect -

inferences." (Emphasis added)

Similarly, in Rejfek v. McElroy (1965) 112 C.L.R. 517, the F u l l High Court spoke of the civil standard of proof (at	I I-.
p.521):

"No matter how grave the fact which 1s to be found in a

civil case, the mind has only to be reasonably

satisfied.. ." (Emphasis added)

Difficulties have arlsen because of the use of different

I '

expressions In describing the civil standard but, as the learned

authors of Cross on Evidence (Third Australlan Edition - D.M.

Byrne Q.C. and J.D. Heydon) say of this standard (at p.246):

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"In ordinary civil cases it is usually expressed as involving the 'preponderance of probability', the 'balance of probabilities', or the 'preponderance of evidence'. It might be argued that the last of these seems to involve no more than the preponderance of the evidence produced by the proponent of an issue over

that produced by its opponent. It is more common,

however, to regard all of these terms as synonymous,

and as connoting not really relative preponderance

over the evidence of the opponent but satisfaction of

a prescribed level of probability. The possibility of

a contrary flnding does not prevent a finding reached

on that standard from being appropriate. It is not

15.

enough for a plaintiff to fall that his account 'may

not be correct' ."

The foregoing is, of course, dealing with the standard

requlred in court proceedings where the rules of evidence are applicable. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks flt (Administrative Appeals Tribunal Act 1975 s.33(l)(c);

McDonald v. Director-General of Social Security (1984) 1 F.C.R.

354). Yet, whilst the Tribunal was not bound by the technical

evidentiary rules, especially the exclusionary rules, natural

justice may require that it act on material that is relevant and

logically probative (see Mahon v. Air New ZealandLtd. [l9841 A.C.

808; Mlnister for Immigration and Ethnic Affairs v. Pochi (1980)

31 A.L.R. 6 6 6 ; Enld Campbell well and Truly Trled (Ed. by

Campbell and Waller) at pp.70-1, 86; Cross, op. clt. at

I

pp.11-13; Aronson and Franklin, Review of Administrative Action

at p.95; p.174).

Even If the Trlbunal 1s not bound by the traditional

evidentiary principles, s.120(4) constitutes a clear direction to

the Tribunal that it must be reasonably satisfied before it makes

I

any decision. In my opinlon, this could only have been intended to introduce the standard of proof required in civil litigation.

! McDonald's case, supra, dealing with social security leglslation is not authority to the contrary. Rather, it is a case of

s.120(4) introducing the civil standard for our purposes (see

Minister for Health v. Thomson (1985) 60 A.L.R. 701 at p.712;

Campbell, op. cit. at p.53; see Evelyn	Nellie East v.
Repatriation Commission, unreported, 22 July	1987, per Jenkinson,

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16.

Neaves and Wilcox JJ. at p. 32; cf. under the English

legislation, Miller v. Minister of Pensions (1947)	2 All E.R. 372
per Denning J. at p.374).

I

It follows, ln my view, that the Tribunal erred in

adopting the Bishop test. Instead, it should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distlnction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the ather (see Fe Repatriation Commission and Delkou 9

A.L.D. 358; Easton and Repatriation Commission, Administratlve

Appeals Tribunal, unreported, 29 June 1987; Repatriation

Commission and Faulkner,	Administrative	Appeals	Trlbunal,
unreported, 22 May 1987).

The fact that the Trlbunal fell into error in a step in

its process of reasoning does not, of course, mean that its

decision was necessarily wrong and should be set aside. It is

, :

necessary	to	examine the other grounds of the Commisslon's
challenge.

It is convenient first to deal with the submission that the matter should have been considered as at the date of I '

application (April 1985) rather than as at the	date of retirement
(November 1978).

It may be accepted that the period in which retirement occurs will be of more than historical significance for present	-,.
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17.

purposes. It is at that time that the question posed by

s.24(l)(c) will arise, initially at least, for determinatlon. In

the present case, If the question raised by s.24(l)(c) had been decided in November 1978, it would, no doubt, have been resolved in favour of the respondent. At that tlme, he was aged 63 years and it could reasonably have been anticipated that, his war

disabilities apart, he would have remained In employment with the Board until the usual retirement age of 65 years. If at any time after his early retirement by reason of his service disabilities

and prlor to October	1980, the respondent had claimed a pension
at the special rate,	he would have been eligible for it. But,
even if that penslon	had then been granted, it would not, In my

view, have been payable for an indefinite period. It was payable

on a periodic basis and, in my view, it was intended by the legislature to provide some measure of compensation for

continuing economic loss. In other words, a pension at the

special rate was not, in my oplnion, intended to be payable for the whole of the veteran's life or indefinitely. A veteran is

eligible for it only for so long as he is prevented from

undertaking remunerative work by the service disability. The

present tense "is", twice used in s.24(l)(c), relnforces the

evident policy of s.24 to afford some compensation for actual

economic loss. Once a veteran has passed the age where, even if

he had not suffered a war in~ury or disease, he could reasonably

be expected to wlthdraw from remuneratlve work, the rationale for this partlcular pension 1s also withdrawn (cf. McDonald, supra, at pp.360, 365).

i

The respondent did not, however, clalm this pension

7

18. I ,

until April 1985. He is therefore confronted with	the provisions	I<
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I

of s.20(1) limiting payment of this class of pension to a period i

not earlier than three months before that date.	So	much was	i:
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decided In Banovich. It follows, in my view, that even if the

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respondent may have been eliglble for the special penslon if he	; :
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had applled before November 1980 (or, strictly, by as late as

January 1981 to allow for the extra three months provided by s.20(1)), by Aprll 1985 he was no longer able to rely on hls

1. ' ..

assumed employment with the Board until he turned 6 5 : by April

1985, he was already 69.

Yet the inquiry does not end there. In theory at least,

even if the respondent had had to retire at 65 from hls

particular employment, it would still be open to him in

accordance with the reasoning In Banovich, to demonstrate that he

would have thereafter undertaken remunerative activities

elsewhere. This is a question of fact whlch, as has been sald,

must be resolved to the Tribunal's reasonable satisfaction.

t j

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In thls connection, the Commission complains that the

i '

Trlbunal wrongly took "judicial notice" of what It described as

the "notorlous" fact that some plumbers	on	retirement from their	I :
I -

employment at 6 5 , engage in casual plumbing work.

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The general position is well explained	by Professor	I. -'
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Campbell (op-cit. at pp.49-50):	; ..
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"The curial rules of evidence dlfferentiate between

those matters of fact which can only be proved by

evidence and those facts which may be judicially

noticed, i.e. whlch are not required to be proved by evldence. Tribunals which are not bound by the rules

I

- 19.

of evidence are certainly not constrained by the

doctrine of ~ u d i c ~ a l notice and may take 'nfficial'

notice of a much wider range of facts than the facts whlch may be judicially noticed. This facility is especially lmportant to those tribunals whose members lnclude experts in a particular field whose expertlse has a direct bearing on the work of the tribunal, e.g.

medical practitioners in relation to the assessment of claims for compensation or pensions for physical disability or incapacitation. Facts which may be officially noticed by a tribunal, may nonetheless be facts which, if noticed, must be disclosed to

interested parties, for the sake of natural lustice,

in order to give those parties an opportunity to

controvert the facts noticed."

As has been said, the question posed by s.24(1) (c) is

one of hypothetical fact. The Tribunal must attempt an

assessment of what the respondent probably would have done if he

,-

had none of his service disabilities. The starting point is an

examinatlon	the	prospects	of	of employment,	including	I I,
I ,

self-employment, in southern Tasmania in early 1985 for a

healthy 69 year old plumber. It was in the course of such an t :

examination that the Tribunal referred to the "notorious" facts

already mentioned.

It may be accepted that it was open to the Tribunal to find that on retirement from employment at	. -
I -I
i

65 years, some

plumbers seek casual work elsewhere. But it does not, of course,

necessarily follow that the respondent would have done so. Glven

his established pattern of employment with a government or semi-government body, one would expect that it would be unlikely

that the respondent would, at 65 years of age, wish to assume the

risks and expense of setting up a plumbing business of his own. !' , .

But It is unnecessary to express a concluded view on this

question. It 1s apparent that the Tribunal approached the

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20.

determinatlon of this issue of fact upon the footing that the standard of persuaslon was that of "real possibilities" rather

than the probabilitles. It is equally apparent hat its

conclusions were materlally influenced by Its view of the

standard of proof required by the Act. In those circumstances,

the appeal must be allowed wlth costs, the Tribunal's declslon set aside, and the matter remitted to the Tribunal to be heard

and decided again with the hearing of further evidence. The

respondent should have c rtificate a under the Federal r /

Proceedings (Costs) Act 1981.

I certify that this and the preceding nineteen (19 1 pages are a true copy of the

Reasons for Judament herein of

his Honour Mr. Justice Beaumont.	. -
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m*	.,	.,
, .

Dated:	10 August 1987	!
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Counsel and Solicitors Mr. Proctor for applicant lnstructed , . .

for Applicant:	by Australian Government	Solicitor
Counsel and Solicitors	Mr. M. Hodgman Q.C. with

for Respondent:	Mr. Piggott instructed	by
Howard Piggott

Date of Hearing: 21 July 1987

Date Judgment delivered: 10 August 1987

:,

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IN THE FEDERAL, COURT OF AUSTRALIA	)
) 1;
TASMANIA DISTRICT REGISTRY	) T. No. G 5 of 1987
)
GENERAL DIVISION	1

ON APPEAL F R O M THE GENERAL ADMINISTRATIVE DIVISION

OF THE .ADMINISTRATIVE APPEALS TRIBUNAL, CONSTITUTD BY

MR. R.C. JENNINGS. O.C., DEPUTY PRESIDENT

BEXWEEN:

REPATRIATION COMMISSION .,

Applicant

AND:

MAXWELL J. SMITH

Respondent

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COURT:	NORTHROP, BEAUMONT	AND SPENDER JJ.
U :	l0 AUGUST 1987

PLACE: SYDNEY I.,

REASONS FOR JUDGMENT

SPENDER J.

I agree with the reasons of Beaumont J. and with the

orders that he proposes.

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I certify that t f i * - - .-> ' +' r ) 1 .!

page- j5 a t rue	copy	o i the reasons for	t .
l
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judgment herein of His Honour

Mr Justice Spender	.q bhak=.Ji	L
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Assoclate I , I .