Sprod, H.G. v Repatriation Commission

Re: HENRY GUILLAUME SPROD
And: REPATRIATION COMMISSION
No. G 226 of 1982
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.
Lockhart J.
Sheppard J.

CATCHWORDS

Repatriation - claim for pension on ground of incapacity caused by essential hypertension - hypertension said to be result of stress suffered during was service - essential hypertension not arising until 1960's more than 15 years after service completed - evidence that stress may cause fluctuating (labile) hypertension and that this may eventually lead to essential hypertension - whether AAT had correctly applied onus of proof provisions of Repatriation Act 1920 - whether any conclusion open to AAT other than that it could not be satisfied beyond reasonable doubt that there were insufficient grounds for allowing the appeal to it - AAT jurisdiction to disturb earlier acceptance by Commission of psychoneurotic reaction as a cause of incapacity.

Repatriation Act 1920, ss. 47(2) and 107VZZB

HEARING

SYDNEY
#DATE 13:12:1985

ORDER

The appeal be allowed.

The decision of the Administrative Appeals Tribunal dated 2 November 1982 be set aside, the appeal to that Tribunal be allowed, the applicant's essential hypertension be accepted as a condition attributable to his war service and the applicant's claim for a pension be granted.

The respondent pay the applicant's costs of the appeal.

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

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal which refused the claim of the applicant, Henry Guillaume Sprod, to a pension under the Repatriation Act 1920 (Cth) in respect of hypertension. The appeal is limited to questions of law but one issue in the appeal is whether, on the evidence before the Tribunal, it was, as a matter of law, open to the Tribunal to reject Mr Sprod's claim.

The relevant provision with respect to proof was that contained in s.47(2) of the Repatriation Act 1920 (Cth), which in substance provided for a finding in favour of the veteran unless there was satisfaction "beyond reasonable doubt" to the contrary.
There was evidence before the Tribunal that labile or fluctuating hypertension may result from a person's response to a nervous or emotional state including anxiety and that persons with labile hypertension often develop essential or sustained hypertension. There was also evidence from reputable medical practitioners of good standing that, in their opinion, a nervous or anxiety state which contributed to labile hypertension over a period of years may contribute to the ultimate development of essential hypertension in that person. See the report and evidence of Dr M.D. Esler, and the report and evidence of Dr E. Schiller. In his report dated 24 February 1981, Dr Schiller said :

"Clinical experience suggests that blood pressure elevation, in both normal and hypertensive subjects, occurs with anxiety and with increased emotional and physical demands. Investigations have shown a positive relationship between blood pressure variability and scores on measures of emotional lability. . . .

. . . . .

In the light of the evidence, the answer to your question is that stress can cause or contribute to essential hypertension in a susceptible individual."

Dr Esler gave this evidence, inter alia,

"In essence, what I want to suggest to you is . . . that the existence of high blood pressure for the first time in 1968 could not be connected with any stress that he suffered during his war service ending in 1945?---No, I would not conclude that way with such certainty. I would suggest that continuing anxiety, if in fact that was the case and the anxiety existed from service; could possibly trigger and perpetuate hypertension in latter years.

. . . . .

That really is the crux of your opinion about the psychosomatic cause for essential hypertension, is not it. It is the crux of your - I do not use the word offensively - theory as to essential hypertension and a psychosomatic cause for it, that the more often there are transient rises as a result of an anxiety state or some other psychosomatic cause, so the more frequent the transient rises are and the longer the transient rises exist the more likely it is to give rise to essential hypertension?---That is true. My view of the evolution of hypertension is that it comes on over years and blood pressure peaks with stimuli such as this, triggering peaks is a mechanism, yes."

Dr Schiller gave this evidence, inter alia.

"Indeed, you do not contend for any greater proposition than that essential hypertension can be caused where stress, applied over a long period of time, causes a gradual rise in hypertension?--- That is right.

. . . . .

I take it you disagree with Dr Finlayson, do you, that there is no relationship - when he says there is no relationship between psychiatric conditions and hypertension in our present state of knowledge?---No, I would not agree with that."

On the other hand, there was evidence that many reputable medical practitioners hold the contrary view. Thus, in evidence to the Tribunal, Dr D.T. Kelly said :

" . . . There is no evidence that acute stress in humans will produce permanent hypertension or indeed is there any that I am convinced of that stress at any time after which blood pressure has been measured to be normal will result in essential hypertension in later years."

Dr Kelly subsequently limited his reference to "no evidence" by referring to the "difference between an authority and accepted scientific acceptance". Dr D. Brender also said, in a report, that there is "no evidence that transient hypertension occurring in times of stress may later become persistant (sic)".

The opinion held by medical practitioners such as Dr Kelly and Dr Brender may well be correct - save that their use of the term "no evidence" in the scientific rather than the legal sense is not helpful in the repatriation context - but that is not to say that their view disproves beyond reasonable doubt the contrary view held by other reputable medical practitioners. This is so because it is accepted that a nervous or anxiety response may play a part in labile hypertension, because patients with labile hypertension often develop sustained hypertension and because the causes of essential or sustained hypertension have not been definitively established by the medical profession. Indeed, the mechanism which causes the development of essential hypertension is still very much a matter for debate. Necessarily, the view expressed by Dr Esler and Dr Schiller, both eminent practitioners, was not shown to be an irresponsible view.
In these circumstances, in my opinion, the evidence did not and could not establish beyond reasonable doubt that anxiety, nervous tension or stress may not contribute to the development of essential hypertension. As Aickin J, with whom Gibbs CJ, Stephen and Mason JJ agreed, said in Repatriation Commission v Law (1980) 147 CLR 635 at 651,

" . . . Although the medical reports were in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong."

A similar view was taken by both the Federal Court of Australia in O'Brien v Repatriation Commission (1984) 1 FCR 472 and on appeal by the High Court of Australia (1985) 59 ALJR 363. In the Federal Court of Australia, Keely and Fitzgerald JJ said, at p.499 :

"Thus, it may not be established beyond reasonable doubt that incapacity or death is not 'connected with' war service either because there is material which points positively to a cause of the incapacity or death which is or might be so 'connected' (as, for example, in Law's case, Byrne's case and Morcombe's case), or because of some inadequacy in the material to show the absence of a connection."

In the High Court of Australia, Gibbs CJ, Wilson and Dawson JJ cited this passage and went on to say, at p.367 :

" . . . it seems to us to be impossible to lay down the law by saying that if the material in a particular case does not provide some positive inference in favour of the requisite connection between death or incapacity and war service then the Commission or Review Tribunal as the case may be must be satisfied beyond reasonable doubt that there are insufficient grounds to grant the claim. To require the material to satisfy any prescribed test expressed in positive terms in favour of granting a claim tends to undermine the 'heavy burden of disproof' : per Toohey J. in Law v. Repatriation Commission (1980) 29 A.L.R. 64 at 74, citing Edmund Davies J. in Coe v. Minister of Pensions and National Insurance (1967) 1 QB 238 at 242. Of course, it will be seldom that the evidence will be left in such an unsatisfactory state as to fail to yield some indication of the strength or otherwise of a connection between the death or incapacity and the war service. That indication will ordinarily be supplied by evidence as to the cause of the death or incapacity, including the nature of any relevant disease and the circumstances which may give rise to it, all of which may then be examined in the context of the history of the member's war service. But where the accepted material falls short of addressing any or all of those questions - indeed, whatever the state of the evidence may be - at the end of the day there is only one question for the determining body to answer : is it satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim? That is the test for which the Act provides and we do not think it is helpful to attempt to clarify it or improve upon it by suggesting another form of words to express its meaning and effect. Any such attempt is more likely to mislead."

The Administrative Appeals Tribunal did not adopt that approach in the decision under appeal and, in my view, it was in error in this respect.
Likewise, in my opinion, the Tribunal was in error in finding that :

"21. The Applicant did not suffer from psychoneurotic reaction which arose out of or was attributable to war service."

The decision of the High Court of Australia in O'Brien's case, cited above, has established that, having regard to the terms of the reference from the President of the Repatriation Review Tribunal to the President of the Administrative Appeals Tribunal, the Tribunal was bound to accept that Mr Sprod suffered from a nervous condition which was attributable to his war service.

I would observe moreover that, in my opinion, the Tribunal was in error on this point having regard to the evidence that was before it. The evidence before the Tribunal established, at least on the balance of probabilities, that Mr Sprod developed during his war service a condition of anxiety or nervous tension. He was married in January 1944, and, for the first three weeks of his marriage, he suffered from what he called impotence, a condition from which he suffered from time to time in later years and to which tension or anxiety may have contributed. In June 1944, he suffered from dyspepsia, again a condition which may be caused or contributed to by nervous tension or anxiety. He was again treated for dyspepsia in January 1945. On 26 January 1945, it was reported that he was suffering from insomnia, irritability and poor appetite, that he was jittery and had domestic worries. On examination he was found to be an anxious man. A psychiatrist's report of 30 January 1945 included the statement,

"For past two months he has had worries about his wife's health. In June 1944 began to suffer from a 'burning sensation in stomach' and was treated at C.H. at Walgrove (sic) for 6 days. About 3 weeks ago began to sleep poorly and to be irritable - (especially by sudden noises which make his stomach twitch). States he cannot concentrate and that all sorts of ideas come into his head and interfere with his concentration."

On his discharge in 1945, the examining medical officer reported Mr Sprod to be "rather excitable" and the Medical Board reported, "No dyspeptic symptoms at present. Thinks symptoms were due to worry.", and "Rather excitable". The above evidence seems to me to have established, at least on the balance of probabilities, that Mr Sprod did have a condition of nervous tension or anxiety which developed during the time of his war service. In these circumstances, the Tribunal could not, I think, having regard to the onus of proof, properly have found that Mr Sprod did not have such a condition or that that condition was not attributable to war service.

It is not necessary for attributability that such a nervous state or anxiety condition be caused by or contributed to by enemy action or by active service in a field of war. Camp life, service discipline and interpersonal relationships between servicemen can equally cause or contribute to its development. As Gibbs CJ, Wilson and Dawson JJ said, in O'Brien's case, cited above, at p.365 :

" . . . In our opinion, it flies in the fact of commonsense to say that an anxiety neurosis which is occasioned by reason of the separation of the respondent from his wife because of his war service at a time when she is in desperate need of his company is not attributable to that war service. It is even more surprising when tested by the onus of proof provision."

As the Administrative Appeals Tribunal approached these matters on a wrong basis, its decision must be set aside.
Moreover, in my opinion, on the whole of the evidence before it, a finding adverse to the applicant was not open to the Tribunal. It was established, at least on the balance of probabilities, that Mr Sprod's war service caused or exacerbated a state of tension or anxiety in Mr Sprod of which symptoms were occasional impotence, dyspepsia, insomnia, irritability and excitability. The evidence before the Tribunal also, in my opinion, established on the balance of probabilities that Mr Sprod suffered from a like condition in his civilian life from at least 1961 onwards. The Tribunal did not make this finding but the evidence of Dr M. Pozniak, a general practitioner who took over a practice in Bondi in 1960 and who commenced to treat Mr Sprod in 1961, was that he treated him from 1961 for a condition of stress or anxiety which gave rise to labile hypertension. Dr Pozniak said in evidence,

"Well, as I reported I was treating the man for stress and anxiety, symptoms of which hypertension is one symptom not the whole disease, stomach discomfort could be another, insomnia could be another, irritability, and it is a whole pattern, but I remember distinctly, Mr Sprod, only because he had become very dependent upon medical attention and was a very, very frequent visitor throughout those many years '61 to '68."

This evidence is consistent with the note in Mr Sprod's medical records of Dr Pozniak's opinion given on 29 September 1969 that,

"The appellant, Mr H.G. Sprod, began to show symptoms of irritability, insomnia and poor appetite, during his army service, and this is noted on a number of occasions.

He was eventually seen by army physicians and psychiatrists. These manifestations of nervous disorder (disease) were evidently the first symptoms of what became, in the post-war period, a very labile fluctuality hypertension, which contributed to his present condition of arterial insufficiency, (vertebro basal artery). . . . ".

Similarly, the medical records note on 13 March 1971 that Dr Pozniak reported, inter alia,

"Dates of first consultation and subsequent attendances :-

1961-2 and on frequent occasions since.

History given by patient :- Increasing impostency

(sic), Insomnia, Psychosomatic symptoms, Hay-Fever.

Condition found to be present :- Hypertension, Right sided Hemiparesis, Giddiness, Lassitude, Dermatitis.

Copy of any clinical notes :- Has been on Vasodilators, Tranquilisers, Antihistamines of many different types and other symptomatic therapies."

Mr Sprod himself gave evidence to the same effect. Accordingly, the evidence established that Mr Sprod suffered during the war years and at least from 1961 onwards a similar state of nervous tension or anxiety. Although Dr Pozniak did not produce his medical records, for they had passed from him when he had later transferred his practice, he was not shown to be a witness having no credibility. He was a general practitioner speaking of matters within his own knowledge and, in this respect, within his competence. It does not seem to me that his evidence could have been rejected, having regard to the onus of proof.

Indeed, in my opinion, the evidence of Dr Pozniak established on the balance of probabilities that Mr Sprod had labile hypertension from at least 1961 as a result of his state of nervousness or anxiety. In the first few years, Dr Pozniak sought to treat Mr Sprod by treating his nervous or emotional state. Later, it appears Mr Sprod developed essential or sustained hypertension and was treated for that. In 1968, he had a cerebro-vascular incident. His essential hypertension continued from that time.
The evidence before the Tribunal did not deal adequately with the time which elapsed between Mr Sprod's discharge in 1945 and his first seeing Dr Pozniak in 1961, although there appears to be considerable similarity in the states reported in Mr Sprod's medical records during the war years and that of which Dr Pozniak spoke. Unfortunately, Mr Sprod was not asked, either by his own counsel or by counsel for the Repatriation Commission, to speak in any detail about the period between 1945 and 1961. But there is some evidence which shows that Mr Sprod continued to suffer nervous tension. Thus, a note on the file of the Repatriation Commission dated 13 July 1960, which had been obtained from an employer from whom the Commission had sought a report in respect of the period 1954-1956, included the comment :

"(f) State of health during employment : Despite his good attendance (he was paid a commission and was very keen) he was never in robust health but was belted along by a tremendous amount of nervous energy and desire to succeed."

This comment, made in the middle of the period I am now discussing, is at least supportive of the view that Mr Sprod then still had the condition of excitability which had been noted in his war records and which subsequently was related by Dr Pozniak to labile hypertension. And the considerable number of jobs which he held during the period is also consistent with it.

The only positive evidence that the condition to which war service had contributed totally ceased at some stage after the war came from Dr J. Ellard, a phychiatrist, who took the following history from Mr and Mrs Sprod :

"He told me that until he had his first stroke in 1968 (he was uncertain of the date) he was very well indeed. In particular, he had no nervous trouble at all and life was enjoyable. He had some trouble with his knee and other minor physical problems but no psychological problems.

His present symptoms began with that stroke and were exacerbated by the second one which I believe occurred in 1974. Both the patient and his wife said that there has been a general but gradual continuing deterioration in his condition and I accepted this as so. As part of this he has become impotent; this appeared especially after the second stroke.

. . . . .

She said before his stroke he was a happy easy going man. His children idolized him and there was a close relationship between all members of the family. In particular she said that he was 'never worried about anything' and that she did all the worrying."

This history formed the basis of Dr Ellard's evidence that no war attributable psychoneurotic state contributed to Mr Sprod's hypertension. But as the history was inconsistent with the evidence given by Mr Sprod and Dr Pozniak and was not supported by any witness it does not seem to me that it was open to the Tribunal to adopt it, having regard to the onus of proof which the Tribunal was bound to apply. I should add, moreover, that Dr Ellard turned his attention to battle stress or bombing stress and found that element to be missing from the history. But, as I have said, a psychoneurotic reaction may be attributable to war service notwithstanding that it arises simply from camp life or other service conditions well removed from battle and bombing.

Having reviewed the whole of the evidence before the Tribunal, I am of the opinion that it was not open to the Tribunal to find beyond reasonable doubt that Mr Sprod did not suffer from a personality change resulting in nervous tension or anxiety and some degree of excitability, that that condition continued after war service and that it played a part in the development of labile hypertension from which Mr Sprod suffered in the 1960's and ultimately contributed to the essential hypertension from which Mr Sprod suffered from about 1967. Indeed, because of the undoubted relationship between nervous tension, anxiety and the like and labile hypertension, this was a stronger case for the applicant than the situation considered by the Tribunal in Re Foulger and Repatriation Commission (1980) 2 ALD 789 and by the Tribunal in Re Byrne & Ors and Repatriation Commission (1981) 3 ALN No. 43, a decision which was upheld on appeal to this Court (1981) 40 ALR 296.
In the circumstances, it seems to me that the proper course is to make the order that the Tribunal ought to have made, namely, an order directing that Mr Sprod's essential hypertension be accepted as a condition attributable to his war service. I am reinforced in my view by the careful analysis which Lockhart J has made of the Tribunal's reasons for decision and of the approach which it took. I have had the opportunity of reading the reasons prepared by his Honour. I agree with them and with the conclusions reached by his Honour.
I would therefore order that the appeal be allowed, that the decision under appeal be set aside and that it be ordered that Mr Sprod's essential hypertension be accepted as a condition attributable to war service. I would order that the costs of the appeal be paid by the respondent and that leave be reserved to the parties to apply for any further order as may seem meet.

JUDGE2

This is an appeal from a decision of the Administrative Appeals Tribunal ("the AAT") affirming a decision of the Repatriation Commission ("the Commission") which in effect disallowed the appellant's claim for a pension pursuant to the Repatriation Act 1920 ("the Act").

As so often happens in matters of this kind the history of the appellant's claim for a war pension is long. The appellant enlisted in the Australian Army on 7 August 1940 when 22 years of age. He served in Darwin in a field regiment for about six months and later saw active service in New Guinea from August 1942 to December 1943. He married on 10 January 1944 whilst on leave and later returned to war service but not to a theatre of war. He was discharged from the army on 15 November 1945. After discharge he followed a variety of occupations.
On 18 July 1968 the appellant claimed a pension for "giddiness". This condition was diagnosed as vertebro-basalar insufficiency but the claim was rejected by a Repatriation Board on 9 September 1968. On 18 November 1968 an appeal by him to the Commission was disallowed. A further appeal was taken by the appellant to a War Pensions Entitlement Appeal Tribunal and this appeal was also disallowed.
On 24 February 1971 the appellant claimed a pension with respect to incapacity from nerves, neuro-determatitis, insomnia, hay-fever, arthritis in the right knee and impotency. On 15 July 1971 a Repatriation Board accepted incapacity from psycho-neurotic reaction and assessed the incapacity at 10% of the general rate of pension. This was later increased to 20%.
On 14 January 1975 the appellant lodged a claim for a war pension pursuant to the provisions of the Act on the ground of high blood pressure and brain-stem thrombosis. The appellant's incapacity was diagnosed on 21 February 1975 as essential hypertension. On 6 June 1975 a Repatriation Board rejected the claim that the appellant's incapacity from essential hypertension was war related. On 26 August 1975 the appellant appealed to the Commission pursuant to s. 28 of the Act and on 15 October 1975 the Commission disallowed the appeal. On 25 July 1978 the appellant appealed to a War Pensions Entitlement Appeal Tribunal pursuant to s. 64 of the Act. The appeal came before such a Tribunal and on 23 November 1978, following the production of further evidence, the case was referred, pursuant to sub-s. 64(4) of the Act to the Commission for reconsideration. On 21 June 1979 the Commission reconsidered the case and adhered to its previous determination. On 4 September 1980 the appeal came before the Repatriation Review Tribunal as if it were an application for review under s. 107VC of the Act. During the hearing the procedures provided by s. 107VZZB were invoked which resulted in a direction by the President of the AAT pursuant to sub-s. 107VZZB (8) that the AAT review the Commission's decision. On 2 November 1982 the AAT delivered its decision affirming the Commission's decision. Pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 the appellant appealed from that decision to the Full Court of this Court.
It is not entirely clear to me whether it is the Commission's decision of 15 October 1975 or its decision of 21 June 1979 that was before the AAT. The AAT identified what it perceived as the relevant decision in the last paragraph of its reasons as the Commission's decision of 15 October 1975. Yet there are indications in the material before us that it was the decision of 21 June 1979 that was before the AAT. Nothing appears to turn on this question and no argument was addressed to us about it. I shall assume that the relevant decision was that of 15 October 1975.
In the proceedings before the AAT it was not in issue that the appellant suffered essential hypertension. An issue fought before the AAT was whether a condition of the appellant described as stress or anxiety neurosis arose out of or was attributable to his war service. Another issue before the AAT was whether there was any connection between that stress or anxiety neurosis and the essential hypertension the subject of the claim for a pension. It is necessary to refer to the evidence before the AAT and to its findings in some detail to understand the questions on which this appeal turns.
The appellant gave evidence before the AAT. He said that whilst serving with the 2/17 Light Anti-Aircraft Battery at Dobodura in New Guinea in 1943 his unit was bombed by enemy aircraft at night for a period of three to four months. On one occasion the appellant was being towed with other men on a barge at sea, the toll line broke and the appellant volunteered to stay with his sergeant on the barge. They stayed overnight on the barge on the high seas and were aware at all times that they were "just sitting like ducks on the water at the mercy of any passing enemy aircraft". He said that on one occasion a bomber, trying to land, crashed within 50 yards of himself and others and burst into flames. He remembered:

"as if it happened yesterday the pilot struggling in the cockpit. I immediately felt the heat of the fire which forced me and my mates to run away leaving the pilot to burn to his death".

He gave evidence that he was impotent for the first six months after his marriage on 10 January 1944. He said that he became irritable after the war for various reasons and suffered from sleeplessness and impotence. He said that he continued to suffer from impotence from time to time until 1968 when he had his first stroke.
A considerable body of medical evidence was before the AAT. It consisted principally of reports of medical practitioners and viva voce evidence given by them.
Medical evidence tendered on behalf of the appellant consisted of two statements of 13 March and 17 August 1981 from Dr. M.D. Esler, a highly qualified medical practitioner whose specialty is clinical research and treatment of blood pressure. Dr. Esler gave viva voce evidence before the AAT. His only source of information about the appellant was the appellant's file. He never interviewed or examined the appellant. Dr. Esler said in his report that the appellant's hypertension was possibly psychosomatic and a consequence of service-related stress, that stress is one cause of essential hypertension, that the appellant's high blood pressure was more likely to be a consequence of stress than was the case for hypertensive patients in general. The AAT concluded that Dr. Esler had not identified any stress or anxiety or psycho-neurotic reaction with respect to the appellant occurring between 1940 and 1945 which it considered referable to war service in terms of s. 101. The AAT said that his views about the relationship between the appellant's essential hypertension and of any psychosomatic process were expressed as a matter of "suspicion". The AAT gave little weight to the opinion of Dr. Esler. The AAT noted statements of Dr. Esler that he could not causally relate the appellant's post war emotional problems directly to war time service, that he did not know the nature of his personality before the war, that he was not in a position to take a psychiatric history and that the appellant may have had a life long problem of personality adjustment.
Another medical practitioner who gave evidence on behalf of the appellant was Dr. Finlayson, a highly qualified consultant psychiatrist, who made two reports dated 27 March and 1 August 1981. He too gave viva voce evidence. Dr. Finlayson said that the appellant's history during war service and subsequently was of a chronically anxious man; that leaving the army, re-entering civilian life, disabilities from war service and adapting to a new lifestyle with a wife and young children were factors which caused or contributed to the appellant's stress. The AAT examined the evidence of Dr. Finlayson at considerable length and mentioned some of his evidence which it regarded as so unsatisfactory as to persuade it that it should be given but little weight. The AAT concluded that upon the whole of the evidence it rejected the proposition that any stress which the appellant suffered upon his marriage, for example, his so called temporary impotence and concern over his wife's difficulties was of such moment that it was a contribution to any ongoing condition which was a necessary part of the development of essential hypertension.
Another medical practitioner who gave evidence for the appellant was Dr. M. Pozniak, a general practitioner at Rose Bay who first treated the appellant in 1961 and many times thereafter. He furnished a report of 22 June 1981 and gave viva voce evidence. He made other reports to the Repatriation Department concerning the appellant's medical condition. Dr. Pozniak said in his report of 22 June 1981 that in his opinion the appellant's condition of hypertension was "the end result of nervousness, anxiety first noticed and treated by his Army Medical officers during his active service of which records are available in the patient's medical history records." The AAT analysed Dr. Pozniak's evidence at some length. It weighed Dr. Pozniak's evidence in the light of evidence from certain other medical practitioners but does not appear to have reached any particular conclusion about Dr. Pozniak's evidence.
The appellant called a Dr. Schiller, a specialist cardiologist. Dr. Schiller stated that he accepted that the appellant's psychoneurosis had been present since 1945 from evidence in the appellant's file or from his interpretation of material in that file. The AAT noted that Dr. Schiller did not offer an independent personal explanation of the relationship between war service and the appellant's present condition.
A statement was before the AAT from Dr. Shomron of 3 August 1978 stating that he and Dr. Pozniak had been treating the appellant for hypertension since 1968. There is a further statement of Dr. Shomron of 20 February 1979 that he thinks the psychoneurotic reaction which was accepted as being war related would have been a factor in the development of the appellant's hypertension. Dr. Shomron gave no viva voce evidence. The Tribunal gave his opinion little weight.
Dr. Weiner of New York had specialist qualifications in the field of psychiatry. He wrote two letters of 16 January and 28 July 1981 answering questions submitted to him. He did not see or examine the appellant. The AAT noted that Dr. Weiner was of the opinion that psychosomatic contributions to the aetiology, pathogenesis and exacerbation of essential hypertension are a "real possibility" receiving the support of experiments on animal models. Dr. Weiner stated that a direct connection between the stress and somatic reactions and military service of the appellant can neither be asserted nor refuted. The AAT noted that Dr. Weiner did not specify what was included in the term "military service" or what was the source of any anxiety in the appellant which may have contributed to the course and development of the hypertensive process or when that contribution may have taken place. The AAT found that the basis upon which Dr. Weiner expressed his opinion was inconsistent with the description of the appellant's life before his stroke in 1968 as related by him and his wife to Dr. Ellard - a medical practitioner called by the Commission to whom I shall refer later. The AAT analysed Dr. Weiner's statements and said that his opinions were tentatively expressed and, although acknowledging his qualifications in the field of psychiatry, it did not consider that his contribution materially advanced the contentions for the appellant.
The AAT noted certain contents of the file of the Repatriation Department relating to the appellant including comments by various medical practitioners at different times who appear to have examined the appellant including Drs. Avedikian, Keily, Gunther and White. It noted also that Mrs. Sprod, the wife of the appellant, was not called to give evidence. The Tribunal said that the failure by the appellant to call Mrs. Sprod or to account for her absence rendered it less acceptable that there was any such anxiety state as he alleged or any signs or symptoms of it prior to 1968. The inference they drew was that any evidence she might have given would not have supported the appellant's claim. The AAT relied on Jones v. Dunkel (1959) 101 CLR 298 in support of this statement.
A Dr. Kelly, Scandrett Professor of Cardiology at the University of Sydney, was called by the Commission. He had carried out intensive research and examination of hypertension in patients. He examined the appellant on 18 May 1981. He did not think that there was any connection between the stress suffered by the appellant during his war years, his subsequent psychoneurosis and the later development of essential hypertension. It was his opinion that there was nothing authoritative to support a proposition that stress can be one of the causes of essential hypertension.
Dr. Ellard, a highly qualified psychiatrist, was called on behalf of the Commission. Dr. Ellard consulted with both the appellant and Mrs. Sprod before writing a report dated 22 April 1981. He gave viva voce evidence. He was satisfied that the appellant had never suffered from a neurosis, that it was a misnomer to refer to him as a "psychoneurotic" person, and that his symptoms were organically determined. He could not see any possible connection between war service and the presence of either hypertension or vascular disease. In viva voce evidence he said that he did not believe the appellant had ever had a psychoneurotic reaction. After stating Dr. Ellard's evidence the AAT concluded that it was satisfied beyond reasonable doubt that the appellant is not now suffering from psychoneurotic reaction and never has done so.
Dr. Brender, a consultant cardiologist, examined the appellant on 7 April 1981 and made a report on 1 May 1981 in which he recorded that there was nothing to suggest that the appellant had labile hypertension or any cardio vascular symptoms due to an anxiety state though he noted the presence of anxiety and mild depression. He considered that the appellant's essential hypertension had "almost certainly" arisen on the basis of a positive family history as well as his being overweight. He would not have expected stress to have played any part in his symptomatology or the development of his hypertension. He said that the opinions of Drs. Pozniak and Shomron would have to be discounted.
After reviewing the medical evidence the AAT made various findings of fact in respect of which it said that it was satisfied beyond reasonable doubt. They included the following:-

- There is no recorded elevated blood pressure during the
appellant's war service and therefore no evidence that he was
suffering from stress;

- Whatever stress had been suffered by the appellant from
incidents on which he relied, namely, the incidents relating to the
bombing at Dobodura, staying overnight on a barge in the high seas, a
bomber bursting into flames on landing near him, his "so-called"
temporary impotence during marriage and his hitch-hiking his way from
Queensland to New South Wales towards the end of the war was transient
and had subsided before the date of his discharge from the army. This
was confirmed by the appellant's recorded blood pressure levels at the
date of his discharge;

- If the appellant's essential hypertension arose from stress,
caused by his altered lifestyle during his period of enlistment or an
altered lifestyle attributable to added family responsibilities or
being separated from his family during that period or by ongoing
lifestyle changes, that stress and resulting hypertension were matters
which related to the appellant's decision to marry and to take on
family responsibility. They were not matters related to his war
service within the meaning of s. 101 of the Act;

- The appellant during his period of enlistment and thereafter
was not a chronically anxious man, at least not until after his
cerebro-vascular accident in 1968;

- If leaving the army, resuming civilian life, adapting to a
new lifestyle with his wife, getting to know his wife and young baby
were factors which caused or contributed to any stress he may have
suffered, those factors and any such stress were not related or
attributable to his war service within the meaning of s. 101 of the
Act;

- The appellant did not show symptoms of significant stress
from any unsatisfactory relationship with his wife or following
marriage and the birth of his son;

- Any stress which the appellant suffered from his marriage was
not a contribution to any ongoing condition which necessarily related
to the development of essential hypertension;

- The appellant did not suffer from any pre-existing incapacity
which was contributed to in any material degree or was aggravated by
conditions during his period of enlistment or by his war service;

- There were no post war stress factors resulting from any
occurrence during the appellant's war service or which arose out of or
were attributable to his war service. No stress factors were due to
any accident that occurred or to a disease or infection that was
contracted and that would not have occurred or been contracted but for
his being on war service or but for changes in his environment
consequent upon his being on war service;

- The appellant did not suffer from psychoneurotic reaction
which arose out of or was attributable to war service.

The AAT noted Repatriation Commission v. Law (1981) 36 ALR 411 where the High Court considered para. 107VH(2)(a) of the Act and interpreted it to mean that the Commission had to satisfy the Repatriation Tribunal beyond reasonable doubt that all of the relevant relationships with war service had been exluded. The AAT said that in substance sub-s. 47(2) of the Act (which related to the Commission) was identical with para. 107VH(2)(a) and that similar considerations were to be followed by the AAT in deciding the present case. The AAT said that under sub-s. 47(2) the Commission was required to grant the appellant's claim unless it was satisfied beyond reasonable doubt that there were insufficient grounds for granting it. It said that the same requirement applied to the AAT in its consideration of the claim.
The AAT said that it was satisfied beyond reasonable doubt that there was no connection or relationship between the appellant's condition of essential hypertension and the period of his enlistment or his war service. Any such connection or relationship could only be described as "fanciful or tenuous".
The AAT said that it was satisfied beyond reasonable doubt that the appellant's incapacity from essential hypertension:

- had not resulted from an occurrence that happened during the
period from the date of his enlistment to the date of the termination
of his service in respect of that enlistment;

- had not arisen out of and was not attributable to his war
service;

- was not due to a disease or infection that was contracted and
that would not have been contracted but for the appellant being on war
service or but for changes in his environment consequent upon his
being on war service;

- has not been contributed to in any material degree or has not
been aggravated by the conditions of his war service.
The AAT concluded that it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the appellant's claim. It affirmed the decision of the Commission under review.
The principal challenge made by the appellant to the findings of the AAT was that, although it had towards the end of its reasons made crucial findings expressed to have been made beyond reasonable doubt, a reading of the reasons as a whole led to the conclusion that the AAT failed to apply the tests laid down by the High Court in Law's Case. It was submitted by counsel for the appellant that the AAT made various findings throughout its lengthy statement of reasons from which it is manifest that the task on which it was engaged was akin to a tribunal of fact, judging the evidence generally on the balance of probabilities, and at the end of its reasons rolled up all its critical findings in the language of Law's Case. But, it was submitted, by then the damage had been done because the findings that were central to the case had not been made by applying the principles of Law's Case.
Counsel for the appellant challenged most of the findings made by the Tribunal including the findings that any stress suffered by the appellant during his period of enlistment or thereafter was not related to war service within the meaning of s. 101 of the Act; that the Tribunal erred in finding that the hypertension of the appellant was not war related; that there was no ground for drawing inferences adverse to the appellant by his failure to call his wife to give evidence and that reliance upon Jones v. Dunkel was inappropriate to the AAT's task of determining claims under the Act. It was also submitted that it was not open to the AAT to reconsider and reject the finding by the Repatriation Board in 1971 that the appellant suffered incapacity from a psycho-neurotic reaction or stress and that this was war related.
The Tribunal's decision was given on 2 November 1982. The High Court decided The Repatriation Commission v. O'Brien (1985) 59 ALJR 362 on 27 February 1985. Counsel for the appellant pointed to many elements of correspondence between O'Brien's Case and this case and relied heavily upon it in support of his argument. Indeed he submitted that this case was in all material respects on all fours with O'Brien's Case.
Counsel for the Commission submitted that the AAT had correctly applied the principles enunciated in Law's Case and applied by the High Court in O'Brien's Case. She sought to distinguish O'Brien's Case on more than one ground but primarily on the ground that in O'Brien's Case it was accepted that the veteran suffered from an anxiety neurosis and the real issues there were what connection, if any, existed between that accepted disability and the veteran's war service and between that disability and the essential hypertension. In the present case there was a real question whether the appellant did suffer from an anxiety neurosis in any relevant sense and, if he did, whether there was any relevant connection between that anxiety state and his war service and his essential hypertension.
Counsel for the Commission submitted that the real issue before the AAT in this case was whether any anxiety state or stress which the appellant may have suffered was of such a continuing or sustained nature that it could be said to have arisen out of or be attributable to war service and, if it could, then whether it led to the hypertensive incident suffered by the appellant in 1968. It was not suggested before the AAT that the appellant was hypertensive prior to his enlistment. The evidence showed that during his enlistment and upon his discharge in 1945 his blood pressure readings were normal. Although the AAT did not find that the appellant did not suffer stress during the period of his enlistment, it did find that there was no recorded elevated blood pressure during war service such as might indicate that he was suffering from stress. The AAT also found that whatever stress had been suffered as a result of incidents during war service was transient and had subsided before the date of discharge. Counsel submitted that these findings were open on the evidence and that the medical evidence supporting a link between stress and hypertension relates only to prolonged or continuing periods of stress which were absent in the present case. The objective evidence of blood pressure readings of the appellant showed that his blood pressure was normal during war service, upon discharge from war service, in 1960 when he saw his local general practitioner and that it was not until 1968, when he suffered a cardiac incident, that any abnormal blood pressure readings were recorded. This sufficiently summarises the principal submissions of the parties.
The AAT is required by sub-s. 47(2) to set aside a decision of the Commission refusing a claim unless satisfied beyond reasonable doubt of the negative proposition that there were insufficient grounds for granting the claim: Law's Case. Although in its ultimate findings the AAT used the language of sub-s. 47(2) its reasons demonstrate to me that it did not in fact approach its task that way. It referred in some detail to the evidence of the appellant and of the various medical practitioners. It noted early in its reasons that the evidence of the appellant was inconsistent with statements made by the appellant and his wife to Dr. Ellard. It adopted the formula of analysing the evidence of each medical practitioner, then discussing that evidence and measuring it against the evidence of other medical practitioners or other evidence in the case and making findings on critical matters as it proceeded throughout its reasons. For example, in the course of discussing the evidence of Dr. Elser the AAT said:

"his written opinion finally is that the applicant's hypertension is possibly 'psychosomatic' and a consequence of 'service related stress'. But he does not say what in 'service' was stressful (or how closely related). If, for example, it refers to early marriage problems of so-called 'impotence' we do not agree that any such stress is service related - i.e. in the sense of qualifying under s. 101."

In the course of considering Dr. Finlayson's evidence the AAT said:

"We do not agree that evidence supports Dr. Finlayson's opinion that leaving the army, re-entering civilian life, disabilities from war service, adapting to a new life style with wife, getting to know his wife and young baby or that he did not know them during the war, were factors which caused or contributed to his stress. Quite apart from any factual considerations, we do not think that any of the factors referred to in Dr. Finlayson's answer could be said to be related to the Applicant's war service.

It has not been supported by the evidence and we do not agree with Dr. Finlayson's position that the Applicant 'never used his intellectual potential' or that in his 'potential for achievement' he was 'clearly thwarted' . . .

Dr. Finlayson's evidence is based on what he described as 'facts known about him', i.e. the Applicant. In our observations what are asserted as 'facts known about him' are not supported by the objective evidence."

A number of other findings in similar vein were made by the AAT about Dr. Finlayson's evidence which led to the AAT saying that they should give but little weight to his evidence. It said:

"Upon the whole of the evidence, we reject the proposition that any 'stress' which the Applicant suffered upon his marriage . . . was of such moment that it was a contribution to any ongoing condition which was a necessary part of the development of essential hypertension. An 'altered lifestyle' during the war -- related to added family responsibility and being separated from his family and any condition of 'impotence' or of worry over his wife's housing difficulties would not, in our opinion, be an occurrence within the meaning of s. 101(1)(a) of the Act. Nor could any essential hypertension incapacity, to the genesis of which those matters were contributors, be said thereby to have arisen out of or be attributable to the Applicant's war service."

In finally disposing of Dr. Finlayson's evidence the AAT said in that section of its reasons:

"We are satisfied beyond reasonable doubt that any of these so-called post war stress factors did not result from any occurrence that happened during Applicant's war service or arose out of or was attributable to his service; and, further, that any such stress factors were not due to any accident that occurred or to a disease or infection that was contracted and that would not have occurred or been contracted but for his being on war service or but for changes in his environment consequent upon his being upon war service."

The AAT turned then to Dr. Pozniak and approached its task in a similar way.
When the AAT turned to the evidence of Dr. Ellard it said:

"Having regard to Dr. Ellard's qualifications, his examination of the Applicant and the Applicant's wife and the more extensive evidence available to him, we consider that Dr. Ellard's opinion 'destroys' the opinion of Dr. White, and we are satisfied beyond reasonable doubt that the applicant is not now suffering from psycho-neurotic reaction and never has done so."

Then later in its reasons the AAT said:

"At hearing before this Tribunal Drs. Avedikian, Keily, Gunther and White and Mrs. Sprod were not called to give evidence. . . . The failure by the Applicant to produce evidence from her or to account for her absence, in our view, renders it less acceptable that there was any such anxiety state; or any signs or symptons of it prior to e.g.

1968. The inference we draw is that any evidence she may have given would not have supported Applicant's claim. See Jones v. Dunkel . . . And the statements attributed to her by Dr. Ellard, to which later reference is made remain without qualification."

These are some examples of the course adopted by the AAT in its reasons of examining the evidence, assessing witnesses and making findings sequentially. I have the firm impression that the AAT analysed the evidence as if it were judging a civil cause, hearing evidence from witnesses and resolving conflicts, generally on the balance of probabilities, taking into account the impression made upon it by each witness, weighing his evidence, comparing it with the evidence of other witnesses and making findings as it proceeded with its task step by step until the end when it stated its findings as conclusions reached beyond reasonable doubt. This approach goes to the heart of the matter because, if the Tribunal had in fact approached its task on the basis that it was bound to set aside the Commission's decision unless satisfied beyond reasonable doubt of the negative proposition that there were insufficient grounds for granting the claim, it would have approached its task by a fundamentally different method.
The statement of the AAT's findings towards the end of its reasons which are expressed to have been made beyond reasonable doubt manifests again that the Tribunal approached its task in the manner indicated by me. It appears to me from those findings of the AAT that it in fact reversed the statutory onus of proof when it should have approached the matter on the basis that it had to be satisfied beyond reasonable doubt of the contrary propositions.
These considerations are sufficient in themselves to lead to the appeal being allowed; but there is another matter which independently leads to the same result.
Part IIIB of the Act provides for the review of decisions of the Commission by the AAT. The applicant or the Commission during the hearing of a proceeding before the Repatriation Review Tribunal under Part IIIA of the Act may apply to that Tribunal requesting that the decision of the Commission to which the proceeding relates be referred for review by the AAT. The person making the application is required to furnish to the Repatriation Review Tribunal a statement of the reasons for making the application (sub-s. 107VZZB(3)). The Repatriation Review Tribunal shall then adjourn the hearing of the proceeding before it and shall refer the application to the President of the Repatriation Review Tribunal (sub-s. 107VZZB(4)). The President of the Repatriation Review Tribunal shall then consider that application requesting a review and shall if he considers that the decision the subject of the application involves an important principle of general application with respect to entitlement to or assessment of pension under the Act refer the decision to the President of the AAT together with a statement of his reasons for so concluding and particulars of any submissions made in support of the application with a request for a review by the AAT of that decision (sub-s. 107VZZB(7)). Where the President of the AAT receives a request under sub-s. 107VZZB(7) for a review by the AAT of a decision he shall direct the review of that decision by the AAT in accordance with the Administrative Appeals Tribunal Act 1975 (sub-s. 107VZZB(8)).
It will be remembered from my earlier statement of the facts that on 24 February 1971 the appellant claimed a pension with respect to incapacity from various conditions including a nervous condition. On 15 July 1971 the Repatriation Board accepted incapacity from psycho-neurotic reaction and assessed it at 10% of the general rate. This was later increased to 20% with respect to all disabilities following a successful appeal by the appellant to a War Pensions Assessment Appeal Tribunal. On 2 December 1974 the appellant claimed a pension for incapacity from high blood pressure and claimed it on the basis that it was the result of his accepted disabilities. A Repatriation Board rejected incapacity from hypertension. On 26 August 1975 the appellant appealed to the Commission. On 15 October 1975 the Commission disallowed the appeal stating in its reasons that it accepted the opinions of departmental medical officers that:

"essential hypertension has not been caused by the effects of, or the treatment for the appellant's accepted service-related disability, nervous condition."

On 25 July 1978 the appellant appealed to a War Pensions Entitlement Appeal Tribunal against the Commissioner's decision with respect to essential hypertension. On 21 June 1979 the Commission reconsidered the case and adhered to its previous decision. In its reasons the Commission stated that it found that the senior departmental medical officer had "satisfactorily answered the points raised in the further evidence" and that:

"the Commission finds that there is a hypothesis that stress plays some kind of indeterminate role in hypertension. The Commission finds that this hypothesis remains speculative and the Commission cannot find in speculation ground for rational doubt or ground for drawing reasonable inferences which would favour the granting of the claim. Thus, it has not been shown that stress in general terms causes the disease essential hypertension. Nor has it been shown that in this particular case war service, the stress of war service or any of the accepted disabilities including psychoneurotic reaction have been responsible for the development of the subject incapacity."

At the request of the appellant's representative his case did not come before the Repatriation Review Tribunal until 4 September 1980 when the appellant applied pursuant to sub-s. 107VZZB(3) requesting that the decision of the Commission be referred for review by the AAT. The hearing was then adjourned in accordance with sub-s. 107VZZB(4).

The statement of reasons accompanying the appellant's application to the Repatriation Review Tribunal requesting a review by the AAT of the Commission's decision included the following statements:

"In its decision dated 21st June 1979 the Repatriation Commission indicated that it had adhered to its previous determination to the effect that the veteran's 'essential hypertension' was not war-related."

The question in issue is whether a war-caused psycho-neurotic reaction was a factor in the development of the member's present hypertension.

The principles involved are as follows:-

1. Whether in the light of the available medical evidence showing a relationship between the member's accepted disability of psycho-neurotic reaction and the subsequent development of hypertension, the Repatriation Commission could be satisfied beyond reasonable doubt that there are insufficient grounds for granting the application."

The President of the Repatriation Review Tribunal sent to the President of the AAT, in accordance with sub-s. 107VZZB(7), a statement of his reasons for concluding that the decision of the Commission involved an important principle of general application with respect to entitlement to pension under the Act. That statement of reasons dated 8 December 1980 included the following statements:

"This case concerns the relationship between war service and essential hypertension. In particular, it has been claimed by and on behalf of the Applicant that incapacity for psychoneurotic reaction, which has been accepted as being due to his war service, has been a factor in the development of his hypertension.

. . .

I have considered the application and I conclude that the decision of the Commission involves the following important principle of general application:

Whether, in a case concerning incapacity from hypertension, where there is evidence of stress on service and evidence that stress is a factor in the development of hypertension, the Repatriation Commission could have been satisfied beyond reasonable doubt that there were insufficient grounds for allowing the appeal. . . . "

The President of the AAT then directed the review of the Commission's decision by the AAT in accordance with the Administrative Appeals Tribunal Act 1975 pursuant to sub-s. 107VZZB(8).
The decision of a Repatriation Board of 15 July 1971 accepted the incapacity of the appellant from psychoneurotic reaction as necessarily involving the finding that the appellant's anxiety state or stress was related to or connected with his war service. This relationship between the appellant's condition of stress as being war related was assumed at all relevant stages of the process which led to the review of the Commission's decision of 15 October 1975 by the AAT. It was not the subject of challenge and was not a matter included within the reference to the President of the AAT from the President of the Repatriation Review Tribunal. In my view the AAT had no jurisdiction to review that particular matter. Yet it is plain that the AAT did regard as an issue before it whether the stress or psychoneurotic reaction suffered by the appellant was attributable to war service. The AAT should have accepted that the appellant's anxiety state or stress was attributable to or aggravated by his war service. If this had been accepted then the question before the AAT would have been whether there existed the requisite connection between that state of stress and the hypertension which formed the basis of the appellant's claim under the Act. This is an independent reason for allowing the appeal.
There remains the question whether the matter should be remitted to the AAT for further hearing or whether this Court should itself determine the matter, as was done in O'Brien's Case by granting a pension.
Appeals from decisions of the AAT to this Court are limited to questions of law (sub-s. 44(1) of the Administrative Appeals Tribunal Act 1975) and this Court should not assume the functions of the AAT as a fact finding body. However, in certain cases this Court can be in a position to find that a conclusion adverse to an appellant could not reasonably be entertained. This was the course adopted by a Full Bench of this Court and affirmed by the High Court in O'Brien's Case. This case is closely parallel to O'Brien's Case. Counsel for the appellant said that it was indistinguishable from it. Although I think this goes too far, nevertheless the similarities between the two cases are striking and I am reinforced in the views which I have formed in this matter by O'Brien's Case. In my opinion if the AAT had properly instructed itself it could not have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. Davies J. in his reasons for judgment has stated the reasons which led him to conclude that this Court should itself determine the matter and not remit it to the AAT. I agree with what his Honour said on that question.
I would allow the appeal, set aside the decision of the AAT, order that the appellant's essential hypertension be accepted as a condition attributable to his war service and order that the appellant's claim be granted. The Commission should pay the appellant's costs of the appeal to this Court. Any party should be at liberty to apply.

JUDGE3

In this matter I have had the advantage of reading the judgments to be delivered by Davies and Lockhart JJ. I agree in their conclusion that the appeal should be allowed, the Tribunal's decision set aside, and, in lieu thereof, a decision substituted allowing the appeal from the decision of the Commission dismissing the applicant's claim for a pension.

The applicant's record of service discloses that he suffered a number of stressful incidents during his war service. He was in Darwin for four months and New Guinea for nineteen months. In the words of a note dated 30 January 1945, which forms part of his record, he was "(n)ot in action but subjected to a fair amount of aerial bombing". On 26 January 1945 it was said that he was then suffering from insomnia, irritability and a poor appetite. He had been "jittery" for two months and was "getting worse". Some at least of his then condition was due apparently to domestic worry.
Particular incidents in which the applicant was subjected to stress are described in the judgment to be delivered by Lockhart J. and I need not refer to the detail of these.
The evidence of Dr. Esler and Dr. Schiller referred to in the judgment to be delivered by Davies J. is to the effect that in their opinion stressful incidents may cause elevated blood pressure in some individuals. The effect is usually transitory. After the effects of the stress are over, the blood pressure will return to normal. The doctors' evidence also establishes that it is possible that in some cases stress causing elevated blood pressure of this kind may eventually over a period precipitate essential hypertension, the condition from which the applicant suffers. That part of the evidence was the subject of substantial challenge and contradiction, but as I read the Tribunal's decision, it did not reject Dr. Schiller's and Dr. Esler's evidence in the sense of putting it aside altogether. What it did do was to discount it both because of concessions made by the doctors in their cross-examination and because of what it considered to be the substantial weight of contrary medical opinion called in the case.
Much was made by counsel for the Commission of the absence of evidence of any abnormal blood pressure reading before 1960, some fifteen years after the applicant's service concluded. But the fact is that in 1945 at discharge, the applicant's blood pressure was recorded as being 130/85 which Dr. Schiller thought was higher than normal for a twenty-seven year old man. He was pressed in cross-examination about this statement. He resiled somewhat from what he had said in his report, but maintained that it was "borderline" for the applicant's age group. By 1960 the applicant's blood pressure was recorded as being 150/88.
Dr. Schiller said:-

"Like Prof. Kelly, Dr. Brender suggests Mr. Sprod did not have labile or other hypertension. He did: he had a reading of 150/88 at the age of 42. The fact that his blood pressure at the age of 27 was 130/80 in no way constitutes negative evidence; raised blood pressure mostly develops above the age of 30 years, and as pointed out earlier by Dr. Edgley, a blood pressure of 130/80, is if anything slightly above the average for a man in the mid-twenties."

The applicant's primary submission is that, as a matter of law, it was not open to the Tribunal to hold that it was satisfied beyond reasonable doubt that there were insufficient grounds for allowing the appeal; sub-sec. 47(2) of the Repatriation Act 1920. In my opinion this submission should be upheld. Notwithstanding the various findings made by the Tribunal, I do not myself perceive how, in the light of the real possibilities raised by the evidence of Dr. Esler and Dr. Schiller, the Tribunal could have reached its ultimate conclusion of satisfaction beyond reasonable doubt. In reaching this conclusion I have taken into account the fact that, as earlier noted, some at least of the stress from which the applicant apparently suffered during his war service was caused by domestic worry over the plight of his wife. It is established by the decision of this Court in O'Brien v. Repatriation Commission (1984) 1 FCR 472 that stress of this kind is nevertheless stress which arises as a result of war service; see per Keely and Fitzgerald JJ. at p. 483. Counsel for the Commission relied on differences which there were between the factual situation in O'Brien's case and in this one. Undoubtedly there are differences, but the evidence nevertheless established, in my opinion, that stress suffered by the applicant as the result of domestic problems was due to war service.
It follows, in my opinion, that the appeal must be allowed. There is no occasion to send the matter back to the Tribunal. We should ourselves order that the appeal to the Tribunal be allowed. My conclusion in this regard is based on the fact that, upon the evidence which was led before the Tribunal, no other conclusion was open than that it ought not to have been satisfied beyond reasonable doubt that there were insufficient grounds for allowing the appeal.
Two matters remain to be mentioned. I am in agreement with the separate reasons given by Lockhart J. for the allowance of the appeal. A comprehensive reading of the Tribunal's decision discloses, in my opinion, that it in substance cast an onus on to the applicant, an onus which he did not bear. I would allow the appeal for that reason also, but that of itself would not lead to the reversal of the Tribunal's decision. If that were the only ground, the matter would need to be remitted to the Tribunal to be heard again.
Finally, I should mention a submission made by counsel for the applicant which was based on the provisions of s. 107VZZB of the Repatriation Act. Pursuant to sub-sec. (7) thereof the President of the Repatriation Review Tribunal may, in the circumstances there mentioned, refer a decision of the Commission to the President of the Administrative Appeals Tribunal with a request for a review by that Tribunal of the decision. On 8 December 1980 the President of the Repatriation Review Tribunal wrote to the President of the Administrative Appeals Tribunal informing him that he had considered the application and concluded that the decision of the Commission involved an important principle of general application, namely:-

"Whether, in a case concerning incapacity from hypertension, where there is evidence of stress on service and evidence that stress is a factor in the development of hypertension, the Repatriation Commission could have been satisfied beyond reasonable doubt that there were insufficient grounds for allowing the appeal."

On 15 July 1971 a Repatriation Board had accepted that the applicant was suffering incapacity from psychoneurotic reaction. The degree of incapacity was assessed, first of all at ten per cent. This was subsequently increased to twenty per cent. Notwithstanding the acceptance of this incapacity, the Tribunal found that the applicant was not in fact suffering incapacity from psychoneurotic reaction.
In the submission of counsel for the applicant the Tribunal had no jurisdiction to disturb that finding. The only matters before it were those arising from the reference to it by the President of the Repatriation Review Tribunal. These did not raise the question of whether the applicant was suffering incapacity from a psychoneurotic reaction. In my opinion the matter is concluded against the Commission by the decision of the High Court in Repatriation Commission v. O'Brien (1985) 59 ALJR 363. Of the similar submission made in that case Gibbs C.J., Wilson and Dawson JJ. said (p. 365):-

"In the present case, the reference was confined to the five decisions of the Commission whereby on each occasion the respondent's claim for a war pension based on his essential hypertension was rejected. The decision of a Repatriation Board in November 1961 accepting the respondent's anxiety neurosis as due to war service has never been challenged by way of appeal. The same is true of the decision of a Board in 1970 which raised the assessment of his disability in respect of that neurosis from nil to 20 per cent. Whether or not the Commission considered it desirable to do so, in our opinion it was not open for these earlier decisions to be reviewed and reversed in the course of considering the respondent's claim based on his hypertension. Neither of these earlier decisions were embraced within the reference to the President of the AAT. The AAT therefore had no jurisdiction to review either of those decisions: Administrative Appeals Tribunal Act, s. 25."

The submission made by counsel for the applicant based on s.107VZZB must therefore be upheld. It should be understood that it is upheld not because of any application of the concepts of res judicata or issue estoppel to proceedings before an administrative tribunal, as was suggested at one stage in argument, but because of an absence of jurisdiction.
As in the case of the second ground of appeal, the upholding of this ground would not itself have led to the making of an order by this Court that the applicant's appeal to the Administrative Appeals Tribunal should be allowed. It alone could only have led to the matter being remitted to the Tribunal to be heard again. For reasons earlier given, however, I agree in the reasons of the other members of the Court that, not only should the appeal be upheld; an order should also be made which will have the effect of granting the applicant the pension which he seeks.

[1985] FCA 617

13 DECEMBER 1985