JUDGES CHAMBERS FEDERAL COURT OF AUSTRALIA CATCHWORDS War Pension - Partial physical incapavity - Inability to earn a living wage - Obligation of Repatzialion Review Tribunal to consider applicant's claim - Obligation to state reasons for its decision and any findings of fact - Failure to state all reasons. Appeal - Appeal from Repatriation Review Tribunal ona question of law - whether Tribunal entitled to decide in accordance with"equity and good conscience" - meaning of "Substantial justice and the m2i1its" - Wnether Tribunal bound to comply with provisior of Repatriation Act - Whether appeal lies where reasons for Tribunal''s decision are not stated. Repatriation Act. 1920 ss.27, 35, 101, 107VG, 107VH, 107VK, 107VZZB, 107VZZG, 1O07VZ2H, Schedules 1 and 2. RONALD NORMAN COLLINS v THE REPATRIATION COMMISSION No. S.A. Gll of 19380 Coram: Fasher J. Adelaide 17 September 1989 IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No, G.i1 of 1290 SOUTH AvstRaui' ' ) GENERAL DIVISION ON APPEAL FROM (HE REPATRIATION REVIEW TRIBUNAL BETWEEN: RONALD NORMAN COLLINS Applicant - and - THE REPATRIATION COMMISSION Respondent ORDER JUDGE MAKING ORDER: FISHER J. DATE OF ORDER: 17 SEPTEMBER 194') WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. This matter be remitted to the Repatriation Review Tribunal for further hearing in the light of this decision, with the hearing of such evidence, 1f any, aS may be presented to the Trabunal. 3. The respondent pay to the applicant his costs of this appeal. IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. Gll of 1989 ) GENERAL DIVISION ) REVIEW TRIBUNAL ON APPEAL FROM 'IIHTE REPATRIATION RONALD NORMAN COLLINS Applicant - and - THE REPATRIATION COMMISSION Respondent REASONS FOR JUDGMENT FISHER J.: Ronald Nomnan Collins ("the applicant") is a "Member of the Forces" within the meaning of s.100 of the Repatriation Act 1920 ("the Act") having served on war service with the Royal Australian Air Force during World War II from 25 May 1943 until 31 July 1945. During this period he hai active service outside of Australia. Since 1974 the applicant has been in receipt of a pension under the Act and since 1977, until its cancellation, a pension at what 1s called the Intermediate Rate, but which 1s nore correctly defined as the rate prescribed by paragraph 6 of Schedule 1 of the Act. Such pension is in respect of incapacity from his accepted war-caused disabilities. On 7 August 1978 his entitlement was reviewed by a Repatriation Board and the rate of his pension was re-assessed at 60% of the General Pension Rates prescribed by Schedule 1 of the Act. His pension was in consequence of this re~assessment reduced, as aforesaid, as From 24 August 1972. On 9 November 1978 the applicant lodged an appeal to an Assessment Appeal Tribunal against this re-assessment by the Repatriation Board. However pursuant to the provisions of s.48 of the Repatriation Acts Amendment Act 1379, which section 1s one of several transitional provisions, the appeal came before the newly created Repatriation Review Tribinal ("the Tribunal") as if it were an application ander s.107 Vb of the Act. On 15 August 1979 that Tribunal concluded that it was: "not satisfied, beyond reasonable doubt, that the decision of 7/8/78 1s the decision that 1t would have made 1f 1t had conducted the proceeding in which that decision was made and therefore the Tribunal sets aside that decision and substitutes for that decision the following decision: 'Incapacity from the service-related disabilities 1s assessed at 80% of the General Rate as from 24/8/78'." The applicant appealed to this court parsuant to s.107 VZ2ZiH of the Act which authorises an appeal from the Tribunal ona question of law. Essentially the appeal was launched because of the applicant's contention that he was entitled tc have his pension assessed at the Intermediate Rate, namely in accordance with paragraph 6 of Schedule 1 of the Act, to which T refer Subsequently. In other words the appeal relates to the assessment of the appropriate rate of pension, and not to the entitlement of the applicant to a pension, Section 101 of the Act, which 1S contained 1n Division 6 thereof, imposes a liability on the Commonwealth to pay a pension to the applicant and is in the following terms: "101. (1) Upon the incapacity or death - (a) of any member of the Forces who was employed on active service, whose incapacity or death has resilted From any 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 enlist- ment; or {b) of any member of the Forces whose incapacity or death has arisen out of or 18 attributable to his war service, the Commonwealth shall, subject to this Act, bo Liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division Ll: Provided that..." Thas 1t 1S apparent that the obligation of the Commonwealth to pay a pension is not at large but is subject to the provisions of the Act. The entitlement of the applicant under the Act 1s a consequence of his incapacity and 1s to a pension in accordance with Division 1. The word "incapacity" dogs not appear to be defined by the Act, out a perusal of other provisions indicates that the relevant incapacity 1s in effect a physical or mental disability rather than an incapacity sich as an inabrlity to perform work or earn wages or otherwise. The crucial provision 1n Division 1 of the Act in respect of the pension which the Commonwealth 1s liable to pay 1s 3.35 which 18 as Follows: "35(1). Subject to section 35AA, the rates of pensicn payable under this Division aid Jivisions 6 to 10 (inclusive) are those specified in the Schedules." There are five Schedules to the Act which provide varying rates of pensions, and Schedule 1 1s the relevant Schedule in this matter. It 1s desirable to set it out in full. "Schedule 1 GENERAL PENSION RATES TABLE OF PENSIONS PAYASLE, SU3JECT TO SCHEDULE 3, TO A WIDOWED MOTHER OR A WIDOW ON DEATH OF A MEMBER OF TR FORCES OR TO A MEMBER UPON TITS TOTAL INCAPACITY Column 1 Column ? Columa 3 Pension payable to Pension payable to Pension payable Widowed Mother on Wadow on Death of to Member on Death of Member Member Total Incapacity $ $ $ per fortnight per foxtnight per fortnight 17 1904.49 76.99 l. ... 2. eee 3. Where a member of the Forces 1s temporarily totally uneapacitated to such an extent as to be precluded from earning other than a aogligible percentage of a living wage while he 1s so incapacitated, and where the aggregate of the ra'e of pension payable to that member under Colum 3 of the table in this Schedile and the amount (if any) payable to him under Schedule 5 1s less than the Special Rate of Pension specified in Schedule 2, the Commission may grant an additional pension to a member at a rate not exceeding the amount of the difference between that agyregate sum and that Special Rate of Pension for such period, whether in excess of s2x months or not, as the Commission 'ietermines, 6. Where the incapacity of a member of the Forces 1S such that he 1s unable to earn a living wage by reason that he 1s unable to engage 1n a remunerative occupation except on a part-time basis or unterinittently, the amount specified in Column 3 of the table in this Schedule shall, in ats application in relation to him, be deemed co be $140.30." The impression given by this Schedule confirms that given by the Act as a whole, namely that the incapacity which the legislation has in mind 1s a physical or mental disalility, and any consequent impairment of earning capacity has nao relevance to the rate of pension, unless the Act or the Schedules expressly so direct. Thus for example notwithstanding his total incapacity for the purpose of column 3 of Schedule 1, a member may enjoy full earning capacity notwithstanding his iisability. The corverse 1s also true. He may have a minor physical incapacity but in consequence he is unable to earn a living wage. The three columns of Schedule 1 provide the General Rates of pension and they are referred to as such. Tne rate of pension prescribed by paragraph 3 of Schedule 1] 1s the temporar~ily totally incapacitated rate and shortly referred to as the "T.T.T." rate. Paragraph 6 of the Schedule, which 1s particularly relevant here, 1s referred to as the "Intermediate Rate" of pension. This 1s probably because it 1S between the General Rate prescribed by the three columns of the Schedule 1 ani the Special Rate of Pension provided by Schedule 2. Schedule 2 and the subseqient Schedules prescribe the rates of pension payable to various classes of persons and in respect of various types of disabilities. Apart from the firsk paragraph of Schedule 2 the schedules make no reference to impairment of earning capacity. This first paragraph 1s in the following terms: "The Special Rate of Pension may be granted to nembers of the Forces who have been blinded as the result of War Service, and to members who are totally and permanently incapacitated (1.e. incapacitated for life to such an extent as to be precluded fron earning other thin a negligible percentage of a living wag2)." In so far as 1s relevant to this matter s.27 provides that: "(1) Each Board shall be charged with the duties of - (a) determining whether the r.ncapacity from which a member of the Forces 15 saffering or from which he has died - (i) aun fact resulted from an occarrence that happened daring his war service: (11) ... (i221) ... (iv) ... and un the case of incapacity the nature and extent thereof; (c) ... (d) assessing, from tim? to time, the rates of pensions of members of the Forees and their depondents, and determining the dates of the commencement and cessation of such po2nstions; (e) ... (f) ... (g) ... (h) ... (3) determining whether a member of the Forces 1s permanently unemployable. (2) The Commission may, 1n such cases as 1t thinks fit, make any determination or assessment specified 1n paragraphs (a) to (3) (1anclusive) of the last preceding sib-section, and may, at any time, direct that any particular case or cases or a particular class be referred to it for assessment or determination." Since 1 July 1979 the Act has provided for a review of certain of the decisions of the Board and the Commission by che Repatriation Review Tribunal. Section 107 VZZH provides for an appeal to this Court on a question of law from decisions of the Tribuial and the relevant parts thereof are as follows: "(1) An applicant in a proceeding before the Tribanal or the Commission may appeal to the Tederal Court of Australia, on a question of Law, from any dicision of the Tribunal in that proceeding. (b) ... (3) The Federal Court of Australia has jurisdiction to hear and determine appoals instituted in that Court in accordance with sab-section (1). (4) The Federal Court of Ausi.ralia shall hear ani determine the appeal and may make such order as it thinks appropriate by reason of its decision, (5) Without limiting by impication the generality of sub- section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting th> case to be heard and decided again, either with or without. the hearing of further evidence, by the Tribunal in accordance with the directions of the Court." For the purpose of determining whether the applicant correctly labelled the alleged error of the Tribunal as an error of law, it 1S necessary to consider the Tribunal's reasons for its decision in the laght of the ev.deance befo.e it. Only if the alleged error can be so characterised is this court entitled to intervene. After noting that the applicant had enjoyed an additional pension at the temporarily totally incapacitated rate from 11 July 1977 until 26 January 1978 (which period covered hospital treatment and convalescence) the Chairman enquired of him whether he thought the reduction from the temporarily totally incapacitated rake was premature of was fair in the circumstances. The evidence thereafter was as follows: "MR COLLINS: It was totally premature. MR HARDING: Do you? Why? MR COLLINS: I don't think Lt was warraited. Well, to my reading of the information 1s that 1f you're not earning - 1f your not ina position to earn a liveable tncome then you should Se on T.T.I. or an Intermediate rate sorry. MR MR MR MR MR MR MR Fs MR MR HARDING: COLLINS: HARDING: COLLINS: HARDING: COLLINS: HARDING: COLLINS: HARDING: COLLINS: HARDING: COLLINS: HARDING: COLLTNS: Well could we --- Sorcy just a nonent, you were mentioning T.T.I. rate weren't you- T.T.I. yes. No, I'm sorry, I was thinking of the Intermediate rate, I beg your pardon, Ch well, we'll yet to that - sorry - yes I might have misled you. Taking first of all, you had six months on the T.T.I. equivalent, this was for your operation and six months convalescent. Do you think that you were ready by the end of January 1978, do you think that reduction, the cancellation of the T.T.I., was fair and reasonable at that time - putting you back to the Intermediate rate? For T.T.I. - I think 1t mghtn't have been too bad. At this stag2 I was coming up to take over the audit of the local R.S.L. books - they were having a 4.G.M. (Annual General Meeting) in February - and I was sort of starting to work myself back into doing what I felt I coald do, and this was going to be in the field of audit. Of course, unfortunately, the chapple that had been elected treasurer dicd so I sort of swung straight into treasurer - this was in February well - February? 78. So on that basis I think in retrospect now, T.T.I. reduction would be right because T did in fact do - So your real complaint is that the reduction taking you off the Intermediate rate was premature? That's right. And what would your view be about that? Do you think you still should be on the Intermediate rate ox something inbetween the 60% to which they reduced you and the Intermediate rate? Have you any views on that? My own personal view is that 1 should be on the Intermediate rate in view of the wording that's in the Schedules. You don't think you should have been reduced at all? I don't think 1 should have been reduced at all." Clearly the essence of the applicant's case before the Tribunal was not the assessiment by the Board of his ancapacity at 60%. It was his claim that the p~oper decision was that, 1n consequence of his inability to earn a "liveable income," as he termed it, resulting from that incapacity, he should be on the Intermediate Rate of pension. There is no doubt that when using the expression "liveable income" th? applicant was referring to the words "living wage" in paragraph 6 of Schedule 1. Subsequently the applicant gave evidence generally concerning his earning capacity and his earnings from part-time accountancy. In its reasons for decision the Tribunal mentioned at the outset when stating the applicant's penston history that he had enjoyed the Intermediate Rate of pension trom 21 January 1977, but thereaftec made no reference to that particular rate of pension (or to paragraph 6 of Schedile 1) nor to the applicant's contention that he was entitled to a pansion at this rate, It merely stated that "he considers he should still be on the T.T.I. pension". After considering all the evidence, including the applicant's oral evidence at the hearing, the Tribunal made the following fandings: "The Tr2bunal finds that, in respecx of the applicant's condition during the period prior to the Board's decision of 7 August 1978, the additional evidence is generally an conformity with the medical opinion and other evidence set out in the departmental records that were available to the Board on 7 August 1973 and that the applicant has not overstated his case... The Tribunal is of opinion that the myocardial ischaemia 1s the major disability, that 1t has involved 32 mnajoz change of life-style for the applicant and that both Dr. Thornton ad the Board were a little optimistic as to the applicant's ability to engage in = sustained light work... 10. -..-but the Tribunal interprets the whole picture available to the Board on 7 August 1978 as being that the applicant's real ability was by reason of his accepted heart disability, restricted at best to only part-time rather than full-time, sustained light work. He was _iot fit for saslained light work, such as light bench work or similar, and cven in his light, mainly sedentary -type, accountancy work he was not able to cope without substantial breaks From work. Tho3re was Obviously also very substan'ial interference with his gocial and recreational life." (The underlining 1s that of the Tribunal). The Tribunal went on to say that 1t considered that an assessment of 80% of the General Pate "fairly and justly represents that degree of whole man impairment of capacity caused by the applicant's disabilities" and 1t substituted that assessinent for the Board's assessment of 60%. Thus, although it made findings favourable to the applicant on all aspects of the evidence which he put forward 1n support of his claim to a pension at the Intermediate Rate, the Board appears to have given no consideration to his claim to such entitlement nor any reasons for rejecting that claim. lt may well have given consideration and have 30und grounds for a rejection, but 1t has not said so in its reasons. Ccunsel for the respondent conceded that there was aisthing in the reasons for decision of the Tribunal which expressly indicated that it had given consideration to the provisions of paragraph 6 2f Schedule 1. He also acknowledged that the applicant clearly stated the issue before the Tribunal, namely that he considered he should remain on the Intermediate Rate of pension. The applicant's counsel contented that an error of law was apparent because, in the light of the obligation on the Tribunal under s.107 VK(1) infra to give reasons in writing for its 11. decision, including any findings of fact, ats failure to refer to the applicant's claim to an Intermediate Rate of pension and the supporting evidence indicated that it hai overlooked a relevant consideration, and 1n so doing had erred in law. He cited in support of this contention the views of Deane J. in Sullivan v Department of Transport (1978) 20 A.L.R. 323 at 349, namely: "The Tribunat's Failure to direct its attention to the considerations properly relevant to the determination of 1t was, in the circumStances, understandable. The consequence of that failure is, however, that the proceedings before the Tribunal miscarried in that the Tribunal failed to deal, by reference to the relevant considerations, with a matter which arose for its determination and which it parported to determine." Counsel also drew attention to my reasons in that case at pages 350 to 353, and in particular to the consequences which I held flowed from the failure of the Tribunal to give the precise reasons upon which 1t acted and its findings on material facts. But for the very persuasive argunent of counsel for the respondent I would ve of the opinion that the applicant's Submission was clearly correct, and chat I should remit the matter to the Tribunal with a direction that it give consideration to his claim for a pension at the Intermediate Rate ain the light of the applicant's evidence and any further relevant evidence and of the provisions of paragraph 6 of Schedale 1. However, if accepted, the arguments of counsel for the respondent require a contrary conclusion rejecting the appeal on the groand that this court has no jurisdiction. The respondent's primary submission was that no appeal lay to this court because the Tribunal was not bound to decide the application before it in accordance with law. He basei this 12. argument upon s.107 vG of the Act wnich must be set out in full: "The Trabunal, 1n conducting a proceeding, or the hearing of a proceeding, or in making a decision ina proceeding, on a review - (a) (b) 1s not bound by technicalities, legal forms or rules of evidence; and shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, snall take unto account any difficulties thak, for any reason, lie in the way of ascertaining the existence of any fact, matter, causé or circumstance including aay reason attributable to - (1) the effects of the passage of time including the effect of the passage of time on the availability of witnesses: or (1i)an absence of, or a deficiency in, relevait official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a membex of the Forces was not reported to the appropriate author- ities." It 2S convenient at this stage to set out two additional provisions of the Act relevant to the Tribunal's obligations. Section 107 VH deals with the decision of the Tzribunal as follows: (2) In a proceeding on a review, the Tribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before the Tribunal in the proceeding that was not before the Connission or the Board but woald have been relevant to the making of a decision in the proceeding before the Commission or the Board. On the completion of 1ts consideration in a proceeding on a review - (a) where the decision the subject of the review was a decision refusing a claim ox application for pension - the Tribunal shall set aside the decision unless 1t 18 satisfied, beyond reasonable doubt, that there were insufficient grounis for granting -he claim or application; or (b) an any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would ave mad2 1£ 1t had conducted the proceeding in which the decision was made. ory 13. (3) Where the Tribunal sets aside a decision the sibject of a review, it shall substitute for that decision such decision as the Tribunal considers to be in accordance with this Act. (4) Where the Tribunal does i10¢ set aside a decision the subject of a review, it shall affirm that dscision," Section 107 VK obliges the Tribunal in certain specified circumstances to give reasons for 1ts decisions: "(1) Where, in a proceeding before the Tribunal, the ?ribunal makes a decision relating, in whole or in part, toa prescribed matter, the Tribunal shall cause to be prepared a written record of the decisio1, containing a statement of the reasons for the decision, so far as the decision relates to the prescribed nattc_, including any findings of fact in relation 'o the prescribed matter. (2) ... (3) In this section, 'prescribed matter' means a natter referred to in paragraph (a), (d) or (3) of s ib-section (1) of section 27." The Tribunal in this instance was d2aling with a prescribed matter, namely s.27(1)(d), the assessment of the rate of pansion to which the applicant was entitled, and thus was prima facie obliged to comply with s.107 VK(1). Counsel relied upon s,107 VG to support his submission that the Tribunal was not obliged to proceed in accordance with law. He contended that the direction to "act according to substantial justice and the merits and all the circumstaices of the case" required the Tribunal to determine applications for review in accordance with equity and good conscience of at least principles analogous thereto. On this basis there was, he subuitted, little af any scope for this court to intervene, becaase only 1n most exceptional circumstances could 1t be said that the Tribunal erred in law. He supported his submission with copious aithority referring to the old English Courts of Pequests, Small Debts 14. Courts, the Indistrial Code of South Australia and other legislation where the tribunals in question were directed to arrive at a decision without references to legal standards. In these circumstances, and even in sone instances where an appeal on questionsof law was expressly provided, appellate courts have declined to review the decisions, lowevcr, 1n each of these matters the legislature provided cxpressly and very clearly that the relevant tribunal was to be in its decisions guided only by "equity, good conscience and the substantial merits" or sore very similar criteria. I was referred tu a number of authorities, (Moses v Parker [1896] A.C. 245, Walkley v Daaryvale Co-operative (N.S.W.) 325, Ex_parte M rtin (1896) 13 W.N. (N.S.W.) 66, Scott v N.Z.L.R. 821 KarorzBorough v Buxton {1918) N.Z.L.R. 739 Ellicott v Hamilton (1374) 2 N.Z. JUR 95, Pearson v Clark (1864) Mccassey's Reports (N.Z.) 136, Skinner v Singh (1913) 40 Indian Appeals 106), but first it 1S necessary to determine whether the Tribunal, as also the Commission and the Board, is entitled to igiore principles of law and the provisions of the Act and to act as would a "court of conscience". Such a decision mast be made upon a careful consideration of the relevant provisions of the Act, which provisions, I find,are strongly persuasive to thea contrary. In the first instance it 1s relevant to note the approach of the majority of the High Court in R v War Pensions Entitlement Appeal Tribunal and Another Ex parte Bott (1933) 50 C.L.R. 228 when considering legislation very similar to s.107 VG bat which has one significant difference. Section 45 W (2) of the then 15. fe) Repatriation legislation was the section corresponding t s.107 VG and was in the following terms: "Subject to this Act, a? appeal tribunal... shall 201, in the hearing of appeals, b> bound by any rules of evidence but shall act according to substantial justice and the merits of th ca3ze..." (my under lioing) In contradistinction to the present legislation s.45 W (2) thus expressly indicated that the darrection to act according "to substantial justice and the merits of the case" was sabject to the provisions of the Ack. Mr. Justice Starke made the following comments on the obligations of the Tribanal in hearing appeals at p.249: "But sec.45W(2) enacts that sidjeck to the Act, ai Appeal Tribunal shall nor, in the heariny of appeals, be bound by any rules of evidence, but shall act according co substantial justice and the miits of the case (cf Moses v Parker; Ex parte Moses {18961 ~A.c. 245). No doudt,'when the duty of deciding an appeal 1s imposed, those whose duty it 1s to decide it must act judicially. They must deal with the question referred <2 Fhem without bias and they must give to each of th-= parties the opportunity of adequately presenting the case maid*+, The doecrs'on mast be come to in the spirit and v.th the sense f responsibility of a tribunal whose duty 1t 1s to mete out justice. But 1t does not follow that the procedase of every such tribuial must be the same. In the case of a Court of law tradition... has prescribed certain principles to which in the main the procedure mist conform, But whak that procedure 1s to be 1n detail must depend on the nature of the tribuial'. (Local Governnent. Board v Ar lidy= {1915} A.C. 120 at p.132). Rules laid down by the Act must be observed decause they are imposed by the Act and tor no other rea3on." No doubt 1t may be said that in that case the rules made by the Act had to be observed even in counection with the hearing of apps als and notwithstanding the direction to act "according to substantial justice and the merits of the case", because the latter direction was expressly "subject to this Act". However when the legislature goes to lengths and in particular to sash considerable lengths as 1t does tn che present Act to presccibe in great detail the amount and the 16. circumstances of entitlements, it would be surprising indeed if these prescriptions could be iagnoxved in rel1rance upon the "substantial justice and merits" provision. Rathez one would expect to find express introductory words such as introduce the "equity good conscience and substantial merits" provision in s.51 of the Industrial Code 1967 (S,A.) namely "notwithstanding anything in this Act or in any other law or any practice to the contrary". Since the hearing of this appeal the Full Court of the Federal Court has handed down, on 14 August 1933, its jadgnent in The Repatriation Commission v Nancy Law, affirming the decision of Toohey J. I do not propose to rfer to the reasons of the judg- ment of the court in any detail, but rather to note merely that 1t 18 very apparent that they are wholly based on the obligation of the Tribunal to obServe the provisions of the 2ct. Such an obligation denies it the right to att in accordaice with equity and good conscience. I would also refer to the comments of Isaacs J. (as he then was) in British Imperial 011 Company Ltd v Federal Cormiss1oner of Taxation (1925) 35 C L.R. 422 at p.438. After referring to the provision in the Income Tax Assessment Act 1922 to the effect that a Board of Appeal (the predecessor to the present Boards of Review) was not "bound in 1ts consid?cation of any quescion by any rules of evidence, but in forming 1ts decision shall be giided by good conscience and the facts of the case", His Yo nour distinguished Moses v Parker supra, an authority here relied upon by the respondent, on the basis trat the Tribunal there under consideration was "expressly exonerated from all rules »f law and 17. practice". In reference to the abovementioned powers of the Board of Appeal he said: "It cannot be maintained here that, by virtue of the words relied on, the Board 1s absolved from all rales of law, as, for instance, the express provisions of the Taxing and Assessment Acts themsclves..." In my opinion the position 1s equally clear in this matter before me. There are additiznally, an my opinion, in the Act a sub- stantial number of positive indications which point contrary to the defendant's submission. Tnere 1s of course no specific direction to act in accordance with equity and good conscience, and 1t 18 crucial to the respondent to equate those terms with "substantial justice and the merits". My view that Ihey are not in parl materia receives support from the judgnent of Fvatt J. {the dissenting judge) 1n Ex parte Bott supra at p.25% where his view was in effect that they accorded with the principles of natural justice. It can hardly bo in azcord with natural justice to deny an applicant an express entitlement under the Act, 1f he be otherwise entitled co it. Clearly s3.35 and 101 impose a liability upon the Commonwealth to pay a pension to the applicant in accordance with tye rules laid down in the Schedules. LCqually the applicant 1s entitled to receive such a pension. M>reover notwithstanding the words "without limiting the generality of the foregoing" in s.107 VG (b), I see what follows as indicating the types of circumstance in which the 'ly ibinal 1s to proceed according to "substantial justice and the merits". 1 an far from satisfied that in making its ultimate decision on the review the Tribunal is entitled to act only in accordance with thescriteria, and I am of the opinion that the words "in making a decision in a proceeding" embrace rather adecision made daring th- conduct of the proceedings. 18. My opinion that the Tribunal 1s required to act in accordance with law, that 1s within the confines df and in aztcordanice with the Act, receives support from other provisions of the Legislation. The fact that the amount of the pension to which an applicant is entitled is not at larg= but 1s to be determined by the Act receives support from ss.101 and 35 aid the detalled provisions of the Schedules. Likewise the obligation of the Tribunal under s.107 VH (3) when it sets aside 2 lecision which it 1s reviewing 1S to substitute "such decision as the Tribunal considers to be in accordance with this Act". There 1S no warrant here to depart from the provisions of the Act. That the Tribunal 1s as a matter of law obliged to act in accordance with those provisions receives fusther support from the provision of a right of appeal lamited to an error of law (s.107 VZZH), the raght to refer a question of law to this court for decision and the obligation thereafter not to "proceed 1n a manner, or make a decision, that 1S inconsistent with the opinion" of this court (s.107 vZZG (1) and (4)). I refer also to the right of the President of the Tribunal to refe: a decision under review to the Administrative Appeals Tribunal (s.107 VZZB), which latter body without doubt 1S required to act in atcordance with law. All of these provisions would be quite pointless and of no possible profit 1f£ the Tribunal was entitled to act other than in accordance with the Act. Finally I refer, as supporting the obligation so 'Lo act, to the requirement that in certain circumstances, namely when entitle- ment, assessment or permanent unemploy:ncnt 1s under consideration, the tribunal must give reasons for its jecision including any findings of fact (s.107 VK). Such a provision 1s obviously in aid 19. of a possible appeal, and the giving of reasons for its decision can have no significance 1f the Tribunal was entitled to make ats decision on some arbitrary basis. In my opinion the undoubted conclusion to be drawn from the above 1s that the Tribunal has no charter to act in making its decision in accordance with "equity and good conscience" but 1s obliged to comply with the provisions of the legislation. It follows that the authorities to which counsel for the respondent referred have no application to the functions of the Tribunal or restrict an any way the right of appeal if an error of law be established. Counsel's further submission was that if, contrary to his primary contention, there was a right of appeal on an error of law, no such error had been established here. He said that I was not entitled to assume, as was assumed in Sullivan v Department of Transport supra, that the silence of the Tribunal in respect of the applicant's claim to an Intermediate Rate pension indicated that it had given no consideration to a relevant matter. Rather I should assume that proper consideration had been given resulting in a rejection of the applicant's claim. He supported this submission by pointing to what he said was a crucial difference between the obligation to give reasons under the Administrative Appeals Tribunal Act and the corresponding provision in the Act. The Administrative Appeals Tribunal 1s obliged not only to give its reasons 1n writing for its decision, but those reasons must"1include ats findings on material questions of tact and a reference to the evidence or other material on which those findings were based", (s.43(2) of the former Act). The corresponding provision in the Act (s.107 VK(1)) departs from s.43(2), requiring only "a statement 20. of the reasons for the decision... imcluding any findings of fact in relation to the prescribed matter". The latter provision, it was said, did not require the Tribunal to give all its *indings of fact, but only those which it decided to supply. In any event the obligation to give reasons was of no great significance, but was "merely a mandate to think about what it is doing to the extent that it has to put something down in writing." I can not accept either of these submissions. As to counsel's last mentioned point, 1t 1s not correct to say that the obligation to give reasons is of no great significme. In my opinion such an obligation 1s essential 1f there 1s to be an effective appeal on an error of law. Without such a provision 1t would be impossible for the appellant or this court to discern whether the Tribunal erred, assuming it did err, in law or in fact. In Iveagh v Minister of Housing and Local Government {1964} 1 Q.B. 395 at 410 Lord Denning emphasised the importance of the obliga- tion to give reasons when he said of a similar provision: "The whole purpose of the enactment 1S to enable the parties and the courts to see what matters he (the Minister) has taken into consideration and what view he has reached on the points of fact and law which arise. If he does not deal with the points that arise, he fails in his duty:and the court can order him to make good the omission." Russell L.d. made a similar comment during argument in that case at p.405 when he said: ",.. the purpose of requiring the Minister to give the reasons for his decision is to enable anyone interested to see whether there is... in law a fault in his process of reasoning, so that they may attack the decision." There 18 a similar section to s.107 VK in the Tribunals and Inquiries Act 1958 of the United Kinadom which was considered in Re Poyser and Mills' Arbitration figsa| 2 Q.B. 467 by Megaw J. (as he then was) at p.477: 21, "The whole purpose of s.12 of the Tribunal and Inquiries Act 1958 was to enable persons whose property, or whose anterests, were being affected by some administrative decision or some statutory arbitration to know, 1f the decision was against them, wnat the reasons fot it were. Up to then people's property and other interests might be gravelyaffected by a decision of some official. The decision might be perfectly right. but the person against whom 1t was made was left with the real grievance that he was not told why the decision had been made. The purpose of s.12 was to remedy that... Parllament provided that reasons shall be given and tn my view that must be read as meaning that proper adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised." It 18 pertinent to note that s.12 of the latter legislation only required reasons to be given, and not facts. Irrespactive therefore of the difference between the requirements of the Act and the Administrative Appeals Tribunal Act in respect of the obligation to indicate facts, the above statements of the law are applicable to the present matter. The Tribunal was obliged in this present matter to comply wath s.107 VK and provide the applicant with a statement at least of its reasons for 1ts decision to reject his claim. As to the second submission based on the fact that the Tribanal was required to state "any" and not "all" findings of fact, I do not see its obligation as different, to any significant extent, from that of the Administrative Appeals Tribunal. Indeed it would be surprising 1f it was different, in the light of the fact that the President of the Tribunal had a discretion to refer the application to the latter Tribunal. However the use of the word "any" does not entitle the Tribunal to include a statement of only some of the facts found, but requires a statement of all facts to be given. "Any" in this instance means "all, if any". I refer to Victorian Chamber of Manufacturers v The C.mmonwealth (1943) 67 C.L.R. 335 per Williams J. at 346: 22. "The authorities to which Mr. Ham referred, Liddy v Kennedy, Isle of Wight Railway Co v Tahourdin and other authorities cited in Stroud's Judicial Dictionary %nd ed. and supplement, under the word "any", show that "any" 2s a word which ordinarily excludes limitation o qualification and which should be given as wide a construction as possible. 'Any goods! therefore includes all goods except where this wide construction 1s limited by the subject matter and context of a particular statute." In my opinion, if the Tribunal found certain Cacts which denied the appellant's entitlement to a ponsion at the Intermediate Rate, it was obliged to state these facts. Likewtse it was obliged to give its reasons for denying the appellant this entitlement. At it has failed to state any such facts or give any reasons, this court 1S entitled to assume, as is the appellant, that it failed to give consideration to a material matter which arose for deter- mination. Counsel for the respondent contended that the Tribunal was justified in concluding that the appellant had tho capacity to earn a living wage. That may well be so, though it appears to fly in the face of the evidence and its own specific findings, but the crucial thing from the point of view of this coirt as that 1t has not expressly said so. The proceedings Lherefore have miscarried, and this court should intervene as an error of law has arisen. The appropriate order is that the matter be remitted to the Tribunal for re-heating in the light of these reasons and any further evidence which may be presented. I allow the appeal with costs and I direct that the matter be remitted to the Tribunal to be heard and decided again in the light of my decision, with the hearimy of such further evidence, if any, as may be presented to tho Tribanal. | certify that this and tne o/ preceding pages are a true copy of the Reasons for Judgment of Mr Justice YL fA /5 rn iate Dated 7 Sef bos (780 septa