CATCHWORDS Administrative law - judicial review of decision of Repatriation Board - refusal of widow's claim for pension - whether Repatriation Board failed to apply correctly principles of Repatriation Commission v. Law (1980) 31 ALR 140 - relevance of pending judgment by High Court in Law's case - appropriate directions to Board. Administrative Decisions (Judicial Review) Act 1977 ss. 5(1), 5(2), 7(1), 10(€2)(b) (ii), 16. Repatriation Act 1920 ss. 24AA, 24AB, 26, 28, 47(1), 47(2), 101, 107VG, 107VH MONA OT.TVE KELLY Applicant JOHN BRENDAN COATS, WILLIAM KENT O'BRIEN and LESLIE PHENNA together comprising a REPATRIATION BOARD Respondents W.A.G. No. 9 of L981 TOOHEY J. AT DARWIN THURSDAY 10 SEPTEMBER 1981 WESTERN AUSTRALIA DISTRICT REGISTRY W.A.G. No. 9 of 1981 ee GENERAL DIVISION { po 1 IN THE FEDERAL COURT OF AUSTRALIA | | 4 BETWEEN: MONA OLIVE KELLY , - Applicant AND JOHN BRENDAN COATS, WILLIAM KENT O'BRIEN and LESLIE PHENNA together comprising a REPATRIATION BOARD - Respondents CORAM : Toohey J. 10 September 1981 AT DARWIN REASONS FOR DECISION | This is an application under the Administrative | Decisions (Judicial Review) Act 1977 to review the decision of the respondents, a Repatriation Board, upon a claim by the applicant for a pension under the Repatriation Act 1920. The applicant's husband died on 17 May 1980 and the applicant sought a pension under the provisions of s.101 of the Repatriation Act on the ground that her husband was a member of the Forces whose death arose out of or was attributable to his war service. SN The procedural pattern under the Repatriation Act is that a claim for a pension is made in accordance with an approved form, accompanied by evidence available to the claimant (s.24AA). When a claim is lodged, the Secretary of the Department causes an investigation to be made into the matter. After completing his investigation the Secretary submits the claim to a Repatriation Board for consideration and determination. That claim is accompanied by any evidence furnished by the claimant together with all relevant records and documents under the control of the Department and a report of the result of the investigation carried out (s.24AB). Section 26 contemplates that a Board may summon witnesses, take evidence on oath and require the production of documents. In practice, I was told, those powers are not exercised; rather a Board relies upon the material submitted to it. In the present case the Board, having considered the material before it, refused the application. Pursuant to s.28 of the Act, the applicant lodged notice of appeal to the Repatriation Commission from that decision. The applicant has not sought to proceed with that appeal pending the outcome of the present application. In a judgment delivered on 20 May 1981, I declined to exercise the power conferred by s.10(2)(b) (ii) of the Judicial Review Act to refuse to grant an application if adequate provision is made elsewhere for a review of the decision under attack. This had the effect of allowing the present application to proceed. The applicant has chosen to challenge the decision of the Board by relying upon s.5(1) of the Judicial Review Act. This has certain consequences including of course the need to establish one of the grounds to be found in that sub- section. The applicant relies upon four grounds - that the making of the decision was an improper exercise of power (para.(e)); that the decision involved an error of law (para. (£)); that there was no evidence to justify the making of the decision (para.(h)) and that the decision was other- wise contrary to law (para.(j)). Sub-section (2) of s.5 spells out the reference in sub-s.(1)(e) to an improper exercise of power to include a number of considerations. Of these, the applicant relies upon - taking an irrelevant consideration into account (para.(a)); failing to take a relevant consideration into account (para.(b)) and unreasonable exercise of power (para. (g)). In the main the applicant's challenge was based on the Board's alleged failure to apply correctly the principles enunciated by the Federal Court in Repatriation Commission v. Law (1980) 31 ALR 140. That appeal concerned the entitlement of a widow of a member of the Forces to a pension consequent upon his death. Having reviewed the various provisions of the Repatriation Act, the Court expressed the proper approach to such claims in these terms: wm Ta ntact ee at ae "Where the death of an erstwhile member of the forces might have arisen out of war service or might be attributable to it, a pension cannot be refused unless it is proved beyond reasonable doubt that his death was not so related to his war service. The scheme of the Act is not to establish an adversary method of determining claims and applications, but to have the Department make the relevant investigations and then require that, if there is some evidence that the claimant is eligible to receive a pension, a pension be paid unless the investigations or the course of the proceedings throw up information which establishes beyond reasonable doubt that a pension is not payable" (at p.152). Law's case concerned a decision of the Repatriation Review Tribunal whereas the present proceedings relate to a decision of a Repatriation Board. However, the Repatriation Act requires the Tribunal and the Board to approach a claim in the same way. 'In particular, the requirement in s.107VH that the Tribunal shall set aside a decision refusing a claim or application for pension "unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application", has its counterpart in s.47(2) when a claim is before a Board. Likewise, the pro- visions of s.107VG prescribing that the Tribunal is not bound by technicalities, legal forms or rules of evidence and requiring it to act according to substantial justice and the merits and all the circumstances of the case including an obligation to take into account any difficulties that may arise by reason of the passage of time or the absence of records, is comparable to s.47(1) of the Act. I see no reason why the principles and approach suggested by the Court in Law's case are not in point here; the respondents did not argue otherwise. The applicant conceded that it was not open to this Court in these proceedings to grant her application for a pension. What she submitted was that in exercise of its powers under s.16 of the Judicial Review Act, the Court should quash the decision of the Repatriation Board and refer the matter to the Board for further consideration with a direction that the application for a pension be granted. The respondents, while contending that their decision was in accordance with the principles in Law's case and was not otherwise open to challenge, submitted that if the Court thought differently the proper course was to quash the decision and refer the matter to the Board for further consideration. I did not understand counsel for therespondents to be saying there - should be no accompanying direction; rather that the matter should not go back in such a way as to deprive the Board from fulfilling' its statutory function of considering and determining a claim. The matter generally is complicated by the absence of a decision from the High Court on the appeal brought by the Repatriation Commission against the decision of the Federal Court in Law's case. It is common knowledge that a number of applications under the Repatriation Act, at various stages of consideration or review, have ground to a halt until the views of the High Court are known. Indeed in the present proceedings counsel for the respondents submitted that this application should be adjourned to await the outcome of the decision in Law's case. Counsel pointed to some of the difficulties that might result from not acceding to this suggestion. For instance, if I take the view that the Board failed to apply Law's case and that its decision should be quashed with a reference for further consideration, and if later the High Court adopts a different approach to that taken by the Federal Court, the matter will once more have to be considered by the Board and possibly by this Court. Furthermore, if a decision to grant a pension results in the payment of a lump . sum in respect of arrears accrued and periodic payments thereafter, the Commonwealth will be unable to recover any over- payment, it having been made under a mistake of law not of fact. I express no view on that proposition; it was not argued. These difficulties were referred to by Fisher J. in Thornton v. The Repatriation Commission (unreported decision delivered 10 June 1981). There his Honour was concerned with the question whether a failure by the Repatriation Commission to make a decision on an application for a pension (the Commission having decided to defer consideration of Mrs. Thornton's appeal pending the outcome of a decision in Law's case) was an unreasonable delay within s.7(1) of the Judicial Review Act. Fisher J. held that it was not. The present case is quite different. There has been a decision and an application to review that decision. A decision to adjourn or not adjourn a case is tts susceptible to review by a higher authority although it "is a matter prima facie entirely within the discretion of the judge" (Re _Yates' Settlement Trusts (1954) 1 All E.R. 619 at p.621). In that case the Court of Appeal set aside a decision by a judge to adjourn a case until the outcome of an appeal having a bearing on matters raised before the judge. The court did so because of the special circumstances, SN in particular that the settlor of the trust had not long to live and that an adjournment might result in an injustice to the parties if he died before the application was heard. Underlying the judgments of the court is the principle that ordinarily a judge should proceed to deal with the matter before hi even though a higher court may be in the course of considering or about to consider relevant questions of law. "The law has been stated by this court ... and the judge should have applied the law as there laid down without any misgivings as to what the House of Lords may hereafter say." (Denning L.J. at p.622) See also Dean J. in R. v. Whiteway (1961) V.R. 168 at p.171. Despite the possible difficulties referred to earlier, I am of the opinion that I should not adjourn the application but should decide it. The decision of the Federal Court in Law's case is the unanimous decision of three members of the court. While in no way pretending to anticipate what the result of the appeal to the High Court may be, there are good reasons for proceeding rather than allowing this matter to be put into limbo, even if temporarily. Borrowing the language of the court in Law's case, the applicant's argument was that on the material before the Board it must be said that the death of her husband might have arisen out of his war service or might be attributable to it. Therefore a pension could not be refused unless it was proved beyond reasonablc doubt that death was not related to war service. In the appli- cant's submission, the respondents had failed to apply this approach and therefore the decision could not stand. From the post-mortem report it was clear that the cause of Mr. Kelly's death was myocardial infarction due to ischaemic heart disease, a reduction in the blood supply to the heart muscles due to atherosclerosis of the coronary arteries. Atherosclerosis is a disease of the arteries. While its cause is unknown, there are certain risk factors associated with it, including age, environment and cigarette smoking. The cause of death was of recent origin and was not due to an occurrence during service. Mr. Kelly was a non-smoker before enlistment, acquired the habit of smoking during his service and was a heavy smoker in 1976. He had overseas service. Rheumatic fever, a condition from which he suffered as a child, recurred seven months after his enlistment. This disease was described by a departmental medical officer as "a serious debilitating disease'. In the opinion of the medical officer, Mr. Kelly's war service was "stressful in nature", According to his widow, he was highly strung on discharge from service. In the view of the medical officer a causal chain was established provided certain premises were accepted. "(1) Cigarette smoking is a manifestation of neuroticism. (2) The widow's statement as regards cigarette smoking and the member's mental state is accurate. (3) The member's smoking habit persisted from discharge until his first heart attack in 1976. (4) The member's service was stressful." In reaching its decision, the Board took into account the report of the medical officer and other material before it. The Board referred to the heart disease first manifesting itself in 1976, to the absence of evidence of the deceased's post war health prior to 1976 and, although accepting the applicant's statement that her husband began smoking on service, said that there was no evidence to suggest that he began smoking because of his service. It concluded that there was nothing to support the applicant's claim that her husband was highly strung on discharge and indeed expressed the opinion that it did not consider his overseas service to have been unduly stressful. It finished with these words: "In the light of the evidence, the Board is satisfied, beyond reasonable doubt, that there are insufficient grounds for allowing the claim that the member's death was related to his service." The respondents did not contend that the mere adoption of the language of the last paragraph precluded this court from enquiring into the basis of the decision. They submitted that they had in fact correctly applied the principles in Law's ease although not referring expressly to that decision. The applicant's attack upon the decision can be summed up in this way. 1. In that the deceased was a non-smoker before enlistment, acquired the habit during service and was a heavy smoker in 1976, had overseas service, was afflicted by rheumatic fever (a serious debilitating disease), and was highly strung on discharge and insofar as cigarette smoking is a manifestation of neuroticism, the Board could not have been satisfied beyond reasonable doubt that there were insufficient grounds for granting a claim. ~~ 10 2. The Board proceeded on the basis that it was necessary for there to be evidence that the deceased began smoking because of his service, was highly strung on discharge and suffered a reaction to stress on service or during the post-war years, when it should have proceeded on the basis that even if there was no evidence as to these matters, it could not be satisfied beyond reasonable doubt that they did not exist. . 3. The Board failed to give any or sufficient weight to the applicant's statement regarding the deceased's smoking habits and to the opinion of the departmental medical officer that by any criteria the member's service was stressful and that the habit of smoking is a manifestation of neuroticism. In effect, I take the applicant to be saying that the Board approached the matter on the basis that a claim had to be made out and that notwithstanding the opinion of the medical officer, there was other evidence, albeit of a negative nature, justifying a conclusion that there were insufficient grounds for allowing a claim that death was related to service. Nowhere can one find in the decision of the Board language, either express or implied, indicative of the approach taken by the court in Law's case. In particular the Board did not approach the matter asking itself whether the death of the applicant's husband might have arisen out of war service or might be attributable to it. If it had and had answered the question "yes", then a pension could not have been refused unless it was proved beyond reasonable doubt that death was not so related to war service. A consideration of the Board's decision suggests rather a weighing of the evidence and a conclusion that the opinion of the medical officer was off-set by other considerations. In my view this was an incorrect approach. It assumed wrongly that there was an onus on the applicant to make good her entitlement to a pension. That is not the way the Repatriation Act works. Naturally the Board must have before it some evidence but so long as that evidence warrants a conclusion that death might have arisen out of war service or might be attributable to it, a pension must be granted unless the Board is satisfied beyond reasonable doubt that death was not related to war service. The Board did not take that approach and its decision should not stand. The matter must go back to the Board for further consideration with such directions as may be appropriate. In my view a direction to grant the applicant a pension is not appropriate. I say that for several reasons. To begin with, the court did not have before it all the material before the Board. Indeed I had only the Board's decision although that incorporated the substance of the medical officer's report. The Board has the power to acquire further information by exercising the powers given to it by s.26 of the Act. It may choose not to exercise those powers but it should not be deprived of the opportunity if on further consideration it seems appropriate to do so. This claim has not been through the review machinery through which Mrs. Law's claim was taken. And it does not come before the court by way of appeal. Nor is the outcome so inevitable that the Board should be deprived of the opportunity to reconsider the matter. ners ee annem ae oe I shall hear counsel on the terms of the formal order but my decision is: 1. The determination of the Board upon the applicant's claim be quashed. The matter be referred to the Board for further consideration in the light of the'decision in Repatriation Commission v. Law (1980) 31 A.L.R. 140, in particular the principles expressed in the following paragraph from the judgment of the Court at p.152 "Where the death of an erstwhile member of the forces might have arisen out of war service or might be attributable to it, a pension cannot be refused unless it is proved beyond reasonable doubt that his death was not so related to his war service. The scheme of the Act is not to establish an adversary method of determining claims and applications, but to have the Department make the relevant investigations and then to require that, if there is some evidence that the claimant is eligible to receive a pension, a pension be paid unless the investigations or the course of the proceedings throw up information which establishes beyond reasonable doubt that a pension is not payable." I certify that this and the clwen preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Tech M.M, Podobrik Associate jDated: 10 September 1981 i