Repatriation - pension - whether incapacity resulted from eccurrence during special service or arose out of or was attributable to war service - haemorrhoid = aetiology known - lack of medical evidence as to particular cause - multiple lipomata - aetiology unknown - whether comnection between disease and particular factor fecessarily excluded - necessity to have regard to all evidence Repatriation Act 1920 ss.107M, 107VH Repatriation (Special Overseas Service) Act 1962 ss. 6,7 THE REPATRIATION COMMISSION v. ROBERT STEWART No. WA G17 of 1984 TOOHEY J. PERTH 2 JULY 1984 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G17 of 1984 ON APPEAL FROM THE REPATRIATION REVIEW TRIBUNAL BETWEEN: THE REPATRIATION COMMISSION Applicant and ROBERT STEWART Respondent Oo R D E R JUDGE MAKING ORDER 2 Toohey J. DATE OF ORDER 3 2 July 1984 WHERE MADE : Perth THE COURT ORDERS THAT: 1. The appeal be allowed to the extent that the decision of the Repatriation Review Tribunal dated 17 January 1984 that the Commonwealth 15 liable to pay to the respondent, in respect of his incapacity from multiple lipomata, the pension payable under Division 1 of Part III e OS we pPaceé wit Sete T matter remitted to the Tribunal determined according to law. 2. Liberty to apply as to the costs appeal. alas ie, Lot eo es te bet tae Bocas ce Ay tte the IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION CORAM: TOOHEY J. 2 July 1984 No. WA G17 of 1984 we ewe ON APPEAL FROM THE REPATRIATION REVIEW TRIBUNAL BETWEEN: THE REPATRIATION COMMISSTON Applicant and ROBERT STEWART Respondent REASONS FOR JUDGMENT On 17 January 1984 the Repatriation Review Tribunal set aside a decision of the February 1982 and substituted its own decision that: "1, the Repatriation Commission's rejection of the claim for incapacity from presbyopia be affirmed; in respect of the possible further eye incapacity from serous retinopathy the proceeding be adjourned pursuant to Section 107VZ; Repatriation Commission given on -- GM AmB Let ot ovewtede Loeb, and pursuant to section 6 of the Repatriation (Special Overseas Service) Act and section 107M of the Repatriation Act, the Commonwealth is liable to pay to Robert STEWART in respect of his incapacity from haemorrhoids and multiple lipomata, the pensions payable under Division 1 of Part III of the Repatriation Act on the incapacity of a Member of the Forces". There is no appeal from the Tribunal's decision relating to the claim for incapacity from presbyopia or the possible further eye incapacity. But the Repatriation Commission appeals against the decision of the Tribunal that there is a liability for incapacity from haemorrhoids and multiple lipomata. The notice of appeal identifies as the questions of law raised on the appeal: "(i) Whether the Repatriation Review Tribunal may find an entitlement to pension payable under Section 6 of The Repatriation (Special Overseas Service) Act 1962 and Section 107M of The Repatriation Act in the case of the incapacity of amember of the forces where the evidence does not disclose and alternatively the Tribunal does not find a real or rational possibility of a relevant relationship between the incapacity and the special service. (ii) Whether in reaching its decision the Tribunal could and alternatively could in the circumstances of the case reject uncontradicted expert evidence. (221) Whether the Tribunal is at liberty to construe the effect of a decision of the High Court of Australia in away inconsistent with subsequent decisions of the Federal Court of Australia on appeal from the Tribunal." The grounds of appeal reflect the questions of law thus identified though reference to those grounds will be necessary in the course of these reasons. The context in which Mr. Stewart's entitlement to a pension was decided is a little unusual, involving as it does two statutes. The Repatriation (Special Overseas Service) Act 1962 provides benefits for certain members of the defence force who served on "special service" outside Australia. Sub-section 6(1) imposes a liability on the Commonwealth, subject to the Act, to pay to a member of the Forces whose incapacity "has resulted from an occurrence that happened during a period of special service of the member" a pension in accordance with Division 1 of Part III of the Repatriation Act 1920 as applied by s.7 of the 1962 legislation. This legislation applied to Mr. Stewart in respect of his service from 30 June 1971 to 4 July 1972 with the Australian Army Training Team in Vietnam. Because of his defence service from 7 December 1972 until 12 July 1980, Mr. Stewart also came within s.107M of the Repatriation Act which imposes on the Commonwealth a liability to pay a pension to a member whose incapacity "has arisen out of, or is attributable to, his defence service". a Mr, Stewart has hada long medical history, much of which is irrelevant to the matters now before the Court. In considering the relevant medical evidence, a useful starting point is two reports by Dr. Godkin, a departmental medical officer. Both reports are dated 23 January 1981 and, to all intents and purposes, are identical. There are two reports because of the two statutes under which a pension was claimed. Dealing first with the claim based on haemorrhoids, Dr. Godkin said: "No specific factors are evident and the condition 1s due presumably to a congenital anomaly of the veins in the area". Dealing with the claim based on multiple lipomata, Dr. Godkin said: "a. Tumours of fat tissue. b. There 1s no known cause. Multiple lipomta are uncommon, c. but are a well recognised entity and the peak incidence is between the ages 14-40. Single lipomata commonly occur". Dr. Godkin was of opinion that neither condition was related to Mr. Stewart's eligible periods of service but, because of the way in which the entitlement to compensation is framed in each Act, he dealt with this particular aspect in somewhat different terms in each report. weal ily "le tb wills oss GuUoesehot., afr cast lS 41.4 Gl spsnton, the incapacity arose from an occurrence that happened during the eligible period of service (a reference to the (Repatriation Speical Overseas Service) Act), Dr. Godkin reported: "No. All arose after service and none is due to an occurrence during eligibility". Asked in terms of the Repatriation Act whether the incapacity arose out of or was attributable to defence service, Dr. Godkin reported of the haemorrhoids: "No this is very common in the general community and service condition cannot be incriminated, including field exercises as claimed". and of the multiple lipomata: "NO. As far as is known, no environmental factor is involved in the aetiology of this condition". So far as the complaint of haemorrhoids is concerned, the recorded history appears to begin on 13 July 1973 when there was a diagnosis of a thrombosed external pile. That was during the period of Mr. Stewart's defence service. On 6 November 1974 (again during the period of defence service) reference was made to Mr. Stewart having noticed 3 lumps on his' body some 12 months earlier and other lumps since then. On examination, lipomata were observed over the 12th right rib and the front of the right thigh. ocd A5 Dra ea OL fl '1 L$ ' ? ; i ' § Pa ' t s " t t- that same month. Counsel for the applicant referred to lipomata as "small benign lumps of fatty tissue, a kind of tumour, but not in any sense malignant or cancerous, 1f one uses that term in a way that relates to life threatening problems". Harrison's Principles of Internal Medicine (10th ed) 262 contains this statement: "Lipomas, relatively common causes of subcutaneous nodules, are benign tumors composed of adipose tissue and may be single or multiple and are frequently lobulated; they are often rubbery or compressible and occur most often on the trunk and back of the neck and forearms". On 16 February 1976 there was a provisional diagnosis of internal haemorrhoids. On 1 February 1978 Mr. Stewart underwent external haemorrhoidectomy. On 27 November 1979 he made a statement in support of a claim for medical treatment and pension, in the course of which he specified disabilities resulting from a variety of matters including "Piles ... Lipomata Recurrent ..."". On 6 February 1980 three lipomata were excised from Mr. Stewart's right arm and one from his right thigh. On 28 February 1980 Mr. Stewart made a further written statement, apparently in support of his claim. He referred to various disabilities; as to those the subject of the present appeal. he commented: "Piles: These were first noticed in July 1973. I consider these may have developed as a result of field exercises over Long periods. Recurrent Lipomata - First developed 6-12 months after return from Vietnam aithough first treatment was not until November 1974. This was because they have to wait until the lipomata reach sufficient size for removal (i.e. about 2 years). I consider that exposure to Agent Orange in Vietnam may have been responsible". On the same day Mr. Stewart completed a questionnaire headed "Initial Data Base - Possible Exposure to Toxic Chemicals". In that document he referred to periods and places of service with the Australian Army Training Team in Vietnam, alleging "numerous" exposures to aerial sprays. He said he noticed no symptoms at the time but later symptoms were lipomata in 1974, headaches in 1974 and defective vision in 1976. The two latter conditions are not the subject of these proceedings. On 25 March 1980 Dr. Goatcher, a surgeon, reported that it was likely that further lipomata would develop and that, although small haemorrhoids had been removed, it was likely that the condition of pruritus (itching) would continue. On 28 March Dr. Goatcher commented that there was nothing in Mr. Stewart's history "suggestive of the Agent Orange". ~~ = fee ke wie mee 6 Daas. ese See eee pee FL eit, reported on Mr. Stewart's various complaints. In the course of this he referred to the haemorrhoidectomy and also to the recurrent lipomata, observing that there were multiple small lipomata in the buttocks and loin. As to the lipomata, Dr. Johnson commented: »». the aetiology of these is unclear - I am not aware of any association with exposure to chemicals but this may prove to be so". On 26 May 1980 Mr. Stewart completed a further statement in support of his claim for medical treatment and pension. The disability then claimed was in respect of deafness and pruritus. The only relevance of this statement to the present appeal is, I think, that in relation to the pruritus, Mr. Stewart said "End result from having piles continuous through eating hard rations and living in damp conditions". On 9 June 1980 Mr. Stewart completed yet another statement in support of a claim for medical treatment and pension; this time the disability claimed was headaches. It would seem that these various claims were the subject of the composite reports by Dr. Godkin to which reference has already been made. On 26 June 1981 a Repatriation Board dealt with Mr. Stewart's various disabilities, treating some of them as compensable but rejecting any incapacity resulting from haemorrhoids or multiple lipomata as not related to service, Pa) In October 1981 Mr. Stewart appealed to the Repatriation Commission inter alia against the decision disallowing his claim for haemorrhoids and multiple lipomata. On 25 February 1982 the Commission rejected the appeal. It was that rejection which was the subject of the Repatriation Review Tribunal's decision, now before this Court. The Tribunal heard from Mr. Stewart in person and apparently had further reports from Dr. Johnson, Dr. Haberfeld, a dermatologist, Dr. McLaren, a psychiatrist, Dr. Stewart, an orthopaedic surgeon, and perhaps others. None of these reports appears to take the matter any further. The Tribunal's findings and reasons contain a section entitled "The Law" in which the Tribunal discussed its approach to the 1ssues before it. It began by saying: "An Applicant is entitled to pension rights in respect of any of his claimed sources of incapacity if the evidence does not satisfy the Tribunal beyond reasonable doubt that such incapacity was not associated with his periods of relevant service as specified in the relevant legislative provisions (High Court of Australia in Law)". The applicant had no quarrel with this formulation though, in terms of para. 107VH(2)(a), the Tribunal 1s required to set aside the decision appealed from "unless 1t 1s satisfied, beyond reasonable doubt, that there were insufficient grounds for Lo. Joan. Oe ee ee - a a ry wae Fe ne ws == +5 stating that the onus of establishing "this negative proposition" lay with the Commission and that no preliminary onus was placed on an applicant to establish any form of case. Various authorities were offered in support of those propositions and, again, the applicant did not suggest any error in these propositions. There followed a somewhat cryptic passage which, I think, calls for some comment: "Although in the application of the law to the facts in particular cases, a view differing from this appears to have been applied, the view which must be preferred is that of the High Cout as referred to in each of the judgments cited. In each case specific reference was made to one or both judgments in the High Court's decision and it cannot be doubted that the High Court judgments were considered to be in full agreement on the point. In so far as subsequent single judge decisions of the Federal Court seem to be at variance with this view of the onus provisions by requiring that before a claim can be granted there must be evidence of a real possibility of an identifiable connection between service and incapacity, the Tribunal is bound to prefer the principles laid down by the High Court and approved in the subsequent decisions of the Full Federal Court to which reference has been made". The reference to "single judge decisions of the Federal Court" may include Repatriation Commission v. Bishop (1983) 48 ALR 461; Repatriation Commission v. Compton (unreported decision delivered 20 February 1984) had not then been decided. As I sought to make clear in Compton, nothing in Bishop was intended to li. depacde Iki anal ween woe eee Kaa et LAC Commission v. Law (1981) 36 ALR 411 regarding the onus of proof. In any event, both Bishop and Compton, together with a number of other decisions on the operation of relevant provisions of the Repatriation Act, were the subject of close examination by the Full Court of the Federal Court in O'Brien v. Repatriation Commission (unreported decision delivered 11 April 1984). of course O'Brien was not available to the Tribunal. Nevertheless, the question remains, did the Tribunal err in law in reaching the decision it did. Following the lengthy passage from its reasons, set out above, the Tribunal continued by saying that it seemed to it that the view which i1t declined to follow had been based on a misapplication and misunderstanding of certain decisions, not relating to the Repatriation Act itself. Because this excursus is not an integral part of the Tribunal's reasons, it is unnecessary to take up the alleged misapplication and misunderstanding. It is perhaps enough to say that the Tribunal did not specify, nor am I able to identify, single judge decisions of this Court concerned with the Repatriation Act which offered any basis for the Tribunal's conclusion. I turn now to the way in which the Tribunal dealt with the appeal so far as ait related to the claim based on haemorrhoids. The Tribunal referred to evidence given to 1t by Mr. Stewart in which he said that the condition had first cropped ae 7 =k L. eet oe 2. oe rT re ola weeidllons. wat expressed the view that the condition could have been connected with his having to live on local food while living with Vietnamese and Cambodian natives during his tour with the training team. Questioned on the effects of this food he answered, "1t passed right through you". The Tribunal referred to a second suggestion, mentioned in Mr. Stewart's written statement, that the haemorrhoids may have developed as a result of field exercises over long periods. The Tribunal said of these suggestions: "The aetiology of haemorrhoids provided in Dr. Godkin's report virtually excludes the first suggestion but the second is unexplained". The reference to the aetiology of haemorrhoids is fairly clearly a reference to the inclusion in Dr. Godkin's report of an extract from Christopher's Textbook of Surgery which describes haemorrhoids in this way: "These are varicose dilations of the groups of veins lying under the mucose of the upper anal canal. There 1s a congenital structural weakness in the veins. The condition may be associated with a rise in venous pressure, e.g. from raised intra abdominal pressure as with pregnancy, straining with chronic constipation, pelvic tumours, cirrhosis with portal hypertension. A familial predisposition may be present and may be associated with presence of varicose veins". 13. What ft understand the passage to say is that for haemorrhoids to exist theré must be initially a congenital weakness in the veins but that the haemorrhoids themselves are produced by venous pressure which itself may be due to a number of causes. I take the Tribunal to be saying that, given this aetiology, Mr. Stewart's experience with local food could not have brought on haemorrhoids. The reference to the second suggestion being "unexplained" 1s more troublesome. I am conscious of what was said by Northrop and Sheppard JJ. in Lennell v. Repatriation Commission (1982) 4 ALN No. 29: "A court exercising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decisions even if the court feels that the tribunal's language may have a degree of looseness. Certainly 1t ought not to indulge in an exercise which over-zealously picks the Tribunal up ina way it has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply". Nevertheless, the statement does give rise to some difficulty because it seems to take Mr. Stewart's suggestions as facts which had to be excluded by medical evidence before the claim could be rejected. Dealing with Dr. Godkin''s reports and, in particular, his opinion that no aspect of Mr. Stewart's service appeared to be responsible for the disability, the Tribunal said that it found this opinion "less than satisfactory" because: necessary to points. At the risk of inflating these reasons, see the way did not have the condition betore his period of defence service and yet in phraseology, which can hardly have been caiculated to convey any conviction suggests that it could have been congenital; it relies in part on the absence of evidence directly linking the condition to service; it relies on the evidence of the condition in the community at large; without explanation, it asserts it has nothing to do with field exercises". It did so in these words: "Z, a congenital anomaly is not itself a disease. The question which remains unanswered is: 'What were the possible causes which led to the development of Mr. Stewart's haemorrhoids in 1974?' Further the doctor's mode of expression on this point is not such as would lead the Tribunal to be satisfied beyond reasonable doubt about the congenital origin of the condition; to rely on the absence of evidence linking service with incapacity is to place an onus on the applicant where 1t does not lie. Absence of proof is not proof of absence; I think it is in which the Tribunal dealt with these - eattie aid "ate suePulllesas rans By spondylosis, which are common in the community but which have frequently been shown to be service related; and 4. the Tribunal can give but minimal weight to an unexplained assertion". With respect to the Tribunal, this approach betrays some misunderstanding of what Dr. Godkin was saying. Haemorrhoids are congenital in the sense that the initial weakness of the veins is congenital. But for the haemorrhoids to occur, some venous pressure is necessary and this may be due to any one of a number of causes. In Dr. Godkin's opinion, whatever the cause, it was not related to Mr. Stewart's service. It should be made clear that, in putting it this way, I am not suggesting that Dr. Godkin's opinion foreclosed the matter against Mr. Stewart. Questions inevitably arose as to the onus of proof in sucha situation. The Tribunal continued: "Neither individually nor in toto do the elements of this expert's opinion suffice to convince the Tribunal that beyond reasonable doubt Mr. Stewart's incapacity from haemorrhoids is unrelated to his service in either eligible-period. It is nothing to the point that one of Mr. Stewart's suggestions has been shown to be very highly improbable and the other 15 unproven. He carries no onus of proof. 'Not any onus' can never mean 'some onus'." 16. Notwithstanding the reservations I have expressed concerning the Tribunal's approach to Dr. Godkin's reports, I am not pursuaded that it was thereby led into any error of law. In terms of para. 107VH(2)(a), the Tribunal was bound to set aside the decision of the Commission unless it was satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim. This is not a case in which the aetiology of the condition 1s unknown; it is a case in which, on the material before the Tribunal, it was not possible to say what was responsible for the venous pressure that produced haemorrhoids from congenitally weak veins. I do not think that anything said in Bishop or Compton, particularly when read in the light of QO' Brien, precluded the Tribunal from saying as it did that it was not satisfied beyond reasonable doubt that Mr. Stewart's incapacity from haemorrhoids was unrelated to his service. Mr. French, counsel for the applicant, submitted that if the Tribunal was of the view that the evidence was deficient because of a lack of explanation, 1t should have taken the course suggested by Fitzgerald J. in Repatriation Commission v. Campbell (unreported decision delivered 30 March 1984) and Repatriation Commission v. Williams (unreported decision delivered 30 March 1984) and insisted that further material be provided. Subject to what I shall say later regarding the claim based on multiple lipomata, I do not think that the Tribunal was obliged to refrain from making a decision on the material available to it. There was wear 17. rte ate _ ae Gaek tld Ls LGA tas wee ale ol.- WoSa lu vytai ee Poet fav to carried the matter any further. The situation was essentially one in which one of several causes may have operated to produce the haemorroids and, having regard to the language of the Act, the Tribunal was entitled to reach the conclusion it did. As to the multiple lipomata, the Tribunal referred to Dr. Godkin''s reports, dwelling particularly on these statements: "There is no known cause. Multiple lipomata are uncommon, but are a well recognised entity and the peak incidence is between the ages 14-40. As far as is known, no environmental factor 1s involved in the aetiology of this condition". The Tribunal commented that: ».. the second observation is irrelevant and misleading 1f the first is correct. There can be no inference from the second statement that environmental factors have been excluded and only such an inference from the evidence would have been significant in the context of the reverse onus of proof". The Tribunal's strictures on Dr. Godkin's reports are not well founded. In a situation in which exposure to chemicals was mooted as a possible cause of the lipomata, it could hardly have been irrelevant to say that no environmental factor was involved in the aetiology of the condition. Nor was the statement 18. ULSLEAILNT BECAU tr c ile vas DOrerac tp ce oy the aosecsvation tnac cnere was no known cause of the condition. To begin with, it was introduced by the words "As far as is known". But more than this, there 1S no logical consistency in saying of a particular condition that its cause is unknown but that, so far as is known, no environmental factor is involved. Such a view is consistent with the decision of Northrop and Sheppard JJ. in Lennell and with my own dissenting judgment in that case. The Tribunal referred to Lenneli more than once in reaching 1ts conclusion that there was nothing before it "which would lead it to conclude beyond reasonable doubt that Mr. Stewart's incapacity from multiple lipomata is unrelated to either of his eligible service periods". Whether the Tribunal gave full force and effect to Lennell is doubtful, particularly when regard is had to this passage which follows the Tribunal's consideration of that decision: "It is interesting to note that where a disease is one of completely unknown aetiology the same party must always succeed under the High Court''s ruling in the Law decision. Where there 1s no evidence except that the incapacity claimed arises from a disease the cause of which is completely unknown, the Applicant must always succeed (cf. the dictum of Davies J. to this effect in his dissenting judgment in Byrne, Coyle, Wickenden & MacPherson). In contrast, application of the view that before a claim can be granted, there must be a ig. ae rd - - we DB eh eee a. relevant Tactual connection between incapacity and service, would always lead in the same circumstances to a reiection of a claim". As a matter of strict logic, it may be right to say that where a disease 1s one of completely unknown aetiology the claimant must succeed, though I do not think that result follows from Law where such a situation was not before the Court. It does gain some support from this passage 1n the judgment of Keely and Fitzgerald JJ. in O'Brien at p.38: "If there is no material in respect of a fact, or if the material is neutral in the sense that it leaves the existence of the fact unknown, there 1s no rational basis for a choice between the conclusion that the fact does exist and the conclusion that it does not. The non-existence of that fact 1s not the only rational conclusion. There is no need that there also be material which points toa 'real' possibility of the existence of that fact. That 'real' possibility 1s deft open by the evidence". But the approach taken by the Tribunal in the passage quoted carlier is fraught with difficulties. To refer to a disease of "completely unknown aetiology" suggests that there 15s nothing at all that may be said about the aetiology of the disease. Decisions on claims under the Repatriation Act indicate that in many cases where the medical evidence speaks of an unknown aetiology, 1t may nevertheless be possible to exclude or point to the unliikelihood of any connection between the disease and a Cabcete.. 2 la eee 28 wb Wee ale vt weseunas Maso take into account. Tt was because the Tribunal in Bishop felt that it was obliged to find that, where the aetiology of a disease was unknown, it could not be satisfied beyond reasonable doubt that there was not some relationship between war service and the disease I was prompted to make some remarks about the need to find something in the material before the Tribunal pointing to a possibility, real as opposed to fanciful, of a connection between the death and the war service. I explained this further in Compton. The implications of Q'Brien for those two decisions need not be considered here. Nothing in O'Brien, I think, detracts from this passage in Compton: "Claims before the Commission are not to be determined by the mechanical application of some formula. It is necessary to examine all the evidence available and then to determine whether, on that evidence, the Repatriation Board or other tribunal concerned is satisfied beyond reasonable doubt that the death of the member of the Forces was not attributable to war service. If the tribunal is not so satisfied the claim must be allowed. In making that determination the tribunal should have regard to possibilities, so long as they are not fanciful". To approach the matter of a claim based on a disease of unknown aetiology with a preconception that 1t must inevitably succeed 1s likely to lead the Tribunal away from the statutory obligation cast on 1t to consider whether it is satisfied beyond reasonable doubt that there were insufficient grounds for granting as 21. -2.0' - = -- --- commented: "If the material leaves the cause of death unknown, it 1s likely to prove extremely difficult to be satisfied that the death was not 'connected with' war service ina manner specified in the Act. However, the possibility of an exceptional case may be left open as it was in Lennell's Case in relation to an incapacity of unknown aetiology because 1t is a judicial necessity to acknowledge such possibilities lest the law should appear to have been laid down in a way which excludes them from consideration". I find nothing in that passage or anywhere else in O'Brien that 1s inconsistent with what was said in Lennell or with what I have said in these reasons concerning the need for an examination of all the evidence. In my opinion, the real question in this appeal is not whether the Tribunal, properly directing itself on the law, might have reached the decision 1t did, for the applicant concedes that 1t might. The real question is whether the Tribunal failed in 1ts statutory duty to have regard to the evidence before the Commission and before it in determining whether it was satisfied, beyond reasonable doubt, that there were insufficient grounds for granting Mr. Stewart's claim in respect of the lipomata. I am led to the conclusion that it did fail, in particular that it did not have regard to the entirety of the medical evidence including that of Dr. Godkin and Dr. Goatcher as well as Dr. Johnson. . cote le te pote .2.7as the Terbunal wade axpres ih a rererence to Dr. Godkin s reports but the Tribunal seems to have regarded those reports as simply negative when they had a positive element. That 1s not to say that the Tribunal was bound, on the basis of Dr. Godkin's reports, to have rejected the claim. But I am satisfled that the Tribunal erred in iaw in drawing conclusions from Law and Lenneili wider than was warranted by those decisions and in the approach it took to the medical evidence in consequence. The appeal should be allowed to the extent that the decision of the Tribunal that the Commonwealth 1s liable to pay to Robert Stewart, in respect of his incapacity from multiple lipomata, the pension payable under Division 1 of Part III of the Repatriation Act should be set aside and that matter remitted to the Tribunal to be determined according to law. I am not saying, as was said in Campbell and Williams, that the Tribunal should have insisted that further medical evidence be provided. Nevertheless, as the matter is to go back to the Tribunal, it would be appropriate for the Tribunal to exercise its powers under s.107VZ and seek further medical advice. I certify that this and the twentyone preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey Na A bau (in Associate Dated: a ea