CATCHWORDS Repatriation - Pension under Seamen's War Pensions and Allowances Act, 1940, - "Australian mariner" serving as seaman employed ina ship registered outside Australia who was resident in Australia for at least twelve months immediately before entering into such employment - "war injury" causing incapacity - procedure on hearing of application for such pension at first instance before Pension Committee, and review by the Repatriation Commission and subsequently by the Repatriation Review Tribunal established - - under the Repatriation Act, 1920 - onus of proof on such applications - standard of proof on such applications - Tribunal applying incorrect onus and standard of proof - remittal to Tribunal for further hearing and determination. Seamen's War Pensions and Allowances Act, 1940, ss. 3, 12, 34, 36, 37 Repatriation Act, 1920, 107VC, 1lO7VH, 107VZZH, 107VZZK(2) REPATRIATION COMMISSION v. RAYMON FREDERICK HARRIS No. G 179 of 1982 Evatt J. 27 July, 1984 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 179 of 1982 GENERAL DIVISION ) ON APPEAL from the Repatriation Review Tribunal under s. 37 of the Seamen's War Pensions and Allowances Act, 1940, and s. 107VZZH of the Repatriation Act, 1920 BETWEEN : THE REPATRIATION COMMISSION Applicant AND: RAYMON FREDERICK HARRIS Respondent ORDER JUDGE MAKING ORDER : Evatt J. DATE OF ORDER : 27 July, 1984 WHERE MADE : Sydney THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Repatriation Review Tribunal given 24 August, 1982, be set aside. 3. The respondent's claim be remitted to the Tribunal for determination in accordance with these reasons. 4. The Commonwealth pay the respondent's costs of the appeal in accordance with the provisions of s.107VZZK(2) of the Repatriation Act, 1920. IN THE FEDERAL COURT OF AUSTRALTA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 179 of 1982 GENERAL DIVISION } ON APPEAL from the Repatriation Review Tribunal under s. 37 of the Seamen's War Pensions and Allowances Act, 1940, ands. 107V2ZZH of the Repatriation Act, 1920 BETWEEN: THE REPATRIATION COMMISSION Applicant RAYMON FREDERICK HARRIS Respondent CORAM Evatt Jd. 27 July 1984 REASONS FOR JUDGMENT This is an appeal brought pursuant to s. 107VZZH of the Repatriation Act, 1920, from a decision of the Repatriation Review Tribunal, (the Tribunal), made on 24 August, 1982, in an application lodged by Raymon Frederick Harris (the respondent) under the provisions of Part IV of the Seamen's War Pensions and Allowances Act, 1940, (the Act.) The proceeding, although called a" 2. an appeal, is infact an exercise of the Court's original jurisdiction under s. 19 of the Federal Court Act. The Tribunal determined that a decision of the Repatriation Commission, (the Commission), made pursuant to s. 7 of the Act on 21 November, 1980, should be set aside. The Commission had affirmed a determination made under s. 5 of the Act by a Seamen's Pension and Allowances Committee, (the Committee), on 23 May, 1980, refusing the claim of the respondent for a pension under s. 12 of the Act. The Tribunal's formal decision reads: "To set aside the Repatriation Commission decision of 21 November, 1980, and substitute the decision that in respect of Raymon Frederick Harris's incapacity from "solar hyperkeratoses" the Commonwealth of Australia is liable to pay the pensions payable under the Seamen's War Pensions and Allowances Act, 1940, in the case of an Australian mariner as a direct result of having sustained a war injury in the course of his employment as an Australian mariner; and the decision is to operate on and from 3 January, 1979." The respondent was born on 15 January, 1928. There is no dispute that during World War II he saw sea-going service as a seaman in certain Norwegian vessels which sailed for the Allied cause and that he was an "Australian mariner" within the meaning of that expression as defined by s. 3 (1)(aa) of the Act. During his service in MS "Tarifa" commencing 22 December, 1943, the ship, whilst sailing in equatorial waters on 7 March, 1944, was torpedoed by enemy action and subsequently sunk. At that time 3. the respondent was aged sixteen years. As a result of that enemy action the respondent spent some eight days in an open lifeboat. He subsequently returned to sea in late April, 1944, and saw further sea-going service in various Norwegian vessels sailing within tropical waters up until November, 1945. As appears from the findings and reasons of the Tribunal at pp 56 and 63 of the Appeal Book filed herein the Tribunal considered that its jurisdiction to review the Commission's decision and its powers in the exercise of that jurisdiction were conferred by ss 107VC and 107VH of the Repatriation Act, 1920. The Notice of Appeal filed herein sets out the following grounds of appeal: 1. That the Repatriation Review Tribunal erred in law in that contrary to section 37 of the Seamen's War Pensions and Allowances Act it treated section 107VC of the Repatriation Act, 1920, as applicable to the application made to it by the Respondent. 2. That the Repatriation Review Tribunal erred in law in that contrary to section 37 of the Seamen's War Pensions and Allowances Act it treated section 107VH of the Repatriation Act, 1920, as applicable to the application made to it by the Respondent. 3. That the Repatriation Review Tribunal erred in law in that it held that any injury said to have 4, been caused to the Respondent's skin by his exposure to sunlight on board ship in war time (apart from his exposure thereto in a lifeboat following the sinking of the M.S. "Tarifa") was a war injury." and sought orders that the decision of the Tribunal be set aside. Section 34 of the Act, which together with ss. 35, 36 and 37 form Part IV of the Act, provides that where the Commission has made a determination refusing a claim by a mariner on the ground that he is not suffering from any incapacity or that any incapacity is not directly attributable to a war injury sustained by him, the claimant mariner may make application to the Tribunal for a review of the determination of the Commission. That Part of the Act was inserted by s. 43 of the Repatriation Acts Amendment Act, 1979. Sections 36 and 37(1) of the Act are set out: "36(1) In a proceeding on a review under this Part, the Tribunal shall have regard to the evidence that was before the Commission or the Pensions Committee 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 Commission or the Pensions Committee but would have been relevant to the making of a decision in the proceeding before the Commission or the Pensions Committee. (2) On the proceeding on completion of its consideration in a a review under this Part, the Tribunal shail- (a) (b) 37(1) Part IIIA If it is satisfied that the decision the subject of the review is not the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made - set aside that decision and substitute for that decision such decision as the Tribunal considers to be in accordance If it is with this Act; or not so satisfied - affirm the decision the subject of the review. (other than sections 107VC, 107VD, 107VE, 107VG and 107VH), and Parts IIIB and IIIc, of the Repatriation Act, 1920, apply to, and in relation to, an application under this Part as if the application were an application under Part IITA of that Act." It will be seen Repatriation Act expressly ss. 107VC and 107VH(2)(a). the Repatriation Act by s. that two of the sections of the excluded by s. 37(1) of the Act are These two sections were inserted into 26 of the same 1979 amending Act. Relevant parts of those sections read: LO7VC(1) Where the refusing ac under Commission has made a decision laim by a person for a pension this Act arising out of the incapacity... . of a member of the Forces on the ground that - (a) ee ee (b) ye ee (c) the incapacity from which the member is suffering . » » has not been contributed to in any material degree, or has not been aggravated, by the conditions of his war service, that person may, on or after 1 July, 1979, make application for a review of the decision of the Commission. (emphasis added) 107VH(2) On the completion of its consideration ina proceeding on a review - (a) Where the decision the subject of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision uniess it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application." The effect of the above amendments to the Act and to the Repatriation Act is that: (a) onan application by a claimant to the Tribunal under s.107VC of the Repatriation Act the onus of proof 1s on the Commission to persuade the Tribunal that some fact essential to the establishment of the claimant's entitlement has not been proved beyond reasonable doubt (Repatriation Commission v. Law, (1980 - 1981) 147 C.L.R. 635 at 652.)(see s. 107VH(2) - see also O'Brien v. The Repatriation Commission (unreported) Cor. Sweeney, Keely and Fitzgerald JJ - Judgment 11 April, 19864 (b) on an application by a claimant to the Tribunal under Part IV of the Act the onus of proof is on the claimant to persuade the Tribunal on the balance of probabilities of all the facts essential to the establishment of his entitlement, (see ss. 36 and 37(1) of the Act.) In its findings and reasons in the present matter the Tribunal was clearly under the misapprehension that Mr Harris's application before the Tribunal was brought under s. 107VC of the Repatriation Act and that the principles laid down in Law's Case applied, (see p. 56 of the Appeal Book.) After setting out the various findings of facts and reviewing the evidence before the Commission of Dr Perkins, the Tribunal at p. 63 of the Appeal Book stated: "If this be the case, the Tribunal then cannot be satisfied beyond reasonable doubt that that exposure during the Applicant's war time experiences did not have some causal effect in the development of solar hyperkeratoses ...." Later on that page the Tribunal states: "Tf this be the case, the Tribunal finds that indeed there is a real possibility that the exposure to 8. sunlight both during the period the Applicant was on the high seas in the lifeboat and on deck as a sailor would have a causal effect in the development of the malady in question. The Tribunal notes as a matter of law, there is no onus' on the Applicant to prove his case." Thereafter s. 1LO7VH(2)(a) of the Repatriation Act is set out and then appears the following: "Thus the Tribunal is bound to set aside the determination unless it is satisfied with the standards required by the relevant section of the Act. For the above reasons the Tribunal finds that it is not satisfied beyond reasonable doubt that there were insufficient grounds for granting the Applicant's claim." As a consequence, the Tribunal set aside the decision of the Commission of 21 November, 1980, and substituted its own decision as set out earlier herein. Undoubtedly, the Tribunal incorrectly considered the respondent's application for review on the basis that the Commission carried the onus of proof and that that onus was as determined by the High Court in Law's Case. Clearly, s. 107VH of the Repatriation Act does not apply in the circumstances of the respondent's application. Indeed, the Solicitor for the respondent herein, (the applicant before the Tribunal), advised the Court in writing on the morning of the hearing of the appeal that, "On the advice of Counsel the respondent does not intend to make any submissions in respect of the proposition that the Tribunal was correct in applying s. 107VH of the Repatriation Act to the facts of the case. Counsel's advice is to the effect that the first two grounds of the appeal must succeed." However, the respondent submitted that the Court in the exercise of its discretion should remit the matter to the Tribunal for rehearing. This course was objected to by the applicant Commission which sought an order that the decision of the Tribunal be set aside with a consequential order restoring the decision of the Commission made on 21 November, 1980. As indicated above, s. 37 of the Act provides that Parts ILIA (other than certain sections), IIIB and IIIC of the Repatriation Act applied to the respondent's application for review before the Tribunal. Part IIIC makes provision for references and appeals from the Tribunal to the Federal Court of Australia. Section 107VZZH(1) which falls within that Part provides that the Commission may appeal to the Federal Court of Australia on a question of law from any decision of the Tribunal. Sub-sections (4) and (5) of that section are set out: "(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal 10. include an order affirming or setting aside the decision of the Tribunal and an order remitting the 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." I have given the matter deep and earnest consideration particularly as to whether the Court, assuming that s. 107VZZH gives such power, could on reading the particulars, the documents and the evidence set out within the Appeal Book, make a determination in the matter as was done by the Court in Delahunty v. Commonwealth (1981) 53 F.L.R. p.9 at p.14. There a Full Court of the Court in an appeal from a decision of a Judge of a prescribed Court disallowing compensation to a Commonwealth employee under the Compensation (Commonwealth Government Employees) Act, 1971, made a determination in favour of the employee pursuant to s. 95 of that Act in the circumstances of that case. The Appeal Book herein sets out the transcript of the proceedings before the Tribunal and a summary containing relevant documents before that Tribunal. Such documents include copies of the respondent's applications for a pension together with his statement lodged therewith; a medical history and examination of the respondent by a Dr Cutner dated August, 1979; the decisions and reasons of the Committee; the opinion of Dr Perkins, a Senior Medical Officer of the Repatriation Commission; the reasons of ll. the Commission for rejecting the claim; a letter from Dr Weedon, Professor of Clinical Anatomical Pathology University of Queensland, dated 23 February, 1982, addressed to the Tribunal following a reference by the Deputy President of the Tribunal pursuant to s. 107VZ of the Repatriation Act of the respondent's claim. It is noted that the Commission failed to attend the hearing before the Tribunal. It is further noted that the Tribunal found certain material questions of fact including the critical causation questions in favour of the respondent applicant. It would appear from the Tribunal's reasons that the essential findings of fact other than the causation questions had not really been disputed before either the Commmittee or the Commission and that it was only when the Tribunal was considering the questions of causation that a reference to s. 107VH of the Repatriation Act was made. But it cannot be said with any degree of certainty that the Tribunal did not take into consideration the provisions of s. 107VH when deciding all questions of fact. As a consequence, I am of the view that the proper course to adopt is to remit the matter to the Tribunal to be heard and determined according to law. Accordingly, the Court orders that the appeal should be allowed, the decision of the Tribunal set aside and the matter be remitted to the Tribunal to be heard and determined according to law. As required by sub-s. 107VZZK(2) of the Repatriation Act, 12. (which section falls within Part IIIC of that Act), the respondent's cost of the appeal must be paid by the Commonwealth. I certify that this and the vénpreceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Evatt. " Ilo UY ociate Dated 27 July 1984