CAELCHRORDS ADMINISTRATIVE LAW - RepatrialLion - Review by Repatriation Commission of decision fixing effective date of determination accepting disability as due to war service - Whether Commission bound by statutory limitations binding maker of decision under review - Whether tule of policy applied without regard to merits of particular case - Whether irrelevant cansiderations taken into account - Whether a failure ta take into account relevant considerations. mn th Administrative Decisions (Judicial Review) Act 1977, Repalriation Acr 1929, ss.31, 1LOVVM, LOVVEZG ANDREW CHRISTOPHER HANLEY v. THE REPATRIATION COMMISSION No. ACT G 93 of 1983 CORAM: Neaves gd. 14 December 19984 Canberra iN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY No. ACT G 93 of 1983 DISTRICT REGISTRY GENERAL DIVISION BETWEEN : ANDREW CHRISTOPHER HANLEY Applicant AND: THE REPATRIATION COMMISS LON Respondent ORDER JUDGE MaKING ORDER 2 Neaves J. DATE OF ORDER : 14 December 1984 WHERE MADE : Canberra THE COURT ORDERS THAT: 1. The application be dismissed 2. The applicant pay the respondent's costs of the application. IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY No. ACT G 93 of 1983 DISTRICT REGISTRY ~~ er werws GENERAL DIVISION BETWEEN : ANDREW CHRISTOPHER HANLEY Applicant AND: THE REPATRIATION COMMISSION Respondent CGRAM: Neaves J. DATE: 14 December 1984 REASONS FOR JUDGMENT NEAVES J. This is an application by Andrew Christopher Hanley ("the applicant") under section 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order of review in respect of a decision of Mr Frederick William Bell, a delegate of the Repatriation Commission ("the Commission"), made on 13 September 1983 affirming that the effective date of the applicant's incapacity resulting from duodenal ulcer be 23 June 1978. The decision also affirmed thac date as the effective date of the applicant's incapacity resulting from anxiety tJ neurosis but an order of review 1s not sought in respect of that part of the decision. lt 25 necessary to an understanding of the issue which arises for decision to trace the history of the matter in some detail and to refer to some of the provisions of the Repatriation Act 1920 ("the Act") in the form which they took at relevant times. At all times material to these proceedings sub-section 101(1) of the Act has provided in effect that, subject to certain immaterial exceptions, the Commonwealth 1s liable to pay pensions in accordance with Division 1 of Part IIIT of the Act upon the incapacity or death of a member of the Forces "whose incapacity or death has arisen out of or 15 attributable to his war service". The Act has at all material times also provided for claims for pension Lo be made (section 24A4), for the investigation of those claims and for such claims to be submitted to the Commission or to a Repatriation Board for consideration and determination (section 24AB), with a right of appeal to the Commission from any assessment or determination of a Board (section 28). Sub-section 101(3) has at all material times provided that, where a pension 1s granted, the Commission or a Board may, subject to the Act, approve of the payment of the pension on and from a date not prior to three months before the date of lodgment of the claim for pension. It is common ground that the applicant is a member of the Forces within the meaning of sub-section 1G](1) of the Act. On 5 August 1953 the applicant loaged a claim for a pension under the Act claiming to have accepted as disabilities related to his war service "necves" and "constant gnawing pain in stomach". He was seen by a departmental medical officer, Dr N.A. Fowler, on that date, the notes of chat examination recording the following as the applicant's complaints ~ "]. Complains of intermittent gnawing epigastric pain ever since discharge from service. Appears to be more marked when he retires for the night. Not affected by meals. Some slight relief from alkali. Stomach 15 always upset when he gets into an argument etc. No vomiting. Werght 1s rising. No bowel symptoms. 2. Complains of a hot feeling across the top of the forehead. Difficulty 1m concentration, Forgets things easily. Mind appears to be a blank. - These have been present since discharge. 3. Complains of being very easily upset - gets the shakes and becomes a bundle of nerves after an argument." The applicant was referred for examination by a physician and a psychiatrist. Those examinations were 4. subsequently carried out and each doctor made a report dated 24 August 1953. The reports stated that he did not have any psychiatric incapacity or any organic stomach lesion. On 25 August 1953 the applicant completed a statutory declaration bearing that date. In 1t he stated that prior to his discharge from the Forces ' following approximately 2 years' service overseas he commenced to be bothered by persistent depressive headaches, bouts of malaria, dermatitis and nervous disorders of the stomach, that he found extreme difficulty when attempting -o concentrate his thoughts on a particular subject, that he suffered from attacks of nerves and was continually upset in the stomach by any trivial, unexpected happening. The claim was rejected by a Repatriation Board on 4 September 1953. On 23 December 1957 the applicant lodged a claim to have "war nerves" and "anxiety neurosis" accepted as disabilities related to his war service. He was diagnosed as having anxiety neurosis but the medical opinion was that that condition was not related to his war service. A determination to that effeccr was made by a@ Repatriation Board on 24 January 1958. An appeal 5. against that determination was disallowed by the Commission on 21 May 1958. On 8 January 1976 the applicant applied to have a condition of "duodenal ulcer" accepted as a disability related to his war-service. That application was treated as an appeal to the Commission under section 28 of the Act against the determination of the Repatriation Board made on 4 September 1953 that the applicant was not suffering from any organic stomach lesion. In suppore of the application the applicant submitted a report dated 8 December 1975 made by Dr L.K. Rasmussen following a barium meai X-ray of the applicant. The report read, in part - "The duodenal cap is irregular dué to an ulcer present at the lesser curvature aspect of the cap. There 1s no other Lesion in the duodenal loop, pancreatic area or upper jejunal coils. CONCLUSION: 'There 1s quite a large duodenal ulcer present." On 5 January 1976 a Dr Richardson, who is described as a Local Medical Officer, examined the applicant and completed a medical history and examination form. In relation to his duodenal ulcer, Dr Richardson, under the heading "History of Incapacity Claimed", said - "Duodenal ulcer - also a predisposition to ulcer like symptoms date back to the pericad during his war service and almost (to varying degrees) unremittingly since then. lie has probably had undiagnosed ulceration on and off since that time as he assures me that on many occasions his symptoms have been more severe than those recently leading to the Ba meal. I can aver for this, at least certainly during the last 6 years." Dr Richardson's diagnosis was expressed in these terms - "Duodenal ulcer - longstanding and recurrent". Arrangements were made for the auplicant to be seen by Dr D.A. Curran on 2 March 1976. He reported - "This man seems Eto have a severe duodenal ulcer and has been advised to have six weeks' bedrest." On 10 September 19765 a Repatriation Board reauested an opinion from Dr P.Grainger, Acting Assistant Darector of Medical Services in the New South Wales Branch of the Department of Repatriation and Compensation. His report, dated 11 October 1976, read - "l. Board Minute 10/9/76 refers. 2. The member had a large Duodenal Ulcer denonstrated for the first time at the age of 50. 3. The natural history of Duodenal Ulcer 15s that of an intermittent but persistently recurring condition throughout most of life. The sufferer usually develops symptoms in the late teens or early twenties. They rarely seek serious medical advice before the mid twenties. The symptoms are of dyspepsia more 7. or less typical of Duodenal Ulcer. These people are frequently X-rayed by Barium Meal, but a duodenal ulcer is hardly ever discovered. In fact, reports of an ulcer being present can be looked on with suspicion unless the presence of the ulcer is very obvious. The dyspepsia typically remits and recurs. If repeated Barium Meal studies are carried out, it is usually possible to demonstrate a Duodenal Ulcer at about age 32. This ulcer will usually heal, but periodically relapse throughout life, most commonly at 2 yearly intervals. In addition to dyspeptic symptoms attributable to the duodenal ulcer itself, most sufferers have in addition purely neurotic symptoms related to the Gastro-intestinal tract. These may take any form. 4, The member presented with dyspeptic symptoms in 1953 when he was 28 years old, an aye when 1t 15 unusual to be able to detect a duodenal ulcer on an X-ray. The history he gave varied with the observer. This is not an uncommon occurrence, even in unequivocally organic conditions. 5. The examining D.M.0. was Dr N.A. Fowler, now a prominent Surgeon. The history given to De Fowler was - An intermittent gnawing epigastric pain more marked on retiring for the night. There was some slight relief from aikalines. This part of the history suggests that the disability then claimed was Duodenal Ulcer. The member then slated that his pain was not affected by meals. One of the most characteristic features of the pain of Duodenal Ulcer is that it is relieved hy most foods. In addition there were some purely neurotic symptoms - stomach always upset sshen he gets into an argument etc. The examining Physician was Dr Reader. The member gave Dr Reader a rather different history to that given Dr Towler. This 1s not at all unusual. This time it was stated that there was soreness in the Right hypochondrium for 5-65 vears and present all the time for 2 or 3 days at a time. These symptoms are 8. not those of Duoaenai Ulcer oar any other organic lesion. Again it was stated that there was no relation to meals. However, it was again stated that the pain was worse on going to bed. This suqgests an organic component somewhere. Barium Meal was normal, which one would expect it to be even if the precursor of duodenal ulcer was present. 6. On balance I would say that the member was suffering from a Duodenal Ulcer in August 1953, and that the condition has remitted and celapsed periodically since. Dr Richardson's opinion on D2065 that Duodenal Ulcer has been present intermittentiy for years appears correct. A duodenal ulcer rarely becomes manifest for the first time at the age of 50. In addition, in 1953 the member had various gastro-intestinal symptoms purely neurotic in nature. 7. The insert in the K.E.2 discusses various theories of aetiology of Duodenal Ulcer. Any particular Research Laboratory has a good chance of finding evidence to support whatever theory it favours, as the disease is a very common one, Guide to Aetiology of Diseases (3/7) tends to discount the importance of Psychological factors. The patients in Psychiatric Wards of Repatriation General Hospitals acknowledge that they are neurotic. A visit to one of these Wards reveals an incidence of duodenal ulcer in the patients overwhelmingly greater than in any control group. This convinces me that the importance of Psychological factors outweighs all other aetiological factors in nearly all cases. 8. In summary my view 1s - (a) Duodenal Ulcer is not a new disability. (b) In this case anxiety state is the predominant cause. (c) There could be other causative factors, but they are of little Significance in this case." The Commission, while accepting the medical evidence that the applicant was suffering from duodenal ulcer, determined on 17 November 1976 that the uncapacity arising therefrom was not related to Lhe applicant's war service and the claim was rejected. The applicant was informed by letter dated 23 November 1976 of that decision and of the reasons given by the Commission to support it. From that decision the applicant appealed on 19 September 1977 to a War Pensions Entitlement Appeal Tribunal. That appeal was lodged pursuant to section 64 of the Act as it then stoad. The appeal was disallowed on 20 December 1978. The applicant was informed of that decision and of the Tribunal's reasons by letter bearing that date. Between the date on which the Cummission had made 1ts decision (17 November 1976) and the date upon which the appeal to the War Pensions Entitlement Appeal Tribunal was lodged (19 September 1977), namely on 16 June 1977 the Repatriation Acts Amendment Act 1977 (Act No. 56 of 1977) received the Roval Assent. On that date section 12 of the amending Act came into operation, its effect being to repeal section 47 of the Principal Act 10. and substitute a new provision. In the form in which previously stood, section 47/7 provided - "(1) The Commission, a Board, an Appeal Tribunal and an Assessment Appeal Tribunal, in hearing, determining or deciding a claim, application or appeal, shall act according to substantial justice and the merits of the case, shall not be bound by technicalities or legal forms or rules of evidence and shall give to the claimant, applicant or appellant the benefit of any doubt - (a) as to the existence of any fact, matter, cause or circumstance which would be favourable to the claimant, applicant or appellant; or {(b) as to any question whatsoever (including the question whether the incapacity from which the member of the Forces is suffering or from which he has died was contributed to in any material degree, or was aggravated, by the conditions of his war service) which arises for aecision under his claim, application or appeal. (2) It shall not be necessary for the claimant, applicant or appellant to furnish proof to support his claim, application or appeal but the Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal determining or deciding the claim, application or appeal shall be entitled to draw, and shall draw, from all the circumstances of the case, from the evidence furnished and from medical opinions, ail reasonable inferences in favour of the claimant, applicant or appellant, and in all cases whatsoever the onus of proor shall lie on the person or authority who contends that the claim, application or appeal should not be granted or allowed to the full extent claimed." ll. In its amended form it read - a {1) The Commission, a Board, an Appeal Tribunal or an Assessment Appeal Tribunal, in hearing, considering, determining or deciding a claim, application or appeal - (a) (b) is 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, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to - (i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses: or (ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a member of the Forces was not reported to the appropriate authorities. (2) The Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal shall grant the claim or application or allow the appeal, as the case may be, unless it 18 satisfied, beyond reasonaple doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal.". 12. The amended provision was to apply (see sub-section 12(2) of the amending Act of 1977) in relation to - (a) (b) the hearing or consideration after 16 dune 1977 of a claim, application or appeal, whether or not the hearing or consideration commenced before that date; and a determination or decision made after 16 June 1977 in respect of a claim, application or appeal. it may be noted in passing that section 47 was further amended by Act No. 18 of 1979 when it assumed its present form. On 11 December 1981 the Commission received on the applicant's behalf a request Lo reconsider the claim in respect of duodenal ulcer. The request was accompanied by a medical assessment dated 18 November 1981 made by Dr L.V. Armati. That assessment read in part - "Thus it is reasonable to consider that he developed a nervous state as a result of his service and the evidence indicates that this has persisted post war. On 11.10.76 Dr Grainger stated: 'In this case anxiety state 1s the predominant cause (of the ex-member's duodenal ulcer)'. In view of this evidence I am of the opinion therefore that it is reasonable for consideration to be given to the acceptance of the duodenal ulcer." 13. The matter was referred to a Senior Medical Gfficer (Appeals) within the Department otf Veterans' affairs who disagreed with Dr Armati's views. Mr P.C. Fury, a delegate of the Commission, pursuant to sub-section 107VM(1) of the Act then embarked upon a reconsideration of the applicant's claim un respect of duodenal ulcer. Sub-section 107VM(1) of the Act provided - "(1) Where - (a) at any time after the making of a decision of the Tribunal on a review pursuant to an application under section 107VC, being a decision affirming the decision of the Commission the subject of the review, the applicant submits to the Commission, in writing, further evidence with respect to the claim the subject of that decision of the Commission; and (b) the Commission 1s satisfied that the further evidence is evidence that would have been relevant to the making of a decision in the proceeding before the Commission the decision in which was affirmed by the Tribunal, the Commission shall reconsider that claim." The reference in that sub-section to a decision of the Tribunal on a review pursuant to an application under section 107VC is, by virtue of section 49 of the Repatriation Acts Amendment Act 1979, to be read as a 14. reference to a decision of a War Pensions Entitlement Appeal Tribunal affirming a prior decision of the Commission. Because of this provision sub-section 107VM(1) was applicable 1n the circumstances of this case. Mr Fury also undertook, of his own motion pursuant to section 31 of the Act, a review of the decision of the Commission dated 21 May 1958 affirming the disallowance of the applicant's claim in respect of anxiety neurosis. On 23 June 1982 Mr Fury determined that incapacity resulting from duodenal ulcer and anxiety neurosis be accepted as being related to the applicant's war service with effect from 23 June 1978, that being four years prior to the date of his determination. The statutory provisions relevant to the determination by Mr Fury of 23 June 1978 as the effective date in respect of incapacity resulting from duodenal ulcer were contained in Division 7 of Part ITIA of the Act. So far as material it was provided that the Commission (or a delegate) might specify in a decision on a review under section 107VM the date from which the decision was to aperate, being a date fixed in accordance with that Division (section 107VZF). In the 1S. particular circumstances of the case being considered by the delegate paragraph 107VZG(1)(f) was applicable because the decision to accept the disability as being due to war service was one made under section 107VM of the Act. Paragraph 107V2G(1)(f) provided that the decision was not to be expressed to operate from a date earlrer than four years, or such longer period as the Commission considered appropriate in the special circumstances of the case, before the day on which the relevant decision was made. It may be noted that prior to the amendment made by Act No. 160 of 1981 it was not open to the Commission, in circumstances falling within paragraph 107VZG(1)(f), to fix a date earlier than four years before the date of the decision. Mr Fury concluded that there were no special circumstances sufficient to warrant the fixing of a date earlier than four years before the date of his decision. The applicant wrote on 16 November 1982 to the Minister for Veterans' Affairs, then Senator A.J. Messner, concerning the effective date of the determination made by Mr Fury on 23 June 1982 and other matters. The Minister replied by letter dated 1 February 1983. On 6 April 1983 the applicant again wrote to the Minister for Veterans' Affairs, that office being held at that time by Senator A.T. Gretzelt following a change of government. Senator Gietzelt 16. replied by letter dated 31 May 1983. It will be necessary to refer to some ot this correspondence later in these reasons. By letter dated 28 June 1983 the applicant sougnt a review pursuant to section 31 of the Act of that part of Mr Fury''s decision which fixed 23 June 1978 as the date of effect of the decision accepting incapacity arising from ducdenal ulcer as being related to the applicant's war service. The Commission informed the applicant by letter dated 8 August 1983 that it was unable to assist him. The letter iuncluded the following paragraphs - "The Repatriation Commission in determining that duodenal ulcer is related to your service considered your case under Section 107VM of the Repatriation Act. As such retrospectivity cannot be qranted earlier than 4 years prior to the decision unless there are special circumstances which would warrant an earlier date. As you have previously been advised, in this instance the Commission was unable to concede that special circumstances existed in this particular case. Your contention can only be considered in light of the legislation concerning effective dates and in particular with claims and appeals being lodged within the prescribed time limits." 17. The applicant then requested, pursuant to section 13 of the Judicial Review Act, a statement of the reasons for the decision said to be set out in the letter dated 8 August 1983 confirming the date of effect of Mr Fury's determination. In lieu of providing a statement of the reasons for the decision to fix the effective date at 23 June 1978, a review of that decision was undertaken by Mr Bell pursuant to section 31 of the Act. On 13 September 1983 Mr Bell determined - "The effective date set by the Delegate of the Repatriation Commission in his determination of 23 June 1982 concerning incapacity resulting from duodenal ulcer and anxiety neurosis is affirmed." A statement of the reasons for that decision was prepared and Furnished to the applicant. It 1s the above decision that the applicant seeks to have reviewed. In the reasons for his decision Mr Bell referred to the history of the matter and noted that the determination which he had under review was made under section 107VM of the Act and that, in respect of such a determination, section 107VZG was the relevant provision by which to determine the operative date. The reasons proceed - uy 18. "The Lécms oF sections 29, L03(3), and 1O07VZG of the kepatrialion Act suyyest that cantinuity of appeals and other approaches to the Department of Veterans Affairs is a desirable pre-requisite to maximum benefits under Repatriation leqislation. Continuity of approach would be preserved provided such appeals and approaches were made within three months of the receipt of advice of each untavourable decision. In the member's nase, there was a good twenty-Lhree years between advice of the Repatriation Hoard's refusal of his claim in respect of 'constant gnawing pain in stomach' in 1953 and his appeal to the Commission in 1976, a gap of some Een months between the advice of the Commission's determination in 1976 concerning duodenal tlhcer and his appeal to a Tribunal in 1977, and a gap of nearly three years between the Tribunal's decision in 1978 and the submission of further evidence in 198L (De Armati'''s opinion) which led to tne acceptance of duodenal ulcer. The appropeiate part in this case 1s section 107V2ZC(1)(£) of the Repatriation Act which states that a decision of the Commission under section 107VM of the Act shall not be expressed tu vperate from a date earlier than four years, or such longer period as the Commission considers appropriate in the special circumstances of the case, before the day on which the relevant decision 1s made. Special ciecumstances in this context can cover an infinite variety of circumstances depending on the facts of individual cases. It would be impossible to give an exhaustive list. Such circumstances recognised in the past include situations where there has been an undue delay in the processing of the member's application and such delay has not been the fault of the membe:, cr where a decision in a particular case is deferred pending the outcome of cases similar in nature that may presently be before the Courts. Special circumstances may alsa be said ko exist where there has heen a concinuity in the member's appeal and approaches to the Department of Veterans' ' 19. Affairs in attempts to have a particular incapacity accepted as being service-related. These are not the circumstances of Mr Hanley's case. The further evidence lodged an the member's behalf by the Australian Leqal Aid Ufifice in respect of his claim for acceptance of duodenal ulcer was received on 1l December 1981, whereupon it was registered, referred to a Delegate of the Repatriation Commission who requested the opinion of a Senior Medical Officer (Appeals) on the line of arqument used in the further evidence. I[t was Lhen referred back tao a Delegate of the Repatriation Commission after the Senior Medical Officer (Appeals) had given his opinion. The Delegate determined the claim on 23 June 1982." Mr Bell then referred to the circumstance that, had the determination of the Commission made on 17 November 1976 béen favourable to the applicant, the earliest effective date that could have then been fixed having regard to the provisions of section 29 of the Act would have been 8 July 1975, being the date six months before the date of lodgment of the appeal to the Couwmission, namely 8 January 1976. Ile noted that Mr Fury''s decision had been based in part upon the amendments to the legislation (particularly section 47) in June 1977 and that the War Pensions Entitlement Appeal Tribunal in making its decision on 20 December 1978 rejecting the applicant's claim was bound by the onus of proof provisions as so amended. Mr Bell went on - 20. "The delegate of the Repatriation Commission on 23 June 1982, or course, had Lhe added twraiqht af the medical opinion expressed by Dr L.V. Armatli sehichn Wat cecerved on LL December 1981, and smnich, then added toa the clher evidence already avallable te determining authorities, gave Che Delegate cause to be unable to be satistied heyond reasonable doubt that incarvacity resulting from ducdenal ulcer was not relalLed to the member's service." The deleqake Lhen set out the acyuments against setting a date earlier: than 23 June 1978 as the effective late as follaws - "While there may be no time limit For the lodament of an appeal under section 28 of the Repatriation Act, the legislative provisions contained in the Repatriation Aet which govern effective dares in general encourage a continuity of action with respect to claims by conferring maximum benefits to these who take action within set time limits. 1 particularly note the provisions contained in sections 101(3), 29, and 1LO7VZG of the Act. Clearly, the member did mot maintain any continuity of action in respect of his claim for acceptance of duodenal ulcer; Fhe major reason which led to the acceptance of duodenal ulcer as seryvice-related was the line of argument contained in De L.V. Armati's repart which was received on 11 December 1981. In effexrt, 1b was the argument proposed by De Armati which caused the Delegate of the Repatriaiion Cammissian not to be satisfied beyond reasonable duubt that incapacity resulting from duodenal ulcer was not related to the member's service; Lhe member's claim was determined without undue delav following the receipt of the Further evidence on 1] December 1981, and There are no other special circumstances 21. which would warrant the setting of an effective date earlier than 23 June 1978 in this case." Mr Bell swore an affidavit in these proceedings. Paragraphs 9 and 10 of that affidavit rea "9, In response to the request on behalf of Mr Hanley I provided a Statement of Reasons for my decision, a copy of which has been Filed in this Honourable Court by the applicant. That statement contains all of the reasons for my decision and all matters taken into account in forming my conclusion. I took no other considerations into account. 10. My decision was made having regard to Lhe material cantained in Departmental files relating to the applicant bearing reference number MX174387 and X61335." Mr Bell was not required to attend for cross-examination and no material countervailing the statements made in paragraphs 9 and 10 of his affidavit was placed before tne Court. The primary argument upor which the applicant relied to establish that Mr Bell had erred in law was that he had erroneously treated the matter before him as one to which the provisions of paragraph 107VZG(1)(f) applied. It was conceded that the determination made by Mr Fury that incapacity arising from duodenal ulcer should be accepted as being related lo the applicant's war service was a decision made under section 107VM and, Nw Nw therefore, one to which paragraph 107V2G(1)(f) applied. But, at was submitted. Mz Bell. in reviewing the effective date of Mr Fury's determination, was exercising the power conferred on the Commission by section 31 of the Act. The Commission's discretion under that section in such a review as Mr Bell was conducting was, so it was argued, unfettered by any of the provisions of section 107VZG or, indeed, by any other provisions of the Act wirh the exception of sub-section 101(3) which precludes payment of pension on and from a date earlier than three wonths before the date of lodgqment of the claim for pension. The appiicant's contention was that Mr Bell had posed for himself the wrong question. Whereas he had asked, and answered adversely ta the applicant, the question whether there were special circumstances warranting an effective date being fixed earlier than four years before the day on which Mr Turv's decision was made, he should have addressed the question whether there was any sufficient reason to do atherwise than to set the effective date of Mr Fury's decision at three months prior to the original claim, that 1s to say, three months before 6 August 1953. This was said to follow from the provisions of sections 31 and 47 of the Act. In my opanion the applicant's primary argument cannot be accepted. The decision made by Mr Fury that 23. incapacity arising Crom duodenal ulcer should be accepted as being related to the applicant's war service was a decision made under section 107VM. So much the applicant concedes. That decision was not the subject of review. What was the subject of review was Lhe consequential determination of the effective date of the decision made under section 107VM accepting incapacity from duodenal ulcer as service relaled. The decision made under section 107VM did not change its character by reason of Mr Beli's action in reviewing under section 31 the consequential determination as to the effective date of that decision. His task was to review what Mr Pury had done under section 107V2ZG with the consequence, in the particular circumstances of this case, that he was constrained by the provisions of paragraph 107V2ZG(1)(£) from fixing an effective date earlier than that under review unless he found special circumstances to exist. He correctly approached the task before him by asking whether there were present special circumstances warranting the fixing of an earlier date. T turn now to the alternative submissions made by counsel for the applicant on the basis that his primary submission might not be accepted. The first of those submissions was that the making of the decision was an improper exercise of the power vested in Mr Bell in that the power was exercised in accordance witha 24. rule or policy without regard to the merits of the particular case (see paragraph 5(1)(e) of the Judicial Review Acr réad with paragraph 5(2)(f+ thereof). In support of that submission counsel tendered in evidence the two letters addressed to che applicant to which reference has already been made, namely the letter dated 1 February 1983 signed by Senator A.J. Messnec, then Minister tf State for Veterans' Affairs, and the letter dated 3 May 1983 signed ny Senator A.T. Gretzelt who had by that time become the Minister of Slate for Veterans' Affairs. The letters were received in evidence subject to objyectian While it was common ground betwen Lhe parties Lhat copies of those letters were contsined in one or other of the departmental files referred to in paragraph 10 of Me Bell's affidavit, the text of which is set out above, the applicant expressly disclaimed any suggestion that Mr Bell had taisx«n the letters into account in reaching his decision. Tne letters were said to be ig] ar =) a relevant as dis ing a policy, which nad been laid pe] down by the Minister and which the Department of Veterans' Affairs was required to follow, limiting the circumstances which were to be treated as special circumstances for the purposes of paragraph 107VZG(1)(£) of the Act. It was said that Mr Bell had applied that 25. policy. It is debatable whether the letters set outa policy, as the applicant contends, or merely give illustrations of circumstances identified by the Commisszun as amounting to special circumstances for the purposes of that provision, as the respondent contends. But even if it be correct to regard the letters as enunciating a policy, I am satisfied that the policy so stated played no part in the decision-making process in that Mr Bell did not treat the matters referred to in those letters as being the only sets of circumstances that could be treated as amounting to special circumstances. The letters are, in my vupinion, inadmissible. The applicant also relied on certain passages in the statement of reasons for the decision as establishing that Mr Bell gave effect to a policy without regard to the merits of the particular case. In my opinion a fair reading of the statement of reasons does not support that contention. The relevant passages have already been set out. After stating that special circumstances in the context of paragraph 107VZG(1)(f) "can cover an infinite variety of circumstances depending on the facts of individual cases" and that it was "impossible to give an exhaustive list", Mr Bell referred to circumstances which had in other cases been regarded as sufficient to satisfy the test, 26. cLecumstances within which the applicant's case did not fall. He then went on to consiaer the circumstances of the applicant's case. Mr Hell's approach was, in my opinion, quite the reverse of that attributed to him by the applicant's argument. It was also submitted on behalf of the applicant that the making of the decision was an improper exercise of the power vested in Mr Bell in that irrelevant considerations had been taken into account and there had been a failure to take into account relevant considerations (see paragraph §$(1)(2) of the Judicial Review Act read with paragraphs 5(2)(a) and 5(2)(b) thereof). I shall deal first with the submission that relevant considerations were not taken into account. It was said that there had been a Failure to take into account matters tending to show that the applicant had suffered from duodenal ulcer from the time when the first claim was made on 5 August 1953 on the basis of "nerves" and "constant gnawing pain in stomach". In particular it was said that the decision-maker had failed to take into account the report of Dr L.K. Rasmussen who on @ December 1975 made a positive diagnosis of the presence of duodenal ulcer, the report of Dre Richardson dated 5 January 1976 and the opinions 27. expressed by Dr Grainger on 1] October 1976 that the applicant was at an age in 1953 (28 years) when it is unusual to be able to detect a duodenal ulcer on an X-ray, that duodenal ulcer was not in 1976 a new disability for the applicant and that, on balance, the applicant was suffering from that disability in August 1953. To each of those reports reference has already been made. The applicant has not satisfied me that Mr Bell failed to give consideration to the matters referred to in those medical reports. It 15 common ground that those reports were contained in the departmental files relating to the applicant and Mr Bell has sworn in his affidavit filed in the proceedings that in reaching his decision he had regard to the material contained in those files. As has already been mentioned, Mr Belli was not required to attend for cross examination and no material countervailing the statements made in his affidavit was placed before the Court. While it 1s true that no detailed reference is made in the statement of reasons to those medical reports, Mr Bell twice 1.efers in that statement to the fact that a positive diagnosis that the applicant was suffering from duodenal ulcer had been made by early 1976. It is also apparent from a reading of the statement of reasons that Mr Bell did not regard that 28. circumstance, considered either by itself or in combination with other circumstances, as being sufficient to amount to special circumstances so as to justify the fixing of an effective date as early as 1976. The degree to which Mr Bell regarded those medical reports as significant in determining the question before him was, of course, & matter for him. But a consideration of the whole of the circumstances leads me to conclude that the inference which the applicant suggests T should draw, namely that Mr Bell gave no consideration to those reports, is not reasonably oper.. That submission, therefore, fails It was also said that Mr Bell had taken into account an irrelevant consideration in that he regarded the statute as evincing a legisiative intention that an applicant may only obtain the maximum 1étrospective benefit if he has at all Limes pursued his claim, including any appeals, within three months of the nolification to him of any prior adverse decision. In my Opinion a fair reading of the statement of reasons dees not support the contention of the applicanc. Mr Bell drew atlention to the provisions of section 29, sub-section 101(3) and section 107VZG of the Act as provisions which, in the particular circumstances to which each is directed, permit greater retrospectivity to be granted to an applicant who has pursued his rights " 29. with continuity and within the time limits prescribed. It is clear that Mr Bell was contrasting what he described as "a desirable pre-requisite" to the granting of maximum benefits under the Act derived from a consideration of those provisions with the very lengthy periods during which the applicant had, for whatever reason, failed to pursue his claim tollowisng the notification to him of adverse decisions. in my opinion 1t cannot be said that to refer Eo the statutory provisions for that purpose was to take into account an irrelevant consideration. Indeed, as tas submitted by counsel for the respondent, Mr Bell's references to section 29, sub-section 191(3) and section 107VZG were made only in the context of consideriny whether the applicant's case fell within what had previously been recognised as special circumstances. Ik was also submitted that, as Mr Bell had referred to the history of the applications made by the applicant and the periods of time which had elapsed between the making of the various applications and the lodging of appeals after the notification of decisions adverse to him, Mr Bell should have taken into account the factors which led to such lengthy delays. Indeed it was said that Mr Bell was not only obliged to consider what material was avallable on this aspect of the matter on the frles which were before him but that he was bound 30. to undertake an inquiry into the factors leading to such delay. In my opinion neither of those submissions should he accepted. Mr Bell did not regard as relevant to the decision-making process in which he was engaged any proved or imputed fault in the applicant in failing to pursue the avenues of appeal open to him. It was, therefore, not incumbent upan him to inquire into the matters mentioned. But, as has already been said, he has deposed to having had regard to the matters contained in the files identified by him and T have accepted that he did so. One af those documents was the applicant's letter dated 28 June 1983 to the Secretary, Department of Veterans' Affairs and to this letter Mr Bell expressly refers in the statement of reasons. That letter set out, inter alia, the reasons which the applicant said led to the delays and the matters which he said should be taken into account in determining the effective date of the decision. it has not been established to mv satisfaction that tr Bell was unmindful of those factors though he obviously regarded them, as he was entitled to do, as being insufficient to warrant the fixing of a date earlier than 23 June 1978. In the result I am not convinced that the applicant has made out any case for the Court ta 31. interfere with the decision under review The application 1s therefore dismissed with costs. T certify that this and the preceding 30 pages are a true copy of the Reasons tor Judgment herein of the Honourable Mr Justice Neaves. Ceilhy Mogan ~ AssOcia Dated: 14 December 1984