34 CATCHWORDS ADMINISTRATIVE LAW - Social security - Invalid pension - Appeal from Administrative Appeal Tribunal - Appellant fit only for selected duties - No evidence that such duties available - Uncontradicted evidence as to absence of suitable employment - Whether Tribunal bound to act on such evidence - Whether appellant 'permanently incapacitated for work' - Whetner appellant entitled as a matter of law to a grant of a pension. MURRAY DOUGLAS McBAY V DIRECTOR-GENERAL OF SOCIAL SECURITY G.35 OF 1983 Social Security Act 1947 ss.23, 24 Administrative Appeals Tribunal Act 1975 s,.44 Re Panke and Director-General of Sociai Security (1981) 4 ALD applied WILCOX J 15 FEBRUARY 1985 SYDNEY te SI IN THE FEDERAL COURT OF AUSTRALTA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.35 of 1983 ) ) GENERAL DIVISION BETWEEN : MURRAY DOUGLAS McBAY Appellant AND: DIRECTOR-GENERAL OF SOCIAL SECURITY "Respondent ORDERS CORAM WILCOX J DATE 15 FEBRUARY 19385 PLACE SYDNEY THE COURT ORDERS THAT: i. The appeal be allowed. bo - The decision of the respondent to refuse the application of the appellant be set aside and the application be remitted to the respondent for reconsideration in accordance with a direction to treat the applicant as being permanently incapacitated for work and ac haying been sa incapacitated since the date af the application. 3. Leave is reserved to both parties for either to apply te the Administrative Appeals Tribunal for such directions as may be appropriate or necessary with regard to any benefits, other than an invalid pension, received by the appellant under the Socia Security Act 1947 since the date of the said that extent and for that purpose, the matter Administrative Appeals Tribunal. 4, The respondent pay the costs of the appeal to this Court. application and, to is remitted to the appellant of the IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.35 of 1983 ) GENERAL DIVISTON ) BETWEEN : MURRAY DOUGLAS McBAY Appellant AND: DIRECTOR-GENERAL OF SOCIAL SECURITY 7 Respondent REASONS FOR JUDGMENT CORAM: WILCOX J DATE: 15 FEBRUARY 1985 PLACE: SYDNEY Murray Douglas McBay, the appellant, applied, pursuant to the Social Security Act 1947, for the grant of an invalid pension. Sections 23 and 24 of that Act provide: "23. For the purposes of this Division, a person shall be deemed to be permanently incapacitated for work if the degree of his peymanent incapacity for work is not less than 85%, 24. (1) Subject to this Act, a person above the age of 16 years who is not receiving an age pension and - (a) is permanently incapacitated for work or is permanently blind; and 2. (b) is residing in, and is physically present in, Australia on the date on which he lodges his claim for a pension, shall be qualified to receive an invalid pension." The respondent, the Director-General of Social Security, rejected the application on the ground that the degree of Mr McBay's incapacity was less than that required for qualification for an invalid pension, that is to say that he did not have a permanent incapacity for work of not less than 85%. Mr McBay appealed against that decisicn to the Administrative Appeals Tribunal. The Tribunal, constituted by a Senior Member, dismissed the appeal. From that decision Mr McBay appeals to this Court contending that the Tribunal erred in law in coming to the conclusion that the appellant nad not demonstrated a permanent incapacity of not less than 85%. Tribunal, aged 52 years. He is a qualified motor mecnranic and worked for many years in the motor trade. In 1972 he injured nt returned to s a imself when lifting a gear box but after treat re] we ie} ps. n su te ts work. He continued to experience pain and in Apri laminectomy was performed. Hight weeks after this surgery he a a returned to work but he fount difficulty with some operations and began taking time off. In August 1976 he left his job and began working at home, doing light mechnical repairs. This proved difficult and he obtained a job at a garage doing light under-bonnet work with help. The assistant was retrenched, forcing him to give up the job. Once again he tried to work at home but this proved too difficult. He gave up work in September 1979 and has not worked since. A number of medical reports were admitted in evidence before the Tribunal. In addition oral medical evidence was given by a consultant neurosurgeon, Dr R G Rushworth - called by the appellant - and by Mr Frederick Ehrlich, a surgeon called by the respondent. The Tribunal, in making its findings, chose to rely primarily upon the evidence of Mr Ehrlich. Counsel for the appellant accept, as they must, that this choice was a decision as to fact and not susceptible of appeal to this Court. They argue however - and this was their first ground of appeal - that the Tribunal erred in law in framing, and acting upon, findings which purported to summarise the views of Mr Ehrlich but which, so they contend, in fact disregarded certain significant qualifications which Mr Ehrlich attached to those opinions in his evidence. In the result, it is said, the findings of the Tribunal as to the appellant's medical condition, though purporting to be based upon Mr Ehrlich's evidence, lack any foundation in the evidence before the Tribunal. If that ground - and that ground alone - were made cut, the matter would have to be remitted to the Tribunal for further consideration upon the basis of the evidence, properly understood. 4. I have reached the conclusion that the appellant is entitled to succeed upon his second ground of appeal and that upon the basis of Mr Ehrlich's evidence - whether or not summarised with sufficient accuracy in the Tribunal's decision - Mr McBay is entitled as a matter of law to a direction that the respondent deal with his application upon the basis that he meets the test imposed by s.23 of the Social Security Act. Under those circumstances there is no need for me to determine the correctness of the first ground argued by counsel for the appellant. In his report, which was admitted in evidence before the + Tribunal, Mr Ehrlich proferred this opinion in relation to the appellant: "His history and findings are consistent with the diagnosis of having had a lumbar disc lesion and it seems that surgery, whilst improving his condition, has not led to sufficient relief to return him to his former duties. In my opinion, the claimant is not fit for the types of duties carried out in the past but would be able to cope with the lighter work not involving frequent stooping or heavy lifting tasks. Work permitting a variety of postures such as standing about, sitting or moving about from time to time would be particularly suitable. Part time work would probably be the most he could aspire ta. Discomfort is likely to continue at various levels probably for the rest of life. Bouts of aggravation are to be anticipated particularly if provoked by undue stresses such as stooping or lifting or sudden or excessive movements but may well occur spontaneously for no provocation whatever. It is therefore concluded that, whilst a good deal of disability may well exist in this case this nevertheless permits a variety of selected occupations should these become available. It seems therefore inappropriate to estimate disability to be as high as eighty five per cent in this case, at least from the surgical point of view. It is, however, recognised that there may be enough restriction to render employment very difficult against the background of the present socio-economic climate. At the age of 52 furthermore it is unlikely that any rehabilitation programme directed towards returning people to full time employment is likely to undertake such a case. He would probably be able to cope with part time light mechanical work (eg re-conditioning motor cycle engines at a work bench) without the need to seek a rehabilitation programme but exploration of such options is rather outside the traditional clinical sphere." In his oral evidence in chief Mr Ehrlich elaborated his view as to work prospects: "90 You say that while he certainly has evidence of a lumbar disc lesion, that he would be able to cope with lighter work not involving frequent stcoping or heavy lifting? A Yes. I qualified that a little further, I think. He certainly has a significant back problem, I thought, and he certainly would have substantial limitations in his capacity to work. Q He certainly could not do his prior job? A No, he would have to get into difficult postures and crawl under vehicles and lift heavy weights, and he conld not dn that. If sufficient selected duties could be found for him, such as would not require much bending and lifting, would not require him to sit all day or to stand all day, or walk all day, which would permit him to change his position and pattern of movement from time to time, I think he could cope, yes. na 6. What about work of a process nature at an assembly Line, provided he does not have to sit or stand all the time? Yes, that should be right. If he worked at some assembly line handling motors he would not have to lift, or were so light he could lift them easily and would not have to keep the same posture all the time, he would probably be all right. Would you say, in the light of your examination and findings in relation to his back complaints, that he would be able to handle a position at a self service station operating the till and taking a person's money, and so on, who bought petrol, and served at the counter? Yes, I think that would be a suitable position. In respect of the jobs you have mentioned, you perceive he would be able to do them over a normal working day, a normal working week? Probably, I think he has had enough back trouble in the past to have a risk of having acute upsets again. He might have some absenteeism. I can envisage this man might have bouts of acute back pain, keeping him off work from time to time, but again I think he should be able to cope with suitable Light work if it could be found. This could be covered under the sick leave provisions that would apply to particular employment? Yes, with any luck, yes. Would you see any clerical work, where he is mainly in a sedentary position, being within his capacities? ; Providing he would not be desk bound ail day, if he could walk around and do a little message, and walk around, this would be all right. He certainly would not he able to do any job that required a fixed standing position or a fixed sitting position, or standing most of the time? I think that would be trying him rather hard. He might be able to cope with it, but he might he uncomfortable. From your examination, do you consider that Mr McBay has a severe or only a moderate back complaint? I do not know if such terms are particularly useful. I think he has a significant back problem. I am sure he has got a back problem." In cross-examination Mr Ehrlich expressed the opinion that the appellant's condition would not improve, and that, if anything, it would probably get worse as he got older. He accepted that the appellant genuinely suffered with pain and that the pain was a chronic problem. His evidence went on: "9 IO His pain would be exacerbated by any significant physical effort? Yes, probably. So if he was to start lifting anything more than a very light weight, that would cause him pain, would you agree? It could. He might get away with it some of the time, but I do not think he would be too wise to risk it. When you say risk it, do you feel he can do himself some damage? Not in the sense of acceleratinng his spondylosis, but I think he could well produce acute symptoms. He could do himself damage in the sense that he could have an acute back pain which might put him to bed for days on end. Could that back pain extend for weeks? Yes. Could he do any permanent damage by exerting himself beyond i n Ziv? Anybody can do that. Anybody who exerts himself or herself beyond their capacity can inflict pain. He has a vulnerable spine, a degenerating spine. At his age, with his history, he would be well advised to avoid heavy lifting. Also in his stooping he would find it difficuit? Oo FP CO PO PO UP Hg "Q "Q Yes. That would also cause him pain? It may well do so, yes. And prolonged sitting would cause back discomfort? Yes, it could. And also walking long distances would cause him discomfort? Yes. Standing in the one place for a long time would cause him discomfort and pain? Yes." 2... Did he appear to you to be a person who enjoyed working and would like to work if he could get the cpportunity? I thought that was so, yes. I did not think he was shirking work. I did not think he was trying to put anything over. So you say in your report, under the heading of opinion, that you consider part time work would probably be the most he could aspire to? To be realistic, yes. . So therefore he would need a very generous employer who would not want him to sit too long, who would not want him to stand too long, who would allow him to take frequent rests and walk around, who would not mind if he took days off from time to time and possibly weeks, and who would be prepared to employ him for only a few hours a day? Yes. I do not know if the employer has to be very generous to do that. I think if I were running a repair business for lawn mowers and I wanted to look for a competent mechanic who would work as he felt able to do, and if f had some assembly set up where the motors are more or less at face level so you do not have to bend down too much, then I wouid be quite happy to employ a chap like that, not out of generosity, just out of commercial sense." What you are suggesting is if he was to do this type of work, that some other person would have to lift the machine up to the bench and lift them back down for him, and de any heaving lifting that might be necessary? A A 9. I said before I do not think he should do heavy lifting. He may well get away with it, but were he my patient, I would say to get other people to do the lifting for you. He could fit into a set up, if there is such a set up existing, the set up would be that he is a mechanic and he should be able to fix motors, pistons, cylinders, valives, whatever mechanics do, and if the work could be provided in such a way that the stuff is more or less at a comfortable working level, say a bench top, that the motors were not huge motors, that they were,say, lawn mower motors or motor cycle motors, that he would not have to be glued to his workbench all day, but he could go and get a bit of grease, and ring up and find spare parts for it, it would turn out that he might be able to sit some of the time or stand some of the time, or walk about. He is capable of all those things, provided it is not done in a straight eight hour shift without changing the pattern of the movement or the rhythm. There are a lot of probabilities that would have to be available for him to get the type of job that would he suitable for him and his back, would you agree? Of course. And you also said in your report that with his restriction, it would render employment very difficult against the background of the present social, economic climate? TI was aware of all the things you have brought up. T that you would have to have very tailormade working conditions and these days beggars cannot be choosers - he might in fact not be able to find such a job. He is capable of doing a job. The sad thing is a man with his lifelong experience of being a mechanic and his desire to do some work and his ability to do some work is virtually unplaceable at the moment, I would imagine, but that is how things are. You have recommended motor cycle engines at a work bencn? Ihave. I have just made this one up. There are other things he could do. That is precisely it. You have just made that up, that is the situation, is it not? Of course. What I really tried to convey is a picture of 4 man with limited ability who can work provided - and I listed the provisos and I am giving an instance of the kinds of things that could fit in. There might be other jobs outside motor mechanics that he could do. 10. Q You do not know if any of the jobs are available and would be offered to this type of man, do you? A Of course I do not." No evidence was placed before the Tribunal as to the existence of any job providing the "tailormade working conditions" which Mr Ehrlich thought necessary to enable Mr McBay to return to the work-force. In particular there was no evidence that there existed the opportunity for employment in either of the two situations specifically mentioned by him: working as a motor mechanic at an assembly line or at a bench, without lifting or bending, or operating the till at a self service station, with the opportunity to stand and move around as he wished. There was evidence pointing in the opposite direction. This took the forn of a letter prepared for the purposes of the appeal by Mr Ostler, Employment Office Manager of the Auburn Job Centre of the Commonwealth Employment Service. This letter read, in part: "On the basis of the medical information supplied relating to his physical capacity, and bearing in mind that Mr McBay is 52 years of age, and the fact that he is unable to continue working in his own trade, his employment prospects in both long and short terms would be very remote. It is highly unlikely that Mr McBay will be able to secure & part time position, given current economic conditions, whilst his chances of obtaining full time employment, even on any possible base of light duties, would be virtually implausible because of several factors apart from those already mentioned, including the extremely high number of retrenchments within the Auburn il. area, the number of additional people (or spouses) seeking second jobs to supplement their income, and the traditional influx of school leavers at this time of year. All of the above factors when combined create a situation of fierce competition amongst job-seekers, and Mr McBay would be trying to obtain employment on the open market ata time when there are traditionally fewer vacancies being received at this time of year, and given that employers are generaliy less inclined to put staff on in the current economic recession. In view of all factors mentioned, Mr McBay's chances of obtaining employment would appear to be extremely limited." The letter from Mr Ostler was tendered by counsel for the appellant without objection on behalf of the respondent and was admitted as evidence of the facts and opinions stated therein. The respondent did not require the attendance of Mr Ostler for cross-examination. Consequently, and in the absence of special circumstances or an agreement to the contrary, the respondent must be treated as having conceded the correctness of the content of the letter: see Phipson, Evidence (13 edition) para 33-69 and Browne v Dunn £18941 R.67 at pp 70-71, 76-77, Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 1 at pp 16-18. In any event, and apart from concession, the opinions set out in the letter were in relation to matters in respect of which Mr Ostler had expert knowledge. The opinions were not inherently unreasonable. They were uncontradicted. Under such circumstances the Tribunal was bound an to accept the correctness of the views expressed: ses Holman + 'Oo N Holman (1964) 81 WN (NSW) 374, Hardy v Gillette £19761 VR 3 and 12. my discussion of those cases in Repatriation Commission v Reid (1984) 54 ALR 157 at pp 162-163. No doubt the letter must be read as limited to the situation within the Auburn area but Auburn is not only the suburb of Sydney within which the appellant resides but is a major industrial centre with emphasis upon the motor industry. Under these circumstances Mr Ostler's conclusions that, within the Auburn area, the employment prospects of Mr McBay, having regard to his physical capacity and age, are in both the long and short terms very remote, that his chances of obtaining full-time light employment are "virtually implausible" and that it is "highly unlikely" that he could obtain part-time employment constitute powerful evidence that Mr McBay is, under present economic conditions, in practical terms unemployable. cr oNs The Tribunal did not, in its decision, refer Ostler's letter. The reasoning of the learned Senior Member is contained in para 9 of the Decision, as follows: "IT accept Mr. Ehrlich's assessment as a well-considered and sympathetic one. There is no suggestion that there is any psychological difficulty or "functional overlay"; but I have perused the reports of Drs. Lucire, Gatenby and Mrs. Egan. The present socio-economic climate is a difficult one in regard te the finding and holding of jobs, for anyone, let alone someone with a significant back disability. The applicant has obviously shown himself a most competent tradesman, and a man of resource as shown by his being able to survive, as he put it, by taking in lighter mechanical work at home, until he found himself too much troubled with pain. I think it to be established on the 13. probabilities that there are a range of jobs ith which he could physically cope, though sometimes experiencing pain and loss of work time. His years of experience would I consider render him better equipped than most to undertake garage supervising work or th running of a self-service petrol station, inter alia. And it is likely I consider that aman of his responsibility and experience and mechanical ability, would be ahead of others in the scramble for jobs at the present time. I find the case a somewhat aifficult one to decide; but doing the best I can with the evidence placed before me, I believe it not to have been shown on the probabilities that the applicant is permanently incapacitated for work Eto a degree of not less than 85%. That being so, the decision appealed against should be affirmed." ty ct The complaint of the appellant is that, aithough the reasoning makes passing reference to the difficulty of somecne in yegard to the evidence in relation to the availability of suitable work. The appellant refers to Re Panke and Director-General of Social Services (1981) 4 ALD 179, a decision in which the Tribunal sought to state the principles gover the application of ss. 23 and 24 of the Social Services Act to I persons fit only for selected duties. In that case the President of the Tribunal, Davies J, expressed the view that Services Act is weifare legislation designed to supplement the -h oO os fe) @ rs w ie)in | ili) a o A y ff income of and to provide other benefits £ pointed out that the phrase "incapacity for work" had a long history of use in workers' compensation legislation and cited passages from decisions in both the High Court of Australia and 14. the House of Lords which indicated that, in such a context, a person suffering such a physical defect as to make his or her labour unsaleable in any reasonable market is incapacitated for work. The following sentence from the judgement of the Full High Court in Wicks v Union Steamship Company of New Zealand (1933) 5¢ CLR 328 at p 338 is particularly telling and relevant to the present case: "This condition" (ie physical incapacity for work) "is satisifed when capacity for earning has gone except for the chance of obtaining special employment of an unusual kind". Davies J applied the workers' compensation cases to conclude that "the term incapacity for work in the Social Services Act denotes incapacity to engage in remunerative employment, that is to say, a lack of capacity for earning". The other members cf the Tribunal in Panke, Mr A N Halil (Senior Member) and De M Glick (Member) delivered a joint decision, with which Davies J expressed his agreement in substance. They noted the submission made to them on behalf of the applicant "that a person is wholly incapacitated for work in the relevant sense when he has a physical defect which makes his labour unsaleable in any mark*t reasonably accessible to him" and contrasted the submission put on behalf of the Department that incapacity was independent of ""impermanent factors such as the present state of the economy or of the labour market reasonably accessible to an applicant for invalid pension". The Department 15. conceded that it was proper to have regard to the type of jobs that exist as jobs in the community and that might be suitable to be undertaken by a person in the position of the applicant but it submitted that it was irrelevant to consider whether any such job was available to the particular applicant. After referring to various judicial decisions in the area of worker's compensation law, to the history of Commonweaith Legislation in respect cf social services and to the relationship between the provisions of the Act relating to the payment of unemployment benefits and of invalid pensions the two members rejected the submission put on behalf of the Department, holding that regard must be had to the availability of suitable work to the particular applicant. This involved, they said, two distinct steps - "firstly an evaluation in purely medical terms of the person's physical or mental impairment and secondly, the ascertainment of the extent to which i fF t. that physical or mental impairment affects the person's abi y ¢ to engage in paid work". They concluded their discussion of ths relevant principles by saying: "In our view, it is not enough for the purposes of s 23 of the Act, to have rvegard in any abstract sense, simply to "jobs that exist as jobs" in the community. The provisions of the Act with respect to unemployment benefits . . . indicate that when the Act refers to capacity for work, it is concerned vith the canacity to undertake paid work that is suitable to be undertaken by a person. ft is only after a fair assessment of the extent of the person's physical or mental impairment and the impact which that impairment is likely to have upon his capacity to undertake suitable paid work that, in our view, a proper assessment of the degree of incapacity can be made. 16. The assessment of what work is suitable to he undertaken by a person would appear to require consideration of matters such as the nature and extent of his disabilities, his capacity to sustain his work effort throughout a normal working day or week, his age, his previous work experience and the types of paid work available in the community which a person with those characteristics may reasonably be expected to be able to perform. Tf in a case of difficulty a medical practitioner doubts his competence to make such an assessment he will no doubt need to qualify his report in some suitable respect so that the matter can be further considered by the Director-General. The degree of incapacity will then depend upon an assessment, in each individual case, of the extent of the residual capacity for suitable work against the capacity for work which the person, absent his physical or mental impairments, might have expected to enjoy." The decision in Panke has been applied in numercus subsequent decisions of the Tribunal; see: Re Pardo (1981) 4 N21, Re Robertson (1981) 4 ALN N21, Re Webb (1981) Re Re Picci & ALN N22, (1981) 4 ALN N73, Re Milosaljevic (1982) 4 ALN N13, ALN Papadopoulos (1982) 4 ALN N284, Re McGeary (1982) 4 ALN N316, Re Di Palma (1982) 19th April, 1982), Re Howard (1983) 5 ALN N178, Re Verv (1983) 5 ALN Ni58, Re Dabbach (1983) 5 ALN N235, Howard 4 ALN N319, Re Mihailov (unreported V81/199 Director-General of Social Security (1983) 5 ALN N369, Re Fliedner (1983) 5 ALN N402, Re Zammit (1984) 5 ALN Né Re Sanderson (1984) 5 ALN N514. Vv at Fa 17. Panke was discussed, without disapproval, by a Full Court of this Court in McDonald v Director-General of Social Security (27 March 1984, not reported) but the point at issue in that appeal was'a different one: the duration of the anticipated incapacity necessary to constitute 'permanent' incapacity. The decision was referred to, again without disapproval, by Fitzgerald J in Howard v Director-General of Social Security (14 December 1983, not reported). In Khalil v. Director General of Social Security (6 December 1984, not reported) Morling J. expressed agreement with the decision but the contrary was not argued. It has not yet been necessary for this Court, as such, to consider argument as to the correctness of the views expressed in Panke which I have set out above. I find the reasoning in the decision persuasive but, once again, the contrary has not been argued. Having regard to that fact, to the fact that the decision was one to which a judge of this Court was a party, in his capacity as the President of the Tribunal, and to its acceptance in subsequent decisions of the Tribunal it is appropriate to deal with the present matter on the basis, without so deciding for myself, that the principles set out in the decision are correct. The application of Panke to the present case requires, first, an evaluation in medical terms of the extent of Mr McBay's physical disability. The Tribunal accepted the evaluation of that disability made by Mr Ehrlich. Secondly, it is necessary to ascertain the extent to which that disability impairs his ability to engage in employment. I have already quoted the view of Mr Ehriich on that question. His assessment, in summary, was 18. that, at most, Mr McBay could aspire to employment under 'a very generous employer who would not wish him to sit too long, who would not want him to stand too long, who would allow him to take frequent rests and walk around, who would not mind if he took days off from time to time and possibly weeks, and who would be prepared to employ him for only a few hours a day'. These are most significant constraints. Any job which met those limitations would aptly be described, in the words used in Wicks, as "special employment of an unusual kind". There is no evidence that such employment is available to Mr McBay. Upon the contrary, the evidence of Mr Ostler which, as I have already indicated, the Tribunal was bound to accept, indicates to the contrary. It follows that, once it is accepted, as Pankse requires, that regard must be had to the availability of work for the particular applicant, with his particular disability, the only conclusion open to the Tribunal upon the evidence was that Me McBay is permanently incapacitated. The Tribunal should have allowed his appeal. As this is a conclusion of law there is no advantage to be gained by my remitting the matter to the Tribunal. Section 44(4) of the Administrative Aspeals Act empowers this Court, in determining an appeal to it against 2 decision of the Tribunal, to make such order as it thin fa ui appropriate by reason of its decision. I propose to make the order which, in my opinion, the Tribunal was - and would cn remittal be - bound to make, namely a remittal to the Secretary 19. of the Department for reconsideration on the basis that the applicant is, and has since the date of his application, been permanently incapacitated for work. Before parting with the matter I should draw attention to the time which has elapsed in the determination of this clain. The application for a pension was lodged on 30 June 1980. If was rejected on 29 September 1980. On 14 October 1980 Mr McRay lodged an appeal to the Social Security Appeals Tribunal. Almost a year later, after various medical examinations and a review of the decision by that Tribunal, the Director-General re-affirmed his refusal of the application. On 29 October 1981 Mr McBay sought review in the Administrative Appeals matter was not heard until 20 and 21 January 1983, the decisicn hu being announced during the following week. On 25 February 1983 Notice of Appeal to this Court was filed. The Apgeal Book, which could have been prepared within days, was not filed until 21 December 1983. For reasons which counsel were unable to explain to me no steps were taken to bring the matter on for hearing until, on December 1984, I fixed it for hearing on the first day of this term, 4 February 1985. This decision, ho McBay is entitled to receive a pension, comes 4 years and eight > months after his application and over 2 years since the decisicn of the Administrative Appeals Tribunal. The delays invoived in bringing the matter on before the Administrative Appeals Tribunal and before this Court reflect no credit upon the solicitors far the appellant. It may be that, in fairness to applicants and in 20. order to avoid bringing into disrepute the system of administrative review, the Department should institute procedures routinely to monitor the progress of appeals and, where necessary, to take action to ensure that cases proceed efficiently. I certify that this and the yereen Cia) preceding pages are a true copy of the Reasons for Judgement herein of his Honour My Justice Wilcox. Associate Kowwrd Siw ee tae Date IS- Qe ee