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Canberra CATCHWORDS ADMINISTRATIVE LAW - Repatriation - appeal from decision of Repatriation Review Tribunal - failure to consider entitlement to disability pension at intermediate or special rate - consideration of physical capacity only and not of ability to earn - not open to Tribunal to be satisfied beyond reasonable doubt that insufficient grounds for granting claim Repatriation Act 1920 (Cth) Schedules 1, 2, ss.24AA, 35, 35AA, 43, 47, 101, 107VD, 107VG, 107VH, 107VK, 107V2Z2H Repatriation Legislation Amendment Act 1984 (Cth) s.59 Bowman v Repatriation Commission (1981) -34 ALR 556 Repatriation Commission v Bowman (1981) 38 ALR 650 Repatriation Commission v Moss Moss (1982) 40 ALR 553 Cardiff Corporation v Hall "E1911 1 KB 1009 Repatriation Commission v Law (1981) 147 CLR 635 Repatriation Commission v O'Brien (1985) 155 CLR 422 Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 Jones v Dunkel (1959) 101 CLR 298 Sprod v Repatriation Commission (unreported, 13 December 1985) A.R.M. Constructions Pty Ltd Vv Deputy Federal Commissioner of 'Taxation (1986) 86 ATC 4213 Proestos v Canberra Rex Hotel Pty Ltd (1985) 64 ACTR 110 BETWEEN : COLIN CRANSTON MUNT Appellant AND H REPATRIATION COMMISSION Respondent No. SA G.42 of 1985 CORAM : Davies, Sheppard, Burchett WS «fB 28 July 1986 ws "go Wd 27 9861 INF SZ seo ee Fore or te PL . IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. 5A G.42 of 1985 } GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : COLIN CRANSTON MUNT Appellant AND : REPATRIATION COMMISSION Respondent MINUTE OF' ORDER JUDGES MAKING ORDER : Davies, Sheppard, Burchett JJ DATE OF ORDER WHERE MADE 28 July 1986 : Canberra THE COURT ORDERS THAT 1. 2. The appeal be allowed. The order of the trial Judge be set aside and in lieu thereof it be ordered that the decision of the Repatriation Review Tribunal be set aside and that the matter be remitted to the Administrative Appeals Tribunal for re-hearing and determination according to law. The respondent pay the appellant's costs of the hearing below and of this appeal. Note : Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ee ep cae ape eg > 7 1, . a ee at? IN THE FEDERAL COURT OF AUSTRALIA ) ; ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA G.42 of 1985 ) GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : COLIN CRANSTON MUNT Appellant AND : REPATRIATION COMMISSION Respondent " REASONS FOR JUDGMENT . - , CORAM : Davies, Sheppard, Burchett JJ 28 July _ 1986 DAVIES J : I have had the opportunity of reading the reasons for judgment prepared by Sheppard J. I agree with them and wish only to add a few words of my own. At the date of the decision of the Repatriation Review Tribunal, the appellant, Mr C.C. Munt, who was born on 24 April 1921, was 63 years of age. He had the following disabilities Stachadis datieiaica hair aieentinaiet iar oid ne enn oe a ee fy yma Ser ee et ne ey oe ces sae eee eee aan ee ae . a ~% which had been accepted as service related : antral sinusitis, anxiety state, chronic bronchial asthma, hypertension, ventricular ectopic beats and angina pectoris. He had been Group Accounting Controller for Bridgestone Australia Pty Limited. He retired on 28 August 1982 at age 610m medical grounds, the disabilities being substantially those which were accepted as service related. On 17 June 1982, Dr R.B. Hodgson, the Chief Medical Officer of Bridgestone Australia Pty Limited, had reported to the Mutual Life and Citizens Assurance Company Limited, the company which conducted the superannuation scheme for Bridgestone Australia Pty Limited, that Mr Munt was totally and continuously incapable of working and would remain permanently unfit for work at any time. That report accorded with an earlier report of 1 December 1981, given by Dr A. Tonkin, MD, FRACP, who had been involved in the management of Mr Munt for two years, who then said that he wouid support, on medical grounds, Mr Munt's early retirement. The Repatriation Review Tribunal had the task of assessing Mr Munt's incapacity from the accepted disabilities. The Tribunal assessed Mr Munt as having an incapacity which entitled him to 60% of the general rate under Schedule 1. The challenge made in this appeal did not direct its attention to that percentage, if the general rate were appropriate. I make no comment upon it save that I do not proceed upon the assumption that the assessment was correct. The appeal was brought on the ground that the Tribunal did not consider Mr Munt's entitlement to, and did not hold Mr Munt _— to be entitled to, the intermediate rate in Schedule 1 paragraph 6 of the Repatriation Act 1920 (Cth), which specified the test that ",.. the incapacity of a member of the Forces is such that he is unable to earn a living wage by a reason that he is unable to engage in remunerative occupation except on ae part-time basis or intermittently ...", or the special rate, in respect of which Schedule 2 specified that it may be granted to ",.. members who are totally and permanently incapacitated (i.e. incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage)." In its reasons for decision, the Tribunal does not indeed appear to have turned its attention to Mr Munt's entitlement to either the intermediate or the special rate of pension. The Tribunal did not discuss capacity for work as enunciated both by Ellicott J in Bowman v Repatriation Commission (1981) 34 ALR 556 and, on appeal, by Bowen CJ, Deane and Lockhart JJ in Repatriation Commission v Bowman (1981) 38 ALR 650. Diminished capacity to earn is a relevant but not determinative factor in incapacity for the purposes of the general rate. For the purposes of the special and intermediate rates it is the determinative factor. Paragraph 6 of Schedule 1 turned its attention to the veteran's ability to engage in a remunerative occupation and, if there was an ability, whether on a full-time, part-time or intermittent basis. Schedule 2 turned its attention to an incapacity which precludes a veteran from earning other than a negligible percentage of a living wage. gr oe ee ee - 4. ete 8 tae wet oe ad ye wenn ot ee nc eer, acer =~ FRR TO UT ey ai re : mrs nas pee te . 5 ae AP ad Both tests looked not merely to the veteran's physical capacity to engage in work but also to the veteran's ability to attract work by employment or otherwise, having regard to the veteran's service related disabilities. As Ellicott J said in Bowman's case, cited above, at p.566, "... It is not enough simply to form a view that an applicant in a physical sense can still undertake work despite war-related injuries. The incapacity so arising may well have destroyed or impaired his or her earning capacity in the market place. The Full Court approved this approach. At pp.654, their Honours said, "We find ourselves in agreement with the orders of Ellicott J and with the reasons which he gave for them. His conclusion that the Tribunal had failed to consider Mr Bowman's capacity '* to earn remuneration by employment by finding work for which it was said he was fit, was not really challenged before us. ..." The Repatriation Review Tribunal did not undertake the task to which their Honours adverted, but simply said, "The Tribunal finds that although the Applicant ~~ ceased work on 28 February 1982 (sic), he is a qualified accountant and he would be able to perform sustained light work only." This finding touched only upon Mr Munt's physical capacity. It did not examine his ability to earn. The Tribunal had before it evidence that Mr Munt had been retired from his employment with Bridgestone Australia Pty Limited on the ground of medical invalidity and therefore that he had an incapacity to earn in that occupation. The Tribunal had before it no evidence that he would be able to gain other employment. Though in the course of the hearing, many questions are cen ye ee oe ray had been put to him, no question was asked of him as to the work he might be able to obtain. In Bowman's case, cited above, Ellicott J referred to the desirability of evidence in relation to a matter such as this. His Honour said at p.567, ",.. After considering his war-related disabilities the Tribunal formed the view that he can cope with suitable full-time sedentary employment in a low stress environment, but that this employment would involve his taking frequent breaks of hours or perhaps days. The Tribunal qualified its finding by the statement 'if such work could be found for him'. In the absence of evidence it must at least be open to doubt whether it could be found. If not available full-time, it would be necessary to inquire whether it is available ona temporary, part-time or intermittent basis and, if so, what remuneration he is likely to earn and how this would compare with a living wage." In my opinion, the Tribunal failed to observe this precept. As the Tribunal failed to consider and to apply the principles which were applicable to Mr Munt's circumstances, the Triubunal made an error of law. I would allow the appeal and would substitute for the order the subject of this appeal an order that the decision of the Repatriation Review Tribunal be set aside and that the matter be remitted to the Administrative Appeais Tribunal to be heard and determined again. I would order that the respondent pay the appellant's costs of the hearing below and of this appeal. | certify that this and the "* Preceding pages are a true copy of the reasons for judgment herein of The Honour- able Mr. Jusice J.D. Davies S Ridgewroy " Associate Dated "2€ Joly 19€& ee a nore we - if . : IN THE FEDERAL COURT OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY No. G42 of 1985 GENERAL DIVISTON BETWEEN : = COLIN CRANSTON MUNT Appellant AND: REPATRIATION COMMISSTON Respondent CORAM: DAVIES, SHEPPARD and BURCHETT JJ. DATE : 28 JULY 1986 > REASONS FOR JUDGMENT SHEPPARD J.: This is an appeal from the judgment of a Judge of this Court (Spender -¢.) dismissing an appeal brought pursuant to the provisions of the Repatriation Act 1920 ("the Act") from the decision of the Repatriation Review Tribunal dated 12 November 1984. The Tribunal had in turn dismissed an appeal from a decision of the Commission dated 8 December 1983. The decision of the Commission was given in respect of a claim made by the appellant for an increase in the amount of pension payable to him pursuant to the Act. ~ The appellant was born on 24 April 1921. He served in the \ =? ve epermr sser =v . Sr reste es cee ae nr a ha rhe oo? - te a i a Te ea es " oat any ' . 2. Royal Australian Air Force from 20 February 1945 to 18 July 1947. v His service included service in Borneo and Japan. On 15 August 1947 the Repatriation Board accepted that he suffered antral sinusitis and an anxiety state both of which were related to his service. From that date the appellant has received a disability pension. In 1947 and until the decision of the Commission in December 1983 the amount of the pension was 10 per cent of the general rate provided for in Schedule 1 to +the Act: see also Table C of Schedule 3. I shall refer to the relevant provisions of these Schedules in more detail later on. On 25 November 1982 the appellant applied for an increase in his disability pension. In his application he made reference to "sleep paralysis, chronic obstructive airways disease, hypertension, symptomatic ventricular ectopic beats and stable angina". On 20 December 1982 the appellant lodged a formal claim for an increase in his pension on these grounds. On 8 December 1983 a deleqate of the Commission determined:- a" "1. (Incapacity resulting from (1) Chronic Bronchial Asthma, -(2) Hypertension, (3) Ventricular Ectopic Beats, and (4) Angina Pectoris accepted under Section 101 of the Repatriation Act with effect from 25 August 1982 being a date- three months prior to the date of lodgment of the claim and .fixed in accordance with Sections 101(3) and 101(4) of the Act. —Extent: (1) Twenty per cent, (2) twenty per cent, (3) ten per cent, and (4) twenty per cent. Pension increased to the sixty per cent composite rate as from 25 August 1982. 2. This determination disposes of the application for increase in disability we meas "oe "Oo 3. pension lodged on 25 November 1982. Review ' in three years". On 29 December 1983 the appellant wrote to the Repatriation Review Tribunal seeking to have the Commission's decision reviewed. On 12 November 1984 the Tribunal decided to affirm the Commission's decision of 8 November 1983. From that decision the appellant appealed to this Court pursuant to s. 107VZZH. An appeal lies only-.on a question of law. There is no issue but that the appellant is entitled toa pension on—the ground that he suffers incapacity which has arisen out of or is attributed to war service; see para. 101(1)(b) of the Act. The question is as to the amount of that pension. Section 35 provides that, subject tos. 35AA, the rates of pension payable under the various Divisions, including Division 6 in which s. 101 appears, are those specified in Schedules to the Act. The claim made by the appellant was made pursuant to s. 24AA of the Act. His application for review by the Tribunal was made pursuant to para. 107VD(1)(a) thereof. The then provisions of s. LO7VH and sub-sec. 47(2) operated to require both the Commission and the Tribunal-to grant the claim unless each was satisfied beyond reasonable doubt that there were insufficient grounds for granting it. The relevant provisions of the Schedules are as follows. Schedule 1 provides for what has become known as the general rate fee ee whe , pave wey or nee eee 4. of pension. It is headed "GENERAL PENSION RATES". This heading is followed by a subheading which, so far as relevant, says, "TABLE OF PENSIONS PAYABLE, SUBJECT TO SCHEDULE 3, TO... A MEMBER UPON HIS TOTAL INCAPACITY". There follow 3 columns, the only relevant one being Column 3 which is headed, "Pension payable to Member on Total Incapacity". Underneath this column is the amount per fortnight which is payable in such a case. Clauses 3 and 6 of the Schedule are as follows:- "3, Where a member of the Forces is temporarily totallv incapacitated to such an extent as to be precluded from earning other than a negligible percentage of a living wage while he is so incapacitated. and where the aggregate of the rate of pension payable to that member under Column 3 of the table in this Schedule and the amount (if any) payable to him under Schedule 5 is less than the Special Rate of Pension specified in Schedule 2, the Commission may grant an additional pension to a member ata rate not exceeding the amount of the difference between that aggregate sum and that Special Rate of Pension for such period, whether in excess of six months or not, as the Commission determines. pense ereees ese seesee senses eseeerenernesereeeereeces 6. Where the incapacity of a member of the Forces is such that he is unable to earn a living wage by reason that he is unable to engage in a remunerative occupation except on- a part-time basis or intermittently, the amount specified in Column 3 of the table in this Schedule shall, in its application in relation to him, be deemed to be ...". Schedule 2 provides for special pensions. So far as it is relevant, it provides as follows:- . ' wae "The Special Rate 5. of Pension may be granted to members of the Forces who have been blinded as the result of War Service, and to members who are totally and permanently incapacitated (i.e. incapacitated for life to such an extent as to he precluded from earning other than a negligible percentage of a living wage)". The special rate of pension is provided for in Column 3 and Clause 6 of Schedule 1. The only other provision of the Schedules which is relevant is Table C of Schedule 3. It is as follows:- "PENSIONS PAYABLE IN CASES OF PARTIAL OR SPECIFIC INCAPACITY OF MEMBERS OF THE FORCES Class of Person Eligible for Pension Member or dependant .... Rate of Pension Payable Such rate, being less than the rate or the maximum rate, as the case may be, prescribed by Table B of this Schedule, as is assessed, having regard to the nature and probable duration of the incapacity, or in accordance with Schedules 4 and 5 in the ° cases to which those Schedules apply". substantially higher than that - .t. pecs tees aa eae oe These various provisions were the subject of consideration by a Full Court of this Court in Repatriation Commission v. Moss "(1982) 40 A.L.R. 553. There Fox J. said (pp. 557-558) :- c ""The fact is that the Acts in question provide for ae = 6. pensions. They are not analogous to workers' compensation, or employees' compensation legislation, where the central emphasis is on employment-related loss of earnings, temporary or permanent. The fact that provision is made for lump sum payments and limits are placed on amounts of compensation does not affect the general nature of that type of legislation. The central question there is the effect of injuries or diseases on economic capacity. In the Repatriation Acts, pension payments are, so far as relevant, related to war-caused incapacities or disabilities. The latter lead directly to prescribed entitlements. The fact that 'incapacity' relates primarily and principally to physical or mental incapacity is apparent from a number of provisions of the 1920 Act. This is not to say that in some cases, at least, such as those of partial incapacity, an assessment must be confined to a consideration of the nature or extent of physical or mental injuries. On the contrary, the very notion of incapacity involves consideration of capacity for something; some external frame of reference is necessary. Although, strictly speaking, the question does not arise in this case, my present view is that incapacity should to some extent, even if only ina general way, take account' of what the physical or mental disability or disabilities mean to the capacity of the particular individual to earn and to enjoy life. Such an approach may or may not operate in his favour. I understand froma document in the appeal book that the Commission has long followed a practice along these lines. What is of importance for present purposes is that the Act requires that a relevant physical or mental condition must exist as the basis for an assessment. This means a condition existing at " the time of assessment". In the course of their judgment Deane and Fitzgerald JJ. said _ (pp. 566-567):- "Consideration of the relevant provisions of the Act leads, in our view, to the conclusi6én that, in a general sense, the word 'incapacity', as used in the Act generally and s. 101 and Sch. 3 7. . Table C in particular, refers to a physical or mental disability or impairment rather than inability to work or earn. The consistent references to a person 'suffering' an incapacity, the references to an incapacity 'from which' a person 'has died', the consistent link, as alternatives, between 'incapacity' and 'death', the terms of the partial definition of incapacity in s. 23 as including 'incapacity that arose from disease' and the policy underlying the Schedules of paying an increased pension over that payable in respect of 'total incapacity' in the event that the incapacitated person is unable to earn other than a negligible percentage of a living -wage all point to that conclusion. That conclusion conforms with what was said by the Full Court of this court (Bowen C.dJ., Deane and Lockhart JJ.) in Repatriation Commission v. Bowman (1981) 38 A.L.R. 650. It also accords with the reasoning of Ellicott J. at first instance in Bowman's case (1981) 34 A.L.R. 556 and of Fisher J. in Collins v. Repatriation Commission (1980) 32 A.L.R. 581 at 583. The judgment in Bowman's case, supra, did not, however, purport .to establish, for the purposes of the Act, a clear dichotomy between physical or -- - mental impairment on the one hand and inability .. to work or earn on the-other. To the contrary, it was recognized in that case that inability to work or to earn will commonly be a manifestation. and a measure of incapacity. While there are parts of the Schedules (Schs. 4 and 5) in which ability to work or to earn is necessarily irrelevant, there are other parts (cll. 3 and 6 of Schs. 1 and 2) where a particular degree of inability to work and earn is aiven special significance. The latter type of provision was involved in Bowman's case and, as has been seen, the basis of the Full Court's acceptance of the relevance of decisions on workers' compensation legislation was that they furnished some guidance on the aspect of using loss of ability to earn to measure the extent of disability". - The emphasis is mine. It is the appellant's contention in the present case that he male . ae wee we rv 8. has brought himself either within the provisions of Schedule 2 or, if not, then within the provisions of Schedule 1. Clause 6. In his submission, the evidence, particularly bearing in mind that it was for the Commission to satisfy the Tribunal beyond reasonable doubt that there were insufficient grounds for granting his claim, permitted no other answer. It followed that the Tribunal in refusing to interfere with the Commission's decision had made an error of law. In order to understand the appellant's submission it is necessary to refer in some detail to the evidence which was before the Tribunal. This included the material which had been before the Commission when it made its decision in 1983 and some additional material as well, including oral evidence given by the appellant before the Tribunal. As earlier mentioned, the appellant was born on 24 April 1921. He was thus 61 years of age at the time he made his application, 62 years of age at the time of the Commission's decision, 63 years of age at the time of the Tribunal's decision "and is 65 years of age now. In August 1982 the appellant retired from a position he had held for 29 years as Chief Accountant for a national company, Bridgestone Australia Limited. Prior to his war service he had been employed as an accounting clerk. During his service his duties were those of a supply clerk. After he was discharged he was employed successively as a _ station book-keeper, aclerk and an accountant. He qualified as an Associate with the Australian Society of Accountants. It was ' apparently after he received his qualification that he obtained ross mew el ee oS - road ream sore oe cea re aa 9. the position with Bridgestone which he held for so long. In 1977 he was admitted to the Flinders Medical Centre with chest pain. He was discharged 8 days later but was still suffering from hypertension and asthma. Subsequently he had angina pectoris from time to time and transient ischaemic attacks. On 1 December 1981, Dr. Andrew Tonkin, who is a physician and Director, Cardiology, at the Flinders Medical Centre, said that the appellant had a number of medical problems, including sleep paralysis, chronic obstructive airways disease which required "quite intensive therapy", hypertension, symptomatic ventricular ectopic beats and stable angina. Dr. Tonkin said that he had been involved in the management of the appellant for the past 2 years. He said that the appellant had recently had an increase in his symptoms which he thought might relate to increasing stress in his work and that he would support, on medical grounds, his early retirement. Dr. Tonkin offered to supply any further details which might be thought to be necessary. In passing I observe 'that neither the Commission nor the Tribunal sought any further details from Dr. Tonkin, notwithstanding that he was a specialist in cardiology and had been the appellant's treating doctor for 2 years in 1981. On 17 June 1982 Dr. R.B. Hodgson, who was the Chief Medical Officer of Bridgestone, signed a certificate in relation to the appellant. Amongst other things the certificate said that the various conditions from which the appellant suffered, they being ~ oe 10. the conditions referred to by Dr. Tonkin, were chronic. Dr. Hodgson expressed the opinion that the appellant was totally and continuously incapable of working either at his own occupation or at any other occupation for which he was reasonably fitted by education, training or experience. Dr. Hodgson also expressed the opinion that the appellant would remain permanently unfit for work of any kind. He said that this would be the position from 1 July 1982, that is, from a date a fortnight after the date of the certificate, Dr. Hodgson also said that the appellant would require permanent drug therapy for the rest of his life and that all his medical problems were adversely affected by the stresses of work. He added, "His medical problems are such that early retirement is justified". The certificate was not given in order to enable the appellant to apply for a- repatriation pension but for the purposes of early retirement and the obtaining of superannuation entitlements which would not, unless he were unfit for work, have become payable until he retired at the age of 65. The appellant - was still working at the time the certificate was given and continued to- work until August 1982, notwithstanding Dr. Hodgson's view that he was in fact unfit for work, or at least would become so oni duly 1982. As one of the members of the Tribunal noted during the hearing which took place before it, the procedure which was followed was not an unusual one. At least as far back as December 1981 the appellant had been advised to - retire. He held a responsible position. No doubt he could not is) ser aye v wey mas oe ae vet sre, oe ' ll. give up work overnight and steps were taken to ensure that when he retired he would not lose superannuation benefits to which he was entitled. Nevertheless, the fact that the appellant went on working is a matter upon which senior counsel for the Commission strongly relied to support the decision made by the Commission and the Tribunal. On 23 March 1983 a Dr. Guerin made a report on the appellant's incapacity. The report was made for the Commission on one of its prescribed forms. Dr. Guerin's qualifications do not appear, but I would assume that he is not a specialist. Dr. Guerin proceeded to assess the medical incapacity of 'the — appellant and it is plain that his assesstients formed the basis for the Commission's eventual _ae€ision. Dr. Guerin attributed percentage incapacities against each of the disabilities suffered by the appellant and concluded by saying that a "composite assessment of forty (per cent) is suggested as these disabilities would preclude e/m (eligible member) from heavy work, there would be some interference with social/recreational life and some restriction on employability". It is clear enough that Dr. Guerin was approaching the problem in relation to medical incapacity in accordance with the way suggested by Fox J. in the passage from his judgment in Moss earlier quoted. He was not attempting to assess the degree of incapacity for work suffered by the appellant and was thus not directing his mind to the provisions of Clause 6 of Schedule 1 nor to those of Schedule 2. The Commission, as I have said, used Dr. Guerin's assessment as pecs ae ore a. ee 7 ZT 12. the basis for its decision, but increased the percentage to 60 per cent rather than the 40 per cent suggested by Dr. Guerin. The material so far referred to, together with a report dated 23 March 1983 from a Dr. Sheppard, was essentially the material which was before the Commission when it made its decision on 8 December 1983, It is unnecessary to refer to the detail of Dr. Sheppard's report. Before the matter went to the Tribunal, Dr. Hodgson made a further report dated 3 July 1984. He said that he had reassessed the appellant on 2 July 1984. He noted that he was on continuous drug therapy for bronchial asthma, hypertension, ectopic cardiac beats and an anxiety state. He also said that the appellant took medication on an intermittent basis for cardiac angina and occasionally might have treatment for sinusitis. 'The appellant was also troubled from time to time with sleep paralysis which Dr. Hodgson thought was probably due to stress. The detail of Dr. Hodgqson's examination was given. Dr. Hodgson's opinion was as follows:- "It 'is my opinion that Mr. Munt is totally and - permanently disabled on the following grounds. 1. Hypertension and moderately severe coronary artery disease. It was obvious from ny examination that even the minor stress of having a medical examination caused elevation of Mr. Munt's blood pressure in spite of what ~~ appears to be quite adequate anti-hypertensive therapy.' His more' frequent ectopic beats and further flattening of the T waves in his E.C.G. suggest to me that his ' . fd Pad 13. cardiac condition may have deteriorated somewhat since my previous examination. I would therefore assess his hypertension, ventricular ectopic beats and angina pectoris to compositely be causing a 75% disability. 2. Respiratory system. Again even on continuous medication he is at least 50% incapacitated according to my findings. 3. Amxiety state. This I feel has improved since he has ceased work at Bridgestone in that he seems more calm and relaxed and the number of episodes of sleep paralysis have reduced somewhat. However I feel this is directly related to the fact that he is no longer Subject to the stresses of the work place. Furthermore I feel that if he were to return to Bridgestone or any other work for which he is suited that the stress problems would worsen and in all probability quite severely adversely affect his cardio vascular and respiratory problems. Following table 9 of Guide to Assessment of Incapacity for Psychiatric Disorders, I would assess Mr. Munt at being 40% disabled due to anxiety and tension. 4. The chronic sinusitus was not a problem at this examination but I note that a previous individual assessment of 10% has been allowed for this problem. IT feel in this case that this manis indeed totally and permanently incapacitated for life to such an extent as to preclude him from earning other than a negligible percentage of a living wage". a Tt may. -be observed that the words "other than a negligible percentage of a living wage" came from Schedule 2 to the Act earlier quoted. —, As mentioned the appellant gave evidence before the Tribunal. Both parties relied on aspects of this evidence. He explained 2 yt ay pen re 14, what was meant by "sleep paralysis". He said:- "... it's very difficult to explain but in a state of unconsciousness, I'm conscious of the fact that I'm awake and yet I'm asleep obviously and I get things going through my head and I just can't move. I endeavour to move and it's just impossible to do anything at ali and eventually sometimes I have to shudder like anything, my wife is outside she will tell you and then I come out of it and it's a frightening thing but I must say that I've had very few episodes of sleep paralysis in the last six to twelve months". He was asked how often he had attacks of angina and said that he had had about 8 or 9 in the previous twelve months. Three of these had been after a meal at night when he was walking home. He mentioned a very serious attack he had had after a walk of about a mile when he was in Mildura. His wife had called an ambulance. He said he endeavoured to walk at least a couple of kilometres a day at a leisurely pace. He said that he seemed to be able to do that. He digs the garden and does not normally get chest pain when he. does sa. He_ said his chest pains were spasmodic. He has twinges of pain if he walks uphill. He agreed that he could walk a mile fairly steadily without becoming short of breath but said that he took Becotide 3_times a day and carried his Ventalin in his pocket. Immediately he 'felt any tightening of his chest he used the Ventalin. He was asked what work he had done after July 1982. He said he had remained with the company for two months to supervise the closing of the annual accounts. He said his job was full time up to 2 July 1982 and then "more or less a part-time supervisory capacity". The ' eee ee neti iidined aa y ae eat TERT TTT Ts + 15. appellant said that he was not a keen gardener and did not do a lot of it. He said he was not very practical at doing jobs around the house such as painting. He mows his lawn, but said that his lawn was small and that he cut it in stages, cutting half and then resting for a couple of hours before he cut the remainder. The Tribunal's decision, as I have mentioned, was dated 12 November 1984, The Tribunal referred to the disabilities suffered by the appellant accepted as service-related. There is no issue about this matter. Reference was then made to a letter the appellant had written on 29 December 1983 in support of his application fora review. There is no need to refer to the detail of this letter nor to further letters dated 26 January 1984 and 7 June 1984. Reference was next made to Dr. Tonkin's report of 1 December 1981. Dr. Hodgson's certificate of 17 June 1982 and Dr. Hodgson's report of 3 July 1984. The appellant's evidence before the Tribunal was mentioned. - The Tribunal then made findings which involved the acceptance of the various percentages determined by the Commission. The Tribunal continued:- ",. The Tribunal has locked carefully at all the 'Applicant's accepted disabilities and finds that . the Delegate of the Repatriation Commission. in his reasons was most generous when he disagreed with the composite assessment made by the Departmental Medical Officer who assessed him at forty per cent and increased his pension to sixty per cent. n NS . wet, awe 16. ' » The Tribunal finds that the demeanour of the. Applicant and his answers to the Tribunal's questions clearly indicated that he was appropriately assessed at the composite rate of sixty per cent and that he does not qualify 1 for any higher pension under Schedule 1 or any other provisions or schedules under the said 1 ct. . . . The Tribunal finds that although the Applicant ' ceased work on 28 February 1982, he is a qualified accountant and he would be able to perform sustained light work only. The Tribunal has taken into account the entirety 1 of the evidence and the material before it and ' after considering the medical evidence it is I satisfied beyond reasonable doubt that the ' decision of the Repatriation Commission dated 8 December 1983 is the decision that it would have made and it therefore affirms that decision". The words last used by the Tribunal come from sub-sec. _ 107VH(2) of the Act earlier referred to. As senior counsel for — = the Commission conceded, these words necessitated the Tribunal itself applying the provisions 'of sub-sec. 47(2) of the Act which oblige the Commission to grant a claim unless it is satisfied beyond reasonable doubt that there are insufficient grounds for granting it. The claim that the appellant made was plainly one which required the consideration of whether he was entitled toa special rate of pension under Schedule 2 or to a pension pursuant to Clause 6 of Schedule 1 of the Act. Both the Commission and the Tribunal rejected these claims and must therefore have been ' satisfied beyond reasonable doubt that there were insufficient . grounds for granting them. The question is whether, as a matter of law, the Tribunal was bound to take a different view. If it was, a further question arises as to whether we ourselves should substitute a finding that the applicant is entitled to a pension wt 5 eee ae cadineraiel mleneh tort ae ei espa VG seNpey cere Voysten ee san pee tp teem at ena Fi DT UN eyg tress arn sev be Woy ce secre par 17. pursuant either to Schedule 2 or Clause 6 of Schedule 1 or whether we should remit the matter for further assessment. If we decide upon the latter course, the remittal will be to the Administrative Appeals Tribunal rather than the Repatriation Review Tribunal; see s. 59 of the Repatriation Legislation Amendment Act 1984. In Bowman v. Repatriation Commission (1981) 34 A.L.R. 556 Ellicott J. referred to a number of workers' compensation cases (p. 565) including Cardiff Corporation v. Hall £19113 1 K.B. 1009. He continued (p. 566):- > "I am satisfied, however, that the basic test adopted in those cases is broadly consistent with that required to be adopted in applying paras. 3 and 6 of Sched. 1 and the first paragraph of Sched. 2 of the Repatriation Act. In my opinion, therefore, the Tribunal is bound in law in applying those provisions to take into account the effect of an applicant's physical or mental disability on his or her capacity to earn remuneration by employment or otherwise in any market "reasonably accessible to the applicant. It is not enough simply to forma view that an applicant in a physical sense can still undertake work despite war-related injuries. The incapacity so arising may well have destroyed or impaired his or her -.earning capacity in the market place. It is from such circumstances that the relevant provisions are designed to protect the applicant. Needless to say, in applying them, regard must be had to the specific texts contained in them". Later he said {pp. 566-567):- "Tt is clear, as I have already indicated that, in this case, the Tribunal has failed to consider A Tyra ors ee ra arto oa eatin aT oe 18. the applicant's earning capacity in the market. Mr. Bowman is 60. After considering his war-related disabilities the Tribunal formed the view that he can cope with suitable full-time sedentary employment in a low stress environment, but that this employment would involve his taking frequent breaks of hours or perhaps days. The Tribunal qualified its finding by the statement 'if such work could be found for him', In the absence of evidence it must at least be open to doubt whether it could be found. If not available full-time, it would be necessary to inquire whether it is available on a temporary, part-time or intermittent basis and, if so, what remuneration he is likely to earn and how this would compare with a living wage". An appeal in Bowman's case failed; see Repatriation Commission v. Bowman (1981) 38 A.L.R. 651. In the course of their reasons the members of the Court expressed themselves to be in agreement with the orders made by Ellicott J. and with the reasons which he gave for them (p. 654). The Court added (p. | 654) :- "We cannot see that Ellicott J.'s conclusion that - the workers' compensation cases which he cited might appropriately be used as a guide was wrong. It is true, as counsel for the Commission submitted, that the disability pensions dealt with in Schedules 1 and 2 are concerned with compensating for war-related injury, whereas the workers' compensation legislation is concerned to compensate for loss of earning capacity. The point is that the Schedules adopt loss of earning capacity (one way or another) as the measure of the extent of the war-related disability. It is in relation to this aspect, that is to say, using loss of earning capacity to measure the extent. of disability, that the workers' compensation cases may be regarded as furnishing some guidance. It is in this sense that we read what Ellicott J. has said". 19. _¢ In my opinion there is little indication in the Tribunal's reasons or in its conduct of the oral hearing before it that it turned its mind to the question of the appellant's entitlement to a pension either under Schedule 2 or Clause 6 of Schedule 1. The Tribunal had before it compelling evidence from Doctors Tonkin and Hodgson that the appellant was unfit for work. Dr. Hodgson had said on3 July 1984, well after the appellant had retired from his position with Bridgestone, that the appellant was totally and permanently disabled on the grounds that were mentioned and which I have earlier set out. He concluded that the appellant was "indeed totally and permanently incapacitated for life to such an extent as to preclude him from earning other than a negligible percentage of a living wage". I recognize that the latter words are picked up from the provisions of Schedule 2 and could not bind the Tribunal but the statement is a clear indication that in Dr. Hodason's view the appellant has -no working capacity left to him. Dr. Hodgson's report was consistent with what he had written in June 1982 and accords with what Dr. Tonkin said in December 1981. All the medical opinions need to be read in the light of the various conditions and disabilities which it is common ground the appellant has. For the Commission in those circumstances to discharge the onus of demonstrating beyond reasonable doubt that there were insufficient grounds for granting the claim was, to say the least, a very difficult task. Nevertheless, it was strongly submitted by senior counsel for the Commission that the pactonee -- aT : ra eee en em TITS Ty Ie a nee Seas 20. Tribunal was entitled to reach the conclusion which it did with the consequence that no error of law has been demonstrated. In counsel's submission the Tribunal was entitled to rely on the fact that the appellant worked for some weeks after Dr. Hodgson had certified him incapable of carrying eut his duties. Furthermore, Dr. Guerin was of opinion, at least inferentially, _that he was by no means totally incapacitated for work as an accountant and there was also the Tribunal's questioning of the appellant and its observation of him both of which were expressly relied upon by it in its reasons. The dilemma which the Tribunal faced was referred to by Aickin J. in Repatriation Commission v. Law (1981). 147 C.L.R. 635. His Honour said (pp. 650-651) :- : "The conflict between the material provided by the Commission and that provided by the respondent was in the end a conflict of expert medical opinion on the question of whether the cancer was caused by smoking which arose out of or was attributable to war service. The Review Tribunal appears to have preferred the opinion of the Commission's medical officers to that of Sir Edward Dunlop. In a civil court it would be necessary for the judge, or the jury if there were one, to hear oral evidence from the expert witnesses and to resolve any conflict on the balance of probabilities, taking into account the impression given by each expert witness. The_. Review Tribunal in the present case was in a very different position. In the first place it had only the written reports of the expert witnesses, Moreover it was required to find in favour of the applicant unless it was satisfied beyond reasonable doubt that there were insufficient grounds for doing so. Thus a heavy onus was placed upon the Commission to. satisfy the Tribunal beyond reasonable doubt of that negative proposition. Although the medical reports were myie ey - ees - ws" 21. in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is adifficult indeed to see how the Tribunal could properly have been 'satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong". His Honour's judgment was agreed in by Gibbs C.J. and Stephen and Mason JJ. What his Honour said was the subject of comment by Brennan J. in his dissenting judgment in Repatriation Commission v. O'Brien (1985) 155 C.L.R. 422. Brennan J. referred to what Aickin J. had said, but went on to say (pp. 440-441):- "But where the material before a decision-maker gives rise to competing hypotheses, one affirming an entitlement, the other denying that entitlement, and it is possible rationally to determine whether the affirmative hypothesis is dispelled beyond reasonable doubt, it is the function of the Board. the Commission or the A.A.T., as the case may be, to decide the question. Whether it is possible rationally to dispel an affirmative hypothesis and to destroy the probative effect of material supportive of the claim in a particular case depends on the material before the decision-maker. An opinion expressed-in or a fact suggested by the material may be contradicted by ordinary experience or be otherwise inherently incredible. Or the material supportive of the claim may be internally inconsistent. Or the material obtained from the opposed medical. experts, especially evidence given under cross-examination, may reveal that an opinion in favour of entitlement is vitiated by a mistake of fact or by inconsistency with received contemporary medical science. Or a lack -of personal credibility may deny credit to material emanating from a particular source. Or it may be a combination of factors that leads the decision-maker to reject the hypothesis of entitlement. There are various means by which a decision-maker may properly be satisfied beyond a reasonable doubt that an affirmative hypothesis is dispelled and the probative effect of supportive material is destroyed. Provided there wy - c.cewe He PO tN eee ew we Lt on ne pen re 22. are grounds on which the decision-maker can be satisfied rationally that the hypothesis of entitlement has been dispelled beyond reasonable doubt, it is his function to decide whether he is so satisfied. Where there are rational grounds available for resolving a conflict in medical opinion, the decision-maker does not perform his duty by pointing to the conflict and saying that the mere existence of the conflict binds him to find in favour of the claim". Notwithstanding that his Honour's judgment was a dissenting one, I agree with the submission made by counsel for the Commission that what his Honour said in the passage I have quoted is, with respect, correct. In the way that the majority of the Court approached the problem "in O''Brien's case there was no need for them to deal with the matter adverted to by Brennan J. What his Honour said must, however, be read carefully. His Honour was careful to make clear the circumstances in which a Tribunal might be satisfied to the requisite standard. The examples he gave were not intended to be exhaustive, but he referred to such matters as material supportive of the claim being internally inconsistent, an opinion being inherently incredible, an opinion being vitiated by mistake of fact or there being a lack of personal credibility. The question is whether there is anything of that kind here. I emphasize that the strength of the appellant's case lies in the strength of the medical opinion in his favour and also in that opinion having an apparent consistency with the variety of serious medical problems from which the appellant suffers. The 23. fact that he worked for 6 or 7 weeks after 2 duly 1982 is a factor, but the uncontradicted evidence is that he did so only for the purpose of supervising the preparation of the company's annual accounts and with the intention of giving up work at the earliest opportunity. The . fact that he was unfit for work at that time is confirmed by Dr. Hodgson's later opinion of 3 July 1984. There is, of course, Dr. Guerin's opinion. In a sense it stands in contrast with those of Dr. Tonkin and Dr. Hodgson. But when analyzed it will be seen that it is not directed to precisely the same matters as the opinions of the other doctors. Dr. Guerin was concerned with physical incapacity for the purpose of assessing the proportion of the general rate to which the appellant would have been entitled if that were the only basis upon which he should be granted a pension. Thus there is not necessarily the conflict in the medical evidence which counsel suggested. No doctor was called to give oral evidence. The Tribunal was in the same position as the Tribunal in Law's case. So far as medical evidence was concerned, it had no more than the bare bones of medical reports. To the extent that they were in conflict, it would be impossible to conclude beyond reasonable doubt that Dr. Guerin's opinion should be accepted and the others rejected. It is true that the Tribunal had the benefit of seeing the appellant and of questioning him. But its questions were not directed to his capacity to perform work: they, so it seems to me, were directed more to the question of his physical awwe gene e a pee i oo terrae ar T. ol one bere eaten ited 2, ete 24, incapacity. One does not lightly conclude that a Tribunal such as the present was not able on the evidence before it to reach a particular conclusion. But having considered this matter, I am firmly of the opinion that it was not open to it to be satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The Tribunal referred to the standard of proof at the end of its reasons, but did not do more than say that it reached the requisite degree of satisfaction after having "taken into account the entirety of the evidence and the material . before it and after considering the medical evidence". There was a no discussion of the very firm opinions expressed by the doctors and the place they should have in the Tribunal' s-aSsessment of the situation. It seems to me that there is much to be said for the view that the Tribunal did not in fact turn its mind to the question which sub-sec. 47(2) of the Act required it to address. In those circumstances I am of opinion that this appeal should be allowed and the decisions of the learned primary Judge and of the a Tribunal set aside. The next question is whether there should be an order made granting the claim which the appellant lodged in 1982 or an order remitting the matter to the Administrative Appeals Tribunal. The claim was for a special rate pension pursuant to Schedule 2 of the Act. -In order to succeed the appellant had to be totally and permanently incapacitated, that is, incapacitated for life to ence ae ey a oe man - whe PST 25. such an extent as to be precluded from earning other than a negligible percentage of a living wage. Particularly because of what Dr. Hodqson said in his report of 3 July .1984 I have contemplated the making of an order acceding to the Schedule 2 clain. But it does not seem to me that the Tribunal or the Commission has directed its attention to whether the appellant is so incapacitated as to be precluded from earning the very small sum which Schedule 2 provides for. I think one could confidently conclude that the appellant has brought himself within Clause 6 of Schedule 1 because the medical evidence suggests positively that he could not engage in a remunerative occupation except on a part-time basis or intermittently. But the appellant seeks the greater benefit of a special rate pension payable pursuant to Schedule 2. In those circumstances I think, notwithstanding the delay that will he involved, the matter must go back for further review. It should be remitted, therefore, to the Administrative Appeals Tribunal to be heard and determined again. | certify that this andthe 24 preceding pages are atrue copy of the reasons for judgment herein of The Honourable Mr Justice Sheppard. J of el: Associaia Dated 22 SULY 1786 ' Sac pee H ' IN THE. FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. 42 of 1985 ) ) GENERAL DIVISION ON APPEAL FROM HIS HONOUR MR. JUSTICE SPENDER SITTING AS A SINGLE JUDGE BETWEEN: COLIN CRANSTON MUNT Appellant REPATRIATION COMMISSION Respondent REASONS FOR JUDGMENT I have had the advantage of reading in draft the judgment delivered by Sheppard J. which sets out the nature of the issues in this appeal. I am therefore able to come straight to the central question. That question is whether Spender J. was ~ wrong in concluding that it was open to the Repatriation Review Tribunal, on the evidence, to make the finding which it made, as a finding beyond reasonable doubt. It is trite to say that there are cases where the evidence leaves no foothold for a particular finding of fact, so that if a tribunal makes that finding it errs in law. Such a case was Repatriation Commission v. Law (1981) 147 C.L.R. 635. ! ee bee ey os Le Sorte goes tee Age eae ice 2. The majority of the High Court agreed with the view of Aickin J. that "on the material before it the Review Tribunal could not properly be satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim or application" (p.652). In an often~cited passage, at p.651, his Honour pointed out that the Tribunal "had only the written reports of the expert witnesses", to whose "standing or expertise" there had been no challenge. But that was a case where the Tribunal's decision rejecting the claim was in the teeth of untested evidence of "an eminent medical authority" which "fully supported" the claim. See, at p.640, per Murphy J., who "(found) the Tribunal decision astonishing"; and see the comments of Brennan J. at p.439 of the report of the case to be cited next. In Repatriation Commission v. O'Brien (1985) 155 C.L.R. 422 the High Court returned to the subject of what is requisite to justify the Tribunal in rejecting a claim. The joint judgment of the majority (Gibbs C.J., Wilson and Dawson JJ.) did not need to deal with whether, on the evidence in that case, rejection beyond reasonable doubt could have been upheld. For their Honours considered the Tribunal had committed itself to a view which necessarily involved that there was a reasonable doubt. The claim was for a condition of hypertension, and the joint judgment at p.430 stated: "Although the A.A.T. found that the respondent's hypertension arose out of or was developed by reason of constitutional ' factors, it went on to make its eighth finding as follows: mer ' rari 3 Ar aqras a at ee a memes pepe oe - 'Any stress which may have aggravated the applicant's anxiety neurosis or aggravated or contributed to the development of his condition of hypertension did not arise out of nor was it attributable to his said war service.' In our opinion, this finding should be taken as allowing for the possibility that stress associated with the respondent's anxiety neurosis may have been a factor in the development of his hypertension. That being the case, it follows that, had the A.A.T. properly instructed itself with respect to the status of the anxiety neurosis as an accepted disability, it could not have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim." (To understand the last sentence of the passage cited, it is necessary to appreciate that their Honours had already held the Tribunal had, in the circumstances of that case, no power to disregard a previous attribution of the neurosis to-war service.) Despite the narrowness of this issue on which the majority judgment ultimately turned, it does contain a discussion of the broad question of the meaning of satisfaction beyond reasonable doubt of the insufficiency of grounds for granting a claim. That discussion was in the context of a consideration of an exposition of the law in the joint judgment of Keely and Fitzgerald JJ. in the same case in the Full Court of this Court (see (1984) 1 F.C.R. 472 at 498-9). Gibbs C.J., Wilson and Dawson JJ. accepted that exposition as correct, but what is important for present purposes is that they thought it necessary to add (at p.434): "Two matters should however be made clear... Secondly, it remains the duty of the Tribunal to decide questions of credibility even where the witnesses who are in conflict are expert witnesses, for example, where a challenge is made to the standing or expertise of the expert in question or when the basis of the expert's opinion is destroyed in cross-examination." Brennan J., with the general agreement of Murphy J., dissented on what I have described as the narrow issue, taking the view that the Tribunal had not tied its own hands as the majority thought it had. He was therefore required to consider whether the Tribunal had _ been entitled to choose between conflicting medical opinions. In answering this question affirmatively his reasoning is not at odds with the passage I have cited from the majority judgment. At p.44]1 he says: "(T)he decision-making body might decide between conflicting medical opinions provided the means for doing so are at hand." At p.440 he cites a passage from the joint judgment of Bowen C.J., Lockhart J. and himself in Law's Case, when it was in this Court: "When all that appears are contradictory medical opinions expressed in written reports by medical practitioners of good repute, in general a-finding that one of those opinions 12S untenable cannot be made unless that opinion is inherently incredible, or the ether opinion or the evidence of other witnesses exposes a manifest error in it, or its incredibility appears on examination or cross-examination of its author. Sir Edward Dunlop's opinion was not shown to be untenable: all that was shown was that a different opinion was held by other reputable medical practitioners." (Emphases added) coe oe woe oe pre worse eee picieh betcemneheaeiai? aT ores De te cpee srecs rp yet . His comments on that passage are set out in the judgment of Sheppard J. and I need not repeat the quotation. In my view, all members of the High Court made it clear that the Tribunal has the right, and the duty, to consider conflicting medical opinions; and may choose between them beyond reasonable doubt, provided it has a rational basis for doing so. Where a Tribunal of fact, which is not bound by the rules of evidence and may, always provided it accords the parties natural justice, inform itself as it chooses, has made such a decision, a court will not lightly pronounce the decision erroneous. A court whose jurisdiction is limited to hearing an appeal on a question of law- cannot find error on a mere consideration of the weight of evidence: Collins v. Minister for . Immigration and Ethnic Affairs (1981) 58 F.L.R. 407 at 410, a passage cited by Brennan J. in O'Brien's Case at p.436; and see Repatriation Act 1920, s.107VG. In my view, these principles are illustrated by the present case. It is true that the appellant was supported by Dr R.B. Hodgson, a general practitioner, the company doctor of the company which he had served as a very senior executive. But I think the Tribunal could properly have concluded that Dr Hodgson's reports were in conflict with the views, explicit or implicit, of every other doctor in the case, including the views of the specialists. Dr Hodgson referred to "moderately severe ine ~ ae eee oe Lee son np 6. coronary artery disease", and interpreted E£.C.G. tracings as in keeping with this condition. He thought "hypertension, ventricular ectopic beats and angina pectoris to compositely be causing a 75% disability". Taking this disability together with respiratory problems and an anxiety state, he pronounced the respondent totally and permanently incapacitated for any employment. But Dr Tonkin, Director of Cardiology at the Flinders Medical Centre, in his only report submitted, dated 1 December 1981, referred to the cardio-vascular condition as "hypertension, symptomatic ventricular ectopic beats and stable angina." He added: "He has recently had increase in his symptoms which I think may relate to increasing stresses in his work and I would support, on medical grounds, his early retirement." It is one thing to support early retirement to avoid the problems caused by increasing stresses in a position as controlling accountant of a large national company: it is quite another to speak of total and permanent incapacity to an extent precluding earning in any occupation, however free of stress. In fact the appellant continued in his responsible position for another nine months, till 28 August 1982. There is no reference in Dr fTonkin's brief report to an abnormal E.C.G. or to "moderately severe coronary artery disease", though no doubt "stable angina" might be taken, by a Tribunal with a medical member, to imply a condition of coronary artery disease which was stable. A tribunal so constituted, as the Review Tribunal was, males 7. must have an advantage over this Court in interpreting the significance of Dr Tonkin's use of that word "Stable", which a Court, without a medical member, can only surmise may at least suggest good control under medication. That in fact the angina and hypertension are under control, and the ectopic beats under fairly good control, is confirmed by the only other cardiologist in the case, to whose evidence I shall refer later. The appellant has never had a serious cardiovascular incident, unless the following occurrence five years before his retirement could be so described. From 21 August 1977 to 29 August 1977, he was admitted to the cardiac unit of which Dr Tonkin was the Director, with a history of 24 hours of intermittent chest pain. An E.C.G. on admission showed "non-specific T-wave changes", a finding which again the Tribunal, constituted as it was, was ideally situated to understand. No evidence was found of myocardial infarction and his cardiac enzymes remained normal. The hospital notes record that he had "a history of very mild asthma", and was started on a Becotide inhaler. In December 1968, the appellant had been admitted to hospital for a nervous problem. An £E.C.G. and X-ray had then been reported on as follows: "Electrocardiogram: The tracing shows nonspecific T wave changes. There is no evidence of left ventricular hypertrophy; in fact the amplitude is low. X-ray chest: Normal." us wm ene ep ee cope os pas -aiibcneiere un ir ae eee a Soi .2 re v pope rss ey 8. The appellant, following the making of the present claim in late 1982, was referred by the Department of Veterans Affairs to a cardiologist, Dr Sheppard, for examination on 23 March 1983. Dr Sheppard reported to the Departmental Medical Officer, Dr. Guerin. The report, which is handwritten, includes the following (I have not attempted to reproduce abbreviations): "Had angina 5-6 years (central pains with exertion). Not a bother though worse when he was working." (I interpolate here that the appellant never returned to any work after his retirement from Bridgestone Australia Limited, and thus this comment must mean that the angina was not a bother once he had ceased to undergo the increasing stresses of the very demanding position he had held at that Company). "Ventricular Ectopic Beats:- Quite a bother though under fairly good control on quinidine. ' Hypertension:~ First noted in Army - usually well controlled (Dr A. Tonkin). Rx. Aprinox aldomet, ecotrin quinidine & valium. No enlargement of heart." (I am not certain of my reading of this last medical note ~ a matter which again emphasizes the advantage enjoyed by the Tribunal). "Impression:-— He obviously has angina, hypertension and ectopic beats of moderate severity - Sufficient to prevent his being able to continue his chosen career." f The Tribunal had the benefit of a medical assessment by : os, Dr Guerin, the departmental Doctor who had referred_the appellant we eee Te Tp een nr ce ee nome ieee - x 'C to Dr Sheppard for his specialist opinion. Dr Guerin wrote, of the diagnosis of hypertension, that it had "been confirmed by cardiologist Dr Sheppard 23 March 1983", and added: "Assessment takes into account the normal E.C.G. {ie no effect on target organs) and the good control with simple medication; it is asymptomatic." He assessed it at 20%. He assessed the ventricular ectopic beats at 10%, again taking into account "the normal E.C.G.", and commenting: "Condition is asymptomatic and does not interfere with normal living. He takes regular therapy." He assessed the angina pectoris at 20% and after again referring to confirmation of the diagnosis by Dr Sheppard added: "Assessment takes into account the chest aches on exertion but normal E.C.G. He takes regular medication." Dr Guerin concluded with a composite assessment, to take account also of a condition of chronic bronchial asthma discussed later in these reasons, which he expressed in the following terms: "Composite assessment of 40 is suggested as these disabilities would preclude ex-member from heavy work, there would be some interference with social/recreational life and some restriction on employability." In the material before the Tribunal, were notes of Dr Guerin's examination of the appellant on 23 March 1983, which included the following: "On examination Dr Guerin noted = slight cardiomegaly. The heart sounds were muffled. The veteran's blood pressure was 180/110. His pulse was 78 regular - no ectopics. Vessels sclerotic. Peripheral pulses L = R." ere re perce = ee eee cng ete cers wy prot 10. The E.C.G. done the same day was reported: "Sinus rhythm, normal trace." Taber's Cyclopedic Medical Dictionary indicates that a sinus rhythm is the normal cardiac rhythm commencing at the sinoatrial node. It could be inferred that either the "non-specific T-wave changes" noted in 1977 were not regarded by the reporter as abnormal, or that the appellant's condition had improved with the removal of the considerable stress imposed by his special position of professional employment. Quite possibly, both propositions were thought true by the Tribunal. Dr Guerin records the clinical history as including: "Since retired is doing a lot of walking - Manages two kilometres per day. Uses ventolin inhaler in morning and perhaps one other time during day ... can only manage a few holes of golf." There is a comment that the inhaler causes palpitation. Of his a working career it is recorded: "Veteran had charge of division, group, company and group of companies over 29 years (viz. Bridgestone). Found this job particularly stressful over years - would have preferred to leave several times. Has -+had two nervous breakdowns 1968." Dr Guerin also noted: "Studying Taxation Act to keep mind active. Walks for 1-2 hours. Gardening, minor chores." Tat oo Mreee oe "Ww Tope wl th. Pa eS me es meer tee oe . tae a ae toe corer au pam pores oe WN Rene een 1 ate ve. semen pr er sn ot ore oe wage mans tc , any aoe ¢ ~_oct " an aan ae ray ll. The chest x-ray, also dated 23 March 1983, was reported as showing: "Normal heart. No active lung lesion detected." The x-ray could have been regarded as objectively showing there was no cardiomegaly, at the same time demonstrating that Dr Guerin, who on clinical examination thought there was "slight cardiomegaly", was certainly not inclined to close his eyes to anything favourable to the appellant. In evidence on 12 November 1984, before the Tribunal, the appellant said that he had had eight or nine attacks of angina in the previous twelve months, three of which had been after a meal at night walking home. He said he had been in Mildura a few months previously when he had had what he described as "a very severe attack ... after a walk of about a mile or something in about an hour, walked too quickly or something, and NX it persisted for a while, but I wasn't admitted to hospital, but as a consequence I went to the Doctor and he took an E.C.G. and said everything seemed to be all right." With regard to the evidence of ectopic beats and angina, it seems to me that the Tribunal could not have had any reasonable doubt that the appellant suffered from these conditions; but in interpreting that evidence it could have had regard to the fact that there were numerous notes in his medical records concerning an anxiety state and concerning pains in the chest and fears of heart problems, as far back as 1947 and 1948, r L ' A t w ~¢ wes corr teen aly 12. when it is clear there was no organic problem of that kind, although there was a complaint in 1949 of pounding of the heart, and in March 1947 a medical examination was noted as showing "slight tachycardia". In 1949 it was recorded of him: "On two occasions whilst lying in bed, he has found himself momentarily paralysed and has panicked on account of this, but' the sensation has passed off in a few moments." This is comparable with his recent evidence concerning "sleep paralysis", to which I shall return. Dr Hodgson certified, on 17 June 1982, that the appellant suffered a severe chronic condition which he diagnosed as "(1) chronic obstructive airways disease, (2) hypertension, (3) coronary artery disease, and (4) sleep paralysis", rendering the appellant "totally and continuously incapable of working", as from 1 July 1982, in every "occupation for which he is reasonably fitted through education, training and experience"; and also certified: "All his medical problems are adversely affected by the stresses of work. His medical problems are such that early retirement is justified." Yet he commenced his only detailed report, dated 3 July 1984, with the statement that he had re-assessed the appellant on 2 July 1984, and continued: "Since my last assessment in 1979 ...". It is clear, not only from this, but also from other material that was before the Tribunal, including the appellant's oral evidence, that Dr Hodgson was not concerned in the medical management of the appellant, and that he Tere - yee oes A ee mre epee nen eae "TTR ony eaieaeitetes te ieee 7 Aracse wae ry we 13. must have committed himself to the strong opinions expressed in 1982 without having conducted a full medical examination since 1979. The appellant referred in evidence to 1979 as the time of Dr Hodgson's "last examination" of him prior to 1984. In the meantime, the appellant had continued to work at the highest level, and in fact he continued to do so for approximately a further two months after the date when Dr Hodgson certified him totally unfit. I accept that a man may continue to work when unfit, and indeed may be respected for it, but the Tribunal could properly have regarded the circumstances I have outlined as grounds for preferring other views to Dr Hodgson's. That is a valid argument of fact, and granted its availability, the decision upon it was for the Tribunal alone. Whether or not the principle in Jones v. Dunkel (1959) 101 CLR 298 had any application, it is a remarkable fact that the appellant's request for review was supported by the report of a general practitioner who, on 2 July 1984, had examined him for the first time since 1979, and, to the extent that the appellant relied on it, by the brief report of 1 December 1981 of a cardiologist, who had been concerned as a consultant in his Management for two years prior to that date. No current evidence from any treating doctor was proffered by the appellant. For myself, I cannot see any reason, since the appellant had been made aware of the contrary medical opinion of Dr Guerin, Supported at least to some extent by the specialists, Drs Chui and Sheppard, why the reasoning in Jones v. Dunkel could not have ve poems ee ae ee ne ry ? * By ath TT tt or etn v4, aetteeatatne 14. been utilised by the Tribunal, provided only it did not overlook the provisions of s.24AA of the Repatriation Act. That reasoning is not an exotic flowering of judicial procedures: it is, as Windeyer J. remarked "plain commonsense" (see 101 CLR at 321). I think a Tribunal governed by s.107VG of the Repatriation Act could find assistance in it. Although in his report of 3 July 1984 Dr Hodgson says: "It was obvious from my examination that even the minor stress of having a medical examination caused elevation of Mr Munt's blood pressure in spite of what appears to be quite adequate anti-hypertensive therapy", his own notes of the examination suggest the contrary. For he notes: "Blood pressure taken when he first arrived , was 190/110. This settled to 170/90 after about 15 minutes rest." I do not think the onus of proof provisions would have prevented the Tribunal remarking that the Doctor's reasoning left out of account the possibility that the patient may have been hurrying to keep his appointment and, far from finding the appointment stressful, achieved significant reduction in pressure during it. Of course they could not have concluded that this in fact happened, but that does not prevent them rejecting beyond reasonable doubt, in the light of all of the evidence, both the correctness and the relevance of the Doctor's inference. eer ose 15. The Tribunal had the advantage of hearing and observing the appellant. The medical member of the Tribunal, Dr Hoile, asked him a comprehensive series of questions, clearly designed to ascertain the extent of the disabilities he was alleging. The appellant said that he seemed to be able to walk at least a couple of kilometres a day "at a pretty leisurely pace". He said: "I don't normally get a chest pain if I'm just digging the garden or anything. These chest pains are spasmodic." Asked whether he could walk upstairs, he replied: "Well on two occasions when I had walked up hills I've just had twinges of it", and he explained that what he meant was "a slight pain". With regard to the appellant's nervous state, he said that he did not think it had changed since 1968, which means that even the increasing stresses of his senior position up to 28 August 1982 had not seemed to him to affect 1t. He conceded that he had said, when asked about his anxiety in 1983, upon his examination by Dr Guerin: "Well I am improving, certainly far more relaxed now than when I was working", upon which he commented that this was quite true. He also said: "T have had very few episodes of sleep paralysis in the last 6 to 12 months." It was made clear that Dr Hoile found the expression "sleep paralysis" puzzling. A glance at Taber's Cyclopedic Medical Dictionary explains his reaction, since the term has no relevance to the appellant's complaints, which appeared to refer to a not especially uncommon type of bad dream, in which the subject feels himself struggling to move but unable to do so. rere om + ms Popeye seep eigen pie wi wren ee ie we ee ee, 16. The appellant was asked a number of questions about his condition of chronic bronchial asthma. Dr Hoile put to him: "Well what about the asthma then, you can walk a mile fairly steadily without getting short of breath at all too much?", to which he replied: Dr Hoile "yes, well I have the Becotide three times a day, I have it first thing in the morning, lunchtime and the evening... and I carry my Ventolin in my pocket all the time, and immediately I feel any tightening up at ail I use the Ventolin." also put to him, with reference to evidence he had given: "I notice too that you were saying that you have a constant cough?" The appellant replied: Dr Hoile to which Dr Hoile "yes. I can spit up sputum now. I have it all the time." put to him: "But you're not though?", the reply was: "I beg your pardon?" repeated: "But you're not?" The appellant replied: Dr Hoile "TJ don't want to, no. But I have." also put: "But you can also walk at a steady pace without doing too much coughing or wheezing?" The appellant replied: - me en my eyoerens ep 17. "yes, I think a little bit of a walk might, if anything, assist it." He repeated however: "But I still cough." It is obvious that the Tribunal's observations of the appellant must have been most important for their understanding of this evidence, and for any conclusions drawn from it. In respect of the chronic bronchial asthma, it may be observed that this disability was listed ahead of the cardiovascular complaints by Dr Tonkin, a cardiologist, and by Dr Hodgson, both of whom referred to it as chronic obstructive airways disease, However, the appellant did not submit any specialist opinion in respect of this complaint. The only specialist respiratory physician whose report was before the Tribunal was Dr Chui, to whom the appellant was referred by the Department. Dr Chui's report of 23 March 1983 concludes with an assessment as follows: "Diagnosis: Chronic bronchitis with severe airflow obstruction - may have asthmatic diathesis." (The word "diathesis" refers to a constitutional predisposition, not to some separate disorder.) He arranged respiratory function tests on 6 April 1983, and re-examined the appellant on 13 April 1983, when he recorded that there was no contra-indication for steroid therapy. He again examined the appellant on 11 May 1983, when he recorded that the af aol woe ree ee cor ae pes ee Ae ee tee an Re eee Pee fo ttn, apo appellant's breathing had improved while on Prednisolone therapy, but he had stopped 'Prednisolone because of a side effect of "numbness of the Lips and pins and needles of the fingers". Dr Guerin reached the following conclusion concerning the chronic bronchial asthma: . "The diagnosis matches the disability claimed (that is chronic obstructive airways disease) and has been confirmed by a= specialist respiratory physician Dr Chui, after consideration of positive histamine provocation response during airflow studies. The assessment takes into account' the necessity to use an inhaler daily and the interference with breathing on exertion - also relieved or prevented by inhaler use - although can walk at normal pace on level ground. There is indication of airways obstruction." The assessment was 20%. , Dr Hodgson's original certificate of 17 June 1982 did not elaborate on any particular problems attributable to this disability. In his report of 3 July 1984 he noted that the appellant used Becotide three times per day and Ventolin "as required". He aliso recorded: "Clinical examination of the respiratory system showed diminished air entry in all areas with scattered crepitations mainly in the basal areas. Spirometry showed a quite moderately severe obstructive defect with a vV.C. of 51% and an F.E.V. 1 of 48%. On forced expiration there was a very marked expiratory wheeze." (I understand the abbreviation V.C. to stand for Vital Capacity and F.E.V. 1 for Forced Expiratory Volume in one second - but the Court cannot take judicial notice of any significance~the figures might have.) Pr eomcpeae ss em ? Me '' fy ty iF ? t l t t 19. He concluded: "Respiratory system: Again even on continuous medication he is at least 50% incapacitated according to my findings." The Tribunal was entitled to take into account its own observation of the appellant whilst he was giving evidence before it. The comment involved in part of the questioning by Dr Hoile, which I have quoted, strongly suggests that he did not exhibit indications of respiratory difficulties to match his complaints. Furthermore, his conceded physical capacities, and the conceded effectiveness of his use of inhalers, provided material against which the Tribunal was entitled to assess the views of Dr Hodgson. Dr Guerin, with the benefit of reference to a specialist respiratory physician, had taken a very much less serious view of the consequences for the appellant of this condition. ' In the light of the answers the appellant gave in evidence before the Tribunal, it seems to me, with great respect to those who think otherwise, that it is simply not a case where the Tribunal could be said to have been without material to enable it to reach a view rejecting the opinion of Dr Hodgson. The Tribunal noted: "Dr Hodgson did not give any reasons for his assessment' of 50%." — The Tribunal made it clear that it placed reliance both on the demeanour of the appellant and on his answers to its questions. Lawyers may use the word "demeanour" in a rather narrow and technical sense, but a Tribunal such as the Repatriation Review Tribunal could, I think, be taken to use such a word as an ordinary English word. The Shorter Oxford English Dictionary shows that the word refers to "conduct, mode of proceeding... behaviour", or to "manner of comporting oneself towards others; bearing." This Court has no means of measuring the effect of the appellant's demeanour upon the Tribunal's understanding of the broad generalisation to which Dr Hodgson committed himself. I do not find it possible to say that the Tribunal could not have been properly satisfied beyond reasonable doubt that Dr Hodgson's assessment should be rejected, and that the assessment the subject of the review was the assessment to which it would itself have come (see s.107VH(2)). So far as the cardiovascular conditions were concerned, these were claimed to have been affected by the appellant's anxiety state, and the Tribunal's view may well have been influenced, in respect of this also, by his demeanour before it, and also by the conceded improvement in his nervous condition. They may have thought, as a matter of common sense, that the aggravation of a nervous condition by the very great stresses the appellant had felt in his senior position, which he had several times wished to leave at a much earlier date than the date of his actual retirement on medical grounds, did not at all indicate that they could not be satisfied to the requisite degree that pacer om ae -u- wens ence aan Natu veg oe om ' Rone ee ey wid eae " we ee are ar a Sete ere a7 oe eee — tee 21. more ordinary light work would be well within his capacity. Certainly, there is nothing in Dr -'Tonkin's report to deny that they could be so satisfied. What stood in the way was the view of Dr Hodgson that the appellant could not do any work which would earn more than a negligible percentage of a living wage. They were entitled, as they did, to note that he had assessed the conditions as compositely causing 75% disability, and they were entitled to consider his view about the appellant's earning capacity in the light of that assessment. They said of it: "The assessment of 75% ... is ... quite unrealistic." They referred, with evident approval, to the Delegate's view thats "Hypertension has shown no effect on target organs and is controlled by simple medication." In the light of Dr Tonkin's reference to "stable angina" and Dr Hodgson's concession that the anti-hypertensive therapy appeared to be "quite adequate", and in the light of the whole of the evidence, again I cannot say that the Tribunal was not perfectly entitled to reject Dr Hodgson's view. In doing so, they could properly have had regard to any view they may have formed that he had exaggerated the effects of the condition of bronchial asthma, having rashly given a very strong certificate in 1982 when he had not examined the appellant since 1979. It is not a case of simply choosing between the medical opinions of Dr Hodgson and Dr Guerin. Two cardiologists had also seen the appellant, and neither of them expressed, though directing their attention to tre prt Bee ra DRT Ir verre ete ven ' we aed " 22. the issue of employment, any view that the appellant was incapable of continuous work in the accountancy or clerical fields, provided he was not subjected to the stresses of an extremely senior position in a large company. Looking at all the evidence, the Tribunal; particularly as a Tribunal with a medical member able to understand the significance of the E.C.G., X-ray, and other technical evidence, was not without the means at hand, to use Brennan J.'s phrase, to evaluate and reject Dr Hodgson's report. By contrast, the Court, lacking both medical expertise and the opportunity to observe the appellant, should hesitate to hold that the Tribunal's Satisfaction beyond reasonable doubt was not just wrong (a question the Court has no jurisdiction to consider), but was without any possible foundation. It was not a case of such a finely balanced distinction of opinion as might deny ability to be satisfied, beyond a reasonable doubt, of the correctness of the alternative view. There was a great gulf dividing Dr Hodgson's assessment from that which the Tribunal preferred. Nor was it a case, such as Sprod v. Repatriation Commission (unreported, 13 December 1985, Davies, Lockhart and Sheppard JJ.), where a series of findings upon a mere balance of opinion was followed by an incongruous assertion of adherence to the ultimate finding beyond reasonable doubt. On the contrary, here a series of findings was reached unhesitatingly - Dr Hodgson's view was rejected as "quite r oer ste a —7 Jee. Set ee wee ee Smee nes pyr 23. unrealistic", the appellant's answers and demeanour' were described as having "clearly indicated" the opinion adopted, and the assessment in question was found "most generous". The Tribunal's final conclusion beyond reasonable doubt was the natural and expected culmination of the views it had already expressed. I respectfully agree with the learned primary Judge when he said: "Its (ie, the Tribunal's) finding that the Delegate had been "most generous when he disagreed with the composite assessment made by the Departmental Medical officer who assessed him at forty per cent and increased his pension to sixty per cent" to my mind indicates that the Tribunal was of the view that, on a 60% assessment, Mr. Munt was not deprived of any possible entitlement which was properly open to him." So understood, the finding emphasizes the Tribunal's satisfaction beyond reasonable doubt. The appellant's argument placed some reliance on Repatriation Commission v. Bowman (1981) 38 ALR 650. In my opinion this decision deals with a guite different problem. [In Bowman's Case, the Full Court affirmed the decision of Ellicott J. (Bowman v. Repatriation Commission (1981) 34 ALR 556). At p.567, Ellicott J. said of Mr Bowman: "After considering his war-related disabilities the Tribunal formed the view that he can cope with suitable full-time sedentary employment in a low stress environment, but that this employment would involve his taking frequent breaks of hours or perhaps days. The Tribunal qualified its uh tReN ae ee pn ie Sistas ietunteraaamaamemmnaraaen! 24. finding by the statement 'if such work could be found for him'. In the absence of evidence it must at least be open to doubt whether it could be found. If not available full-time, it would be necessary to inquire whether it is available on a _ temporary, part-time or intermittent basis and, if so, what remuneration he is likely to earn and how this would compare with a living wage." The Full Court (38 ALR at 654) stated in a joint judgment that the "conclusion that the Tribunal had failed to consider Mr Bowman's capacity to earn remuneration by employment by finding work for which it was said he was fit, was not really challenged before us." It was a clear case. A disability requiring the taking of "frequent breaks of hours or perhaps days" could not but drastically reduce the chances of finding employment. Indeed, as Ellicott J. noted, this was recognised by the express qualification upon the assertion of capacity: "if such work could be found for him". The present case is in sharp contrast. The only qualifications upon the capacity for work, on the view taken by the Tribunal, are that the work be light, and that it not present the kind of stress the appellant's former position involved. For a qualified accountant who has worked in a variety of clerical, accounting and administrative positions, these are not formidable barriers to employment. Nor does the case present the problem of a restricted employment market - the appellant lives in the capital city of Adelaide, where employment of the appropriate kind must be available, particularly for a man of his experience and capability. At any rate, that was a question for the Tribunal of fact, which concluded the appellant ~~ ~ myer ose Ve ta ew ee cen re qe ee ear + oo a men ae . oF oct a vows "vt 25. "does not gualify for any higher pension under Schedule 1 or any other provisions or schedules under the (Repatriation) Act." That conclusion amounts to a finding (inter alia) that he was not so incapacitated as to be "unable to earn a living wage" and was not "incapacitated... to such an extent as to be precluded from earning other than a negligible percentage of a living wage." (See Schedules 1 and 2 to the Act).- It necessarily involves a finding that he could obtain appropriate work. Indeed the Tribunal proffered reasons for so holding sub silentio - it noted "he is a qualified accountant", and that: "he would be able to perform sustained light work" - though they added "only". In O'Briens Case (supra) at pp.445-6 Brennan J. pointed out that a mere inadequacy of an administrative tribunal's statement of its reasons does not, without more, invalidate_its decision, though in a particular case, a failure by the Administrative Appeals Tribunal to fulfil its statutory duty under s.43(2) of its Act (cf. s.107VK of the Repatriation Act) to State reasons may enable an inference to be drawn that the Gecision was not made according to law. I have collected a number of authorities for the last part of this proposition in A.R.M. Constructions Pty Limited v. Deputy Federal Commissioner of Taxation (1986) 86 ATC 4213 at pp.4219-4220. But in the present case, Spender J. declined to draw any such inference; and concluded positively that the Tribunal's decision was made according to law. I see no basis for this Court to interfere with his finding on that issue. It was made consistently with WR Ie 26. the approach which should in general be taken to a failure by a tribunal to express the findings basing its ultimate conclusion: see Proestos v. Canberra Rex Hotel Pty Ltd (1985) 64 ACTR 110, and the unreported decision of this Court given in 1982 David Jones (Australia) Pty Ltd v. Arauner, cited at pp.113-4 of the former decision, which establish that the decision may be affirmed, provided there was sufficient material upon which it may have been based, paying due regard to the advantage of the tribunal in assessing the credibility of witnesses. For these reasons, I would dismiss the appeal with costs. I certify that this and the preceding twenty-five (25) Pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. i ¢.h. Ahutart —SS== _. Associate Dated: U% July 1486 gree ee soe : WS baa WIT SOS Go