CATCHWORDS VETERANS' AFFAIRS - appeal from decision of the Administrative Appeals Tribunal that the respondent was entitled to payment of a pension for a "defence-caused disease" - defence-caused aggravation of a pre-existing disease deemed to be a "defence-caused" disease - distinction between defence-caused temporary worsening of symptoms and defence-caused aggravation of underlying disease - "aggravation" - whether aggravation of underlying disease must be permanent in order to give rise to entitlement to pension. Veterans' Entitlements Act 1986 ss 5 and 70. Re Heaps and Repatriation Commission (AAT, unreported, 29 July 1987). Banovich v Repatriation Commission (1986) 69 ALR 395. Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533. THE REPATRIATION COMMISSION v DARRYN PAUL YATES No NG 527 of 1994. Lindgren J Sydney 5 May 1995 IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 527 of 1994 GENERAL DIVISION ) On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Senior Member M D Allen, Dr J D Campbell and Rear Admiral A Horton AO. BETWEEN: THE REPATRIATION COMMISSION Applicant AND: DARRYN PAUL YATES Respondent CORAM: Lindgren J PLACE: Sydney DATE: 5 May 1995 MINUTE OF ORDERS THE COURT: 1. Orders that the appeal be allowed. 2. Orders that the decision of the Administrative Appeals Tribunal given 22 July 1994 in proceedings No P93/365 be set aside. 3. Orders that the matter be remitted to the Administrative Appeals Tribunal to be heard and decided in conformity with these Reasons for Judgment. 4. Stand the matter over to a date and time to be fixed for the making of submissions and orders in relation to costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 527 of 1994 GENERAL DIVISION ) On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Senior Member M D Allen, Dr J D Campbell and Rear Admiral A Horton AO. BETWEEN: THE REPATRIATION COMMISSION Applicant AND: DARRYN PAUL YATES Respondent CORAM: Lindgren J PLACE: Sydney DATE: 5 May 1995 REASONS FOR JUDGMENT NATURE OF PROCEEDINGS: The applicant ("the Commission") appeals under s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the AAT") in its Veterans' Appeals Division given on 22 July 1994 in favour of the respondent ("Yates"). Yates is a former "member of the Forces" as that expression is defined in s 68 of the Veterans' Entitlements Act 1986 ("the Act"), by reason of his having served in the Australian Regular Army from 11 January 1988 until his discharge on medical grounds on 8 February 1993 - a period of a little over five years. On 6 October 1992, while he was still a member of the Forces, Yates lodged a claim with the Commission to have a "disability" of spondyloarthritis which he had, recognised as "defence-caused". Section 70 of the Act provides that where a member of the Forces has become incapacitated from a "defence-caused injury" or a "defence-caused disease", the Commonwealth is, subject to the Act, liable to pay pension to the member in accordance with the Act. A delegate of the Commission, on 2 February 1993, determined that Yates' spondyloarthritis was not defence-caused and the claim for pension was refused. Yates applied to the Veterans' Review Board ("the Board") for review of the decision, and on 2 June 1993 the Board decided to affirm the decision under review. On 24 August 1993 Yates applied to the AAT for a review of the Board's decision affirming the Commission's decision. The application was heard by the AAT on 17 June 1994. The AAT set aside the decision under review and remitted the matter to the Commission with the following directions: "THAT the Applicant is entitled to the payment of pension for the defence-caused disease of aggravation of spondyloarthritis as and from the 6th day of July 1992 [sic - it is common ground that the date should be 6 July 1991]; AND THAT the Respondent is to assess the rate at which pension is to be paid for incapacity occasioned by the said defence-caused disease." The Commission filed in this Court a notice of appeal on 19 August 1994. At the commencement of the hearing on 10 April 1995, it filed, with leave, an amended notice of appeal stating the following grounds of appeal: "(a)The Tribunal erred in law in holding that a disease which manifested itself during defence service and did not arise out of defence service was aggravated by defence service within the terms of s.70(5)(d) Veterans' Entitlements Act 1986. (b)The Tribunal erred in law in holding that a disease was war caused within the terms of s.70(5)(d) Veterans' Entitlements Act 1986 because the respondent suffered a "temporary aggravation" of the disease during defence service. (c)The Tribunal erred in law in holding that should a temporary aggravation of a disease cease, s.31(6)(a) Veterans' Entitlements Act 1986 entitles the Repatriation Commission to reassess the rate at which pension is being paid. (d)The Tribunal erred in law in failing to have regard to the definition of 'disease' in s.5D(1) [sic - s 5(1)] of the Veterans' Entitlement Act 1986." BACKGROUND FACTS The following summary of the facts is taken from the AAT's Reasons for Decision. Yates was aged 15 when he enlisted in the Australian Regular Army. He was posted to the Army Apprentices' School at Bonegilla, Victoria. At the end of his period of apprenticeship training, he was medically examined and graded "FE" (fit everywhere). FE is the Army's highest standard of physical fitness and indicates that Yates was fit for active service anywhere. In June 1991, Yates was detached to Queenscliff, Victoria. He began to feel pain in his left ankle. On 8 July 1991, a diagnosis of Achilles tendonitis was made. Later in July 1991, he was posted to Darwin and employed in his Military trade of carpenter. He found that the pain in his left ankle did not abate. The Military authorities sent him to an orthopaedic surgeon who diagnosed bursitis and gave him stretching exercises to do. He was required to perform his normal Army duties. As the pain continued, an Army medical officer provided him with crutches and instructed him to keep his weight off his left leg as much as possible. In October 1991, Yates was transferred to Sydney. As his condition had not improved, he again reported to Army medical authorities. Dr Latt, at the Repatriation General Hospital (Concord), prescribed "anti-inflammatories" and placed Yates on restricted duties. On 11 February 1992, he was admitted to that Hospital and a diagnosis of spondyloarthritis was made. The AAT accepted medical evidence that at that time he should have been discharged from the Army as medically unfit. Instead he was placed on restricted duties, namely no marching, drill or physical training, but he was required to complete a Field Engineers' course at the School of Military Engineering. To meet the course requirements, Yates was required to indulge in heavy physical activity, and, although not required to march, had to cover the same distances between training sites and in the same time as the other participants in the course. At the end of the Field Engineers' course, Yates was posted to 17 Construction Squadron and was subjected to a Medical Board which classified him as "BMS" (below medical standards) to be reviewed in six months. Because of his reduced standard of fitness, Yates was not employed in his trade, and was given general duties at 17 Construction Squadron. These involved kitchen and mess work and required him to be on his feet for long periods of time. As part of his medical downgrading, Yates had a restriction placed upon him of not standing longer than 15 minutes, but this was not adhered to at the unit. After a final Medical Board examination, Yates was discharged from the Army on 8 February 1993 as "medically unfit". At the time of his discharge, he was given a medical certificate classifying him as unfit for work for three months. During that period of three months he received sickness benefit from the Department of Social Security and spent his time in "enforced rest". As a result, the pain in his left ankle subsided. He was then able to obtain a clerical position with a construction company. The sedentary nature of that position further assisted in the rehabilitation of his left ankle. The AAT found that as at the time of the hearing before it (17 June 1994) Yates did not exhibit any signs or symptoms of spondyloarthritis, but that this was because he knew how to manage his condition. It found that he would get symptoms of spondyloarthritis if he undertook strenuous physical activity, such as running. It also found that occasionally he would experience stiffness in the left ankle, back or chest. MEDICAL EVIDENCE The AAT noted that no material had been placed before it to put in issue the statements by two doctors that Yates' condition of "sero-negative spondyloarthritis HLA-B27 positive", was "genetically determined". In particular, the AAT accepted medical evidence that the condition manifested itself within the age range of 15-40 years and that there was nothing untoward in its manifestation in Yates at age 20 as had occurred. The AAT's determination in Yates' favour was based upon "defence-caused aggravation". Yates' claim was, as noted earlier, made on the Commission on 6 October 1992. That was when he was serving with 17 Construction Squadron following completion of the Field Engineers' course. Paragraphs 21-27 of the AAT's Reasons for Decision summarised the medical evidence and gave the AAT's appreciation of it: "21.Dr Sambrook also stated that there had been a temporary aggravation of the Applicant's condition whilst serving in Darwin and at the School of Military Engineering and at 17 Construction Squadron. The treatment for actively inflamed joints is rest and inactivity and the prolonged activity undergone by the Applicant would have resulted in a temporary aggravation. Dr Sambrook did not consider that there had been any permanent aggravation but conceded that as at present he could not say whether there had been a long term aggravation or not. 22.The Tribunal understands Dr Sambrook's evidence to mean that whereas he considers there has not been any permanent aggravation of the Applicant's condition, especially as regards his left ankle, as a result of his military duties that opinion is based on the history taken from the Applicant and his examination of him. Dr Sambrook, however, concedes that it is not possible to state unequivocally that later events and investigations might not reveal a permanent aggravation. All he can opine to is the present state of the Applicant's disease. 23.Dr Bornstein, Orthopaedic Surgeon, in his report of 28 April 1994 stated inter alia: 'It is well recognised that any joint which is inflamed should be treated by rest either local or general the implication being that activity will damage the joints and inactivity will allow them to settle down.' In his earlier report of 8 November 1993 Dr Bornstein referred to a limitation of potential damage to the joints due to forced physical activity on top of arthritic pain. 24.Dr Taylor, in evidence, whilst conceding that his knowledge of the Applicant's disease was not as great as Dr Sambrook's (whose speciality is that of rheumatology), was able to say within his speciality, namely orthopaedics, that the physical activity engaged in by the Applicant once the condition had been diagnosed had made the symptoms more severe than they otherwise would have been. 25.If, as seems indicated in his reports, Dr Taylor is of the opinion that the Applicant's military duties made manifest the symptoms of an asymptomatic condition, we reject that opinion and prefer the opinion of Dr Sambrook (to whom Dr Taylor referred) that the Applicant's manifestation of the disease occurred at a typical age and that conditions of service did not contribute. That the condition was not made manifest by defence service is also the opinion of Dr Bornstein. 26.The Tribunal finds that the opinions of Dr Bornstein as to aggravation can be reconciled with those of Dr Sambrook. Both specialists agree that the correct treatment for an inflamed joint is rest. That the Applicant's symptoms were made worse than they otherwise would have been is clear from both doctors' opinions and is also supported by Dr Taylor. However, on examination Dr Sambrook found that following rest and recuperation after discharge from the Army, the Applicant's condition is quiescent and there are no signs of any aggravation in the sense of the condition now being worse than it otherwise would have been. Likewise, there is nothing in the reports of Drs Bornstein and Taylor to evidence any current aggravation. 27.The Tribunal therefore finds that the Applicant did experience a temporary aggravation of his disease in the period July 1991 up until May 1993. It is questionable, however, as to what compensation is payable to the Applicant regarding that temporary aggravation." (emphasis supplied) RELEVANT PROVISIONS OF THE ACT Sub-section 70 (1) and para 70 (5) (d) of the Act provide relevantly as follows: "70(1)Where: (a) ................................; or (b) a member of the Forces ... has become incapacitated from a defence-caused injury or a defence-caused disease; the Commonwealth is, subject to this Act, liable to pay: (c) ..................................; (d) in the case of the incapacity of the member -- pension to the member; in accordance with this Act. 70(5)For the purposes of this Act, ... an injury suffered by [a member of the Forces] shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if: (a) ..................................; (b) ..................................; (c) ..................................; (d) the injury or disease from which the member ... has become incapacitated: (i) ..........................; (ii)was suffered or contracted before the commencement of the period, or the last period, of defence service ..., but not during such a period of service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service ... rendered by the member, being service rendered after the member suffered that injury or contracted that disease; but not otherwise." (emphasis supplied) The expressions "disease" and "injury" are defined in s 5 of the Act as follows: "'disease' includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development, and the recurrence of such an ailment, disorder, defect or morbid condition, but does not include the aggravation of such an ailment, disorder, defect or morbid condition; 'injury' means any physical or mental injury, and includes the recurrence of any physical or mental injury, but does not include a disease or the aggravation of a physical or mental injury;" (emphasis supplied) REASONING OF THE AAT In para 27 of its Reasons for Decision quoted earlier, the AAT gave, as its ultimate finding, that Yates had experienced a "temporary aggravation of his disease in the period July 1991 until May 1993" It was led to that finding by its finding in para 26 that Yates' symptoms had temporarily been made worse by activity in which he had been required to engage in the course of his defence service. In terms, the reference to "aggravation" of "disease" conformed to para 70 (5) (d) of the Act. But that is not the end of the matter. The commencing time of July 1991 was, no doubt, selected as indicating the time when in early July, Yates began to feel pain in his left ankle and a diagnosis of Achilles tendonitis was made, or when, later in July, he was posted to Darwin and began work as a carpenter and found that the pain in his left ankle did not abate. The end time of May 1993 was no doubt selected as the time when the period of three months following Yates' discharge form the Army on 8 February 1993 expired, that being a period in respect of which the medical certificate classified him as unfit for work. Thus, the period of aggravation of the disease was the period associated with the appearance or worsening of symptoms of the disease. Yates' claim upon the Commission was made on 6 October 1992, that is to say, during the period referred to. The AAT referred at length to an unreported decision of the AAT dated 29 July 1987 in Re Heaps and Repatriation Commission, decision No 3664 in matter N 86/745. Because of its importance to an understanding of the AAT's reasoning and the Commission's submissions on the appeal, I set out the passage referred to by the AAT and the three sentences immediately preceding it, as follows: "38. It is clear that the applicant has always had flat feet and continues to have them. He told us that before the war he wore specially fitted shoes and continues to wear fractional fittings. We accept his evidence that he may have suffered some discomfort from the use of army boots while suffering from such a condition. However, the evidence leaves us in no doubt that any aggravation that he may have suffered was temporary in nature. After the war he continued to play cricket (principally as a bowler) for some ten years in ordinary unadapted cricket boots. This, more than anything, supports the inference we draw that any pain or discomfort during service would have been of a temporary nature, concluding after army boots were discarded and not constituting aggravation within the meaning section 9. Whereas workers' compensation may be paid for periodic and intermittent periods of incapacity caused by aggravation, the nature of a veterans' disability pension, in our view, precludes the recognition of occasional aggravation. There must be a worsening of a marked and indefinite duration which is not merely a temporary phenomenon. A disability pension is designed, in our view, as compensation for permanent impairment. Its non taxable and non means tested nature illustrates that, unlike workers compensation, it is not intended to serve as a supplement to occasional economic disabilities. Whilst the rate of a disability pension may vary (usually upwards) from time to time, it must be based on a settled on-going condition. The condition may be more troublesome at some times than others. By and large, however, it must be a more or less permanent feature of the pensioner's health." In the present case the AAT distinguished Heaps' case on the basis that in the present case, but not in Heaps' case, the aggravation was subsisting at the time when the claim was lodged. The AAT said that if the AAT as constituted in Heaps' case had meant to say that although a condition might be war-caused or defence-caused, it was non-compensable because it was not permanent, the AAT as presently constituted disagreed. In this respect, the AAT illustrated by reference to malaria as follows: "There are some diseases, for example malaria, which produce incapacity but where infection eventually ceases. It is not to be suggested that whilst incapacity exists it is not to be compensated as the infectious state is transitory and not permanent." (para 29) Further, the AAT observed that the Act distinguished between a determination that a condition was due to service and the granting of a pension. In particular, it referred to sub-s 21A (3) of the Act (made applicable to defence-caused injuries or diseases by s 73), which provides that the Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and that where it does so, it must not assess a rate of pension but must refuse to grant a pension on the ground that the extent of the incapacity is insufficient to justify such a grant. The AAT expressed the view that should a temporary aggravation of a condition cease, the Commission is entitled of its own volition under para 31 (6) (a) of the Act to reassess the rate at which pension is being paid. Finally, after referring to the decision of a Full Court of this Court in Banovich v Repatriation Commission (1986) 69 ALR 395, where the Court said (at 404) that the task of the AAT in reviewing a decision relating to an application for a pension is "to make the decision which the primary decision-maker ought to have made, upon the basis of the evidence before the tribunal", the AAT concluded as follows: "33. At the time the Delegate of the Respondent made his original decision, the Applicant was entitled to pension for incapacity occasioned by the defence-caused disease of aggravation of spondyloarthritis. The matter will, therefore, be remitted to the Respondent, the Repatriation Commission, for it to assess the rate at which pension is to be paid. It seems clear, however, that for the three months during which the Applicant was not employed, having been certified as unfit to work by the Army Medical Board, he is entitled to the Special Rate pursuant to S25 of the VEA [a reference to the Act]." PARTIES' SUBMISSIONS The Commission points out that the "aggravation provision" found in para 70 (5) (d) deals with aggravation of an "injury" or "disease", and submits that this is to be distinguished from a temporary worsening of symptoms. The Commission relies on the statement in Heaps' case that "occasional aggravation" is not enough and that there "must be a worsening of a marked and indefinite duration which is not merely a temporary phenomenon". The Commission submits that the ultimate issue is whether Yates' situation falls within the terms of the Act (citing Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 ("Asioty") at 539 (Toohey J, with whom Mason CJ and Brennan, Dawson and McHugh JJ agreed). Finally, the Commission submits that the AAT's reference to para 31 (6) (a) is beside the point because in the present case there was no relevant "matter that was not before the Commission, the Board or the Administrative Appeals Tribunal" as is required before the power of cancellation, suspension or decrease given to the Commission by that paragraph is enlivened. For his part, Yates relies on the AAT's finding in his favour that he "did experience a temporary aggravation of his disease" and the AAT's reasoning which led it to that conclusion. He submits that the approach urged by the Commission does not recognise that the primary concern of s 70 is incapacity and submits that there is ample power in the Commission to review payment of pension where a disease or injury ceases to cause incapacity. REASONING ON THE APPEAL It is necessary to attend closely to certain distinctions. The notion of "aggravation" is expressly excluded from the definitions of "disease" and "injury" in s 5 of the Act, and is dealt with separately in s 70 as something which may affect a disease or injury. There is also a distinction, recognised in s 70, between incapacity on the one hand and an injury or disease on the other hand. Sub-section 70 (1) provides that two situations there described render the Commonwealth liable to pay a pension. These are (a) defence-caused death, and (b) incapacity from defence-caused injury or defence-caused disease. Sub-section 70 (2) also makes the Commonwealth liable to pay a pension but in circumstances not presently relevant, and sub-s 70 (3) elaborates on that provision. Sub-sections 70 (4) and (5) are "deeming provisions". Relevantly, sub-s 70 (5) provides that a disease contracted by a member of the Forces shall be taken to be a "defence-caused disease" if the circumstances described in any one of paragraphs (a) to (d) of the sub-section exist. Accordingly, sub-s 70 (5) is concerned to define the relation between disease and service which is to satisfy the causative element of the expression "defence-caused". For example, in para (a) that link is one indicated by the words "arose out of or was attributable to". Paragraph (b) is a "journeying provision". I need not stay to discuss para (c). Paragraph (d) deals with situations in which an injury or disease, although not arising out of or attributable to service, was contributed to or aggravated by service. The plain meaning of para (d) is that the injury or disease itself must be contributed to or aggravated by service. Incapacity, although made an essential element of the Commonwealth's liability by sub-s 70 (1), is not itself the particular concern of sub-s 70 (5). A defence-caused aggravation of a disease may or may not cause incapacity. Incapacity is related to "symptoms". There cannot be incapacity without symptoms but there can be symptoms without incapacity. Similarly, symptoms are related to, but not synonymous with, relevantly, disease. A disease may be, from time to time, symptom free. Likewise there can be symptoms of a disease, and a worsening of such symptoms, whether or not there has been an aggravation of the underlying disease. Symptoms worsened by service activity may or may not, depending on the medical evidence, be evidence of a defence-caused aggravation of the underlying injury or disease. The following passage from the judgment of Toohey J (with whom Mason CJ and Brennan, Dawson and McHugh JJ agreed) in Asioty, supra, is pertinent: "While it is apparent that an aggravation of the appellant's underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance." (at 540 - emphasis supplied) Asioty was a case under the Workers' Compensation Ordinance 1951 (ACT), sub-s 6 (1) of which, unlike s 5 of the Act, defined "disease" to include "the aggravation, acceleration or recurrence of a pre-existing disease". The importance for present purposes of the passage quoted above is in its recognition of the distinction between symptoms and the aggravation of a pre-existing disease, and in the references to the disease of dermatitis as "underlying", to "more permanent aggravation" and to "enhanced susceptibility". The passage quoted earlier from Heaps' case is generally similar. Those passages recognise that an occurrence or worsening from time to time of symptoms caused by work or service may not compel an inference that there has been an aggravation, caused by work or service, of a pre-existing disease. In the present case the AAT made the critical finding in para 27 (quoted earlier) that Yates "did experience a temporary aggravation of his disease in the period July 1991 up until May 1993". Yet the use of the word "experience" and the two paragraphs which precede para 27 strongly suggest that the AAT equated a temporary worsening of symptoms with a temporary aggravation of Yates' underlying disease of spondyloarthritis. I would not be prepared to hold that only a literally "permanent" aggravation of an injury or disease falls within para 70 (5) (d). Such a proposition would have the odd result that an aggravation, once accepted as being permanent, would be shown not to have been within para 70 (5) (d) at all, if it subsequently transpired that the injury or disease, or at least the defence-caused aggravation of it, ceased to exist. Indeed, the reference to "recurrence" in the definition of "disease" in sub-s 5 (1) of the Act noted earlier, at least suggests acceptance by the legislature of the fact that an ailment, disorder, defect or morbid condition may be a disease although not of a permanent nature. I do not think that the AAT in Heaps' case intended to suggest, in absolute terms, that an aggravation must be "permanent" if the injury or disease aggravated is to be a potential source of pension entitlement. Rather, I think that it was seeking to emphasise the Act's insistence that an aggravation be of an injury or disease and that this is not necessarily indicated by a temporary worsening of symptoms with consequential temporary incapacity. Like the AAT in Heaps' case, I would expect, in the absence of medical evidence to the contrary, that an aggravation of an underlying disease would have a duration at least longer than the period of worsening of symptoms caused by service, although it may not necessarily be as long as the duration of the disease itself. Like the AAT in the present case, I think that if the AAT in Heaps' case meant to say that an aggravation of an injury or disease, although war-caused or defence-caused, is not within the Act because it is not literally "permanent", it was in error to that extent. The question whether, as at 6 October 1992 (the date of his original claim upon the Commission) Yates' pre-existing disease of spondyloarthritis was aggravated by his defence service is the question which fell for determination by the original decision-maker, the Board and the AAT. Unlike the AAT, I do not think that the present case is relevantly distinguishable from Heaps' case on the basis that in this case, but not in Heaps' case, at the time of the making of the claim "the aggravation was subsisting". The fact that a disease subsequently becomes asymptomatic, that is to say, the fact that it transpires that symptoms earlier present are shown by evidence of later events to have been but temporary, is something conceptually distinct from the nature of aggravation of a disease, although expert evidence may establish a relationship between the two in respect of a particular disease or in the factual context of a particular case. In my view the AAT was distracted from addressing the question whether there had been aggravation of Yates' spondyloarthritis as distinct from a temporary worsening of symptoms. It accepted (correctly in my view) that an aggravation of a disease need not be literally "permanent". It accepted (as it was entitled to do) that Yates' defence service had temporarily worsened the disease's symptoms and associated discomfort. Its error was, without more, to link the two to reach the conclusion that the temporary worsening of symptoms was equivalent to a temporary aggravation of the underlying disease. The AAT's malaria example illustrates its misconception. The AAT should have posed the question in a form such as this: if Yates had had pre-existing malaria at the time when he became a member of the Forces, and had suffered a temporary flare-up caused by defence service, would this necessitate a conclusion that the underlying disease of malaria had been aggravated by the defence service? Paragraph 33 of the AAT's reasons for decision is, in any event, clearly erroneous in that it holds that Yates was entitled to pension for incapacity occasioned by "the defence-caused disease of aggravation of spondyloarthritis". As noted earlier, aggravation is expressly excluded from the definition of "disease" in s 5 and is dealt with separately in s 70. CONCLUSION In my opinion, for the foregoing reasons, the appeal should be allowed, the decision of the AAT of 22 July 1994 should be set aside and the matter should be remitted to the AAT to be heard and decided again by it in conformity with the foregoing reasons, without the hearing of further evidence. The proceedings will be listed at a time convenient to the parties for the making of an order as to the costs of the appeal, at which time the parties may make any submissions in relation to such costs. I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren. Associate: Dated: 5 May 1995 Heard: 16 April 1995 Place: Sydney Decision: 5 May 1995 Appearances: Miss R M Henderson of counsel instructed by Ms J Hall of The Australian Government Solicitor, appeared for the applicant. Mr A T McInnes QC with Mr C Vindin of counsel instructed by Mr M Roberts of Vardanega Roberts, solicitors, appeared for the respondent.