CARMEL ELIZABETH McDONALD v DIRECTOR-GENERAL OF SOCIAL SECURITY

Federal Court of Australia|1984-03-27|Before: Jenkinson JJ, Woodward J

CATCHWORDS SOCIAL SECURITY - invalid pension - meaning of- "permanently incapacitated for work" - likelihood of persistence in the

ADMINISTRATIVE LAW - whether principles concerning onus of proof apply to hearings by administrative tribunals - importance of

Social Security Act 1947 ss.14, 23, 24, 46(1) and 108.

Administrative Appeals Tribunal Act ss.33(1)(c), 43 and 44.

CARMEL ELIZABETH McDONALD v DIRECTOR-GENERAL OF SOCIAL SECURITY

Woodward, Northrop and Jenkinson JJ. Melbourne 27 March 1984

CARMEL ELIZABETH McDONALD Applicant and DIRECTOR-GENERAL OF SOCIAL SECURITY Respondent

the decision of the Administrative Appeals Tribunal be set aside;

the matter be remitted to the Administrative Appeals Tribunal to be reheard, with or without further evidence, and decided in the light of this Court's reasons for judgment, and

) ) VICTORIA DISTRICT REGISTRY ) No. VG 196 of 1982 ) )

CARMEL ELIZABETH McDONALD Applicant and DIRECTOR-GENERAL OF SOCIAL SECURITY Respondent

This is an appeal from a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the Director-General of Social Security to cancel an invalid pension which had previously been awarded to the applicant.

The appeal, provided for by s.44 of the Administrative Appeals Tribunal Act 1975, ('the AAT Act') is lamited to questions of law. The two short questions which emerged in the course of argument, and which are adequately covered by an amended notice of

(a) does either party in a case such as this before the Tribunal bear any onus of proof, and if so what is the extent of that onus?

(b) what is the meaning of the word "permanent" in the

The facts of the case, so far as they are relevant to

The applicant was born in 1948 in Malta. She came to

Australia as a child. She has been married twice and has four

She applied for and was granted an invalid pension in 1979 because she was suffering from Crohn's disease, an inflammatory disorder of the bowels. The report of a Commonwealth Medical Officer {('CMO') at that time certified that she was "permanently incapacitated for work to the extent of 85% or more"

(a figure stipulated by the Social Security Act 1947 as a

However the certificate of the CMO went on to say that the applicant's position should be reviewed in one year's time.

Such a review was duly carried out by the same CMO in May 1980.

He certified that, although her condition had improved in the

previous twelve months, she was still permanently incapacitated for work to the extent of 85% or more. This time he recommended a

This report was referred to a delegate of the Director

of Health who gave the formal opinion that the applicant was not permanently incapacitated to the extent of 85%. Since he did not see the applicant himself this opinicn must have been based on the CMO's report together with the delegate's knowledge of the

A somewhat misleading letter was then sent to the applicant telling her, "As a result of your recent medical examination, it has been certified that you are regarded as not permanently incapacitated for work and therefore it will be necessary to cancel your Invalid Pension". Three months later a further letter was sent which contained the apparently quite untruthful statement (which counsel for the respondent could not explain), "Your pension was cancelled due to the Commonwealth Medical Officer deciding that you were no longer medically entitled". This letter contained a form, which the applicant could use if she wished, appealing to the Social Security Appeals Tribunal. She exercised that right and her appeal was considered and recommended for dismissal by that Tribunal in March 1981. The part played by the Social Security Appeals Tribunal is not relevant to these proceedings. The applicant then exercised her further

right of appeal to the Administrative Appeals Tribunal ['the AaAT'].

The AAT heard evidence in August 1982 and gave its considered reasons for rejecting the applicant's appeal in

Medical evidence put before the AAT was somewhat conflicting. It referred to the applicant's domestic problems, and what were variously described as 'personality' and

'psychological' problems, as well as to Crohn's disease. The case

for the applicant was that it was a combination of these factors,

a major part of which amounted to physical or psychological

It is clear that there was evidence before the AAT on which it could properly find, as it did, that the applicant was not 85% incapacitated, provided that it did not misdirect itself

on questions of law in the process of reaching that decision.

As I have said, only two matters are alleged, on behalf of the applicant, as amounting to misdirections in law. The first relates to onus of proof. It must be said at the outset that no such question was raised by the original notice of appeal, and 1t was conceded by counsel for the applicant that he conducted her case before the AAT on the assumption that such onus as existed was on his client - to establish her entitlement to a pension.

Further, I take the view that the AAT's reasons for decision did

not depend on any onus of proof, and indeed they disclosed a clear view that the evidence showed that the applicant was not

Any discussion of the subject thus becomes rather academic, but since questions arose in the course of argument which were then debated, and the applicant was permitted to amend the notice of appeal to raise the question, I think it is

The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of 'law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called 'legal' and 'evidential' aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a

The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such

manner as it thinks appropriate" (AAT Act s.33(1)(c)).

Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to

onus of proof developed by the courts. However these may be of

assistance in some cases where the legislation is silent.

Whether the principles adopted by such a tribunal, arising from these various considerations, are appropriately dealt with under the heading 'onus of proof', becomes a matter of choosing labels. It would probably be more convenient to avoid

using that expression 1n cases such as the present.

There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s.43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before

the administrator, Drake v Minister for Immigration and Ethnic

Affairs 1979 24 ALR 577 at 589) make its own decision in place of the administrator's. The AAT itself, in a series of cases beginning with re Ladybird Children's Wear Pty. Ltd., 1 ALD 1, has taken the view that there is no presumption that the

administrator's decision is correct. This is clearly the right

It is possible to imagine a case where the act which the administrator is applying places a requirement or onus on one or other of the parties to an issue to establish a particular state of facts on which the administrator's decision would be based. If that were so, the same requirement or onus would apply before the AAT. But that is not this case. Here s.24 of the Social Security Act 1947 provides simply that "a person above the age of sixteen years who ... is permanently incapacitated for work .... shall be qualified to receive an invalid pension". Obviously someone must set in motion the process which establishes the entitlement, and that will normally be done by or on behalf of the person concerned, but the Act does not create a legal onus to prove all relevant aspects of a claim of permanent incapacity such, for example, as the state of the labour market for disabled persons. Certainly if no material is available to the decision-maker, or if available material leaves the decision-maker quite uncertain whether the person is permanently incapacitated, the claim must fail. But I think it would be artificial to describe this

I say this in spite of the apparently contrary view taken by Ormerod J. (as he then was) in broadly comparable

circumstances in Dickinson v Minister for Pensions 1953 1 QB 228

"It is, I think, axiomatic in the administration of our law that, if a person thinks that he has a

Ministry, the duty is on him to establish that claim. The mere fact that an Act of Parliament does not state that that duty is on him, if it establishes a right, must, I think, automatically

establish the duty on him to prove what he thinks is his right before he can succeed in his claim."

There is however one important distinction between the case his Honour had before him and the present case. There the Royal Warrant giving entitlement to pensions made use of the expression "onus ... to prove" in certain cases, and this led his

Honour to imply the concept in the case before him.

invalid pension has been granted, there is an evidential onus on

the Director-General to satisfy himself, or on appeal the AAT, of changed circumstances before cancelling the pension. This was the

main issue argued before us under the first question of law.

The provisions of the Social Security Act 1947 under

which the Director-General could have reviewed the applicant's pension in the present case are ss.14 and 46(1). Section 14

"Whenever it appears to the Director-General that . sufficient reason exists for reviewing a determination, direction, decision or approval of an officer under this Act (including a determination, direction, decision or approval of the Director-General), the Director-General may review the determination, direction, Gecision or approval and may affirm, vary or annul it."

Section 46(1) reads, " Lf, (a) having regard to the income of a pensioner;

(b) by reason of the failure of a pensioner to comply with section 44 or 45; or

the Director-General considers that the pension which is being paid to a pensioner should be

cancelled or suspended ..... the Director-General may cancel or suspend the pension co eeee accordingly."

Whichever provision the Director-General chooses to act under, (and in this case, although it is not entirely clear, he seems to have purported to act under s.46(1)), if he is of the opinion that a person is not, or is no longer, permanently incapacitated, he has both a right and a duty to terminate that person's pension. In doing so he must act in good faith on the

information available to him, but no question of onus arises.

In my view, the answer is the same when the AAT seeks to

put itself in the position of the Director-General. It must act

on the material which 1s before it but, as I have already pointed

out, it is not bound by rules of evidence and may inform itself on

any matter in such manner as it thinks appropriate.

knowledge of a party to an issue, and a failure by that party to

produce evidence as to those facts may lead to an unfavourable

inference being drawn - but it is not helpful to categorize this i

common sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of

proof in proceedings before the AAT unless the relevant

legislation provides for it, and in the present case the Social

If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work. For a comparable analysis as to the onus of proof (properly so-called)

before a judicial tribunal see Phillips v The Commonwealth (1964)

The present case falls within the former category ~ there was some evidence of improvement in the applicant's medical condition - and the Director-General purported to act under s.-46(1) of the Act. Therefore a state of indecision by the AAT (if it had existed) should have been resolved in the applicant's favour. But, as I have said, I would prefer not to refer to the concept of onus of proof in arriving at this result. It is rather

a question of a proper interpretation of the Social Security Act

And in any case the AAT experienced no indecision.

Accordingly it cannot be said that the AAT was wrong in law in failing to discern an onus of proof on the Director-General

On the second question, as to whether the AAT correctly

instructed itself as to the meaning of "permanent" incapacity, the

"We have taken into account the interpretation given to that phrase in Re Panke and Director-General of Social Security (i981) 4 ALD I79 at' p.192, namely that "permanent incapacity must be taken to refer to an incapacity which is likely to last indefinitely as opposed to one which is likely to last only for a time". To this we would add that compliance with the statutory requirement of permanency demands, in our opinion, that the decision-maker should be able to form, on the evidence, a settled expectation of the likelihood of such indefinite continuance of the incapacity. We think that it would be quite wrong to conclude that the applicant's incapacity is permanent in this sense. There was evidence before us of deficiencies in her management of her medication, of the possibility of the medication itself being improved, and of the possibility of maturation of personality. She is, as we have

said, only 32, and it would be in accordance neither with the letter nor the spirit of the legislation to regard the applicant as qualifying for invalid pension on the basis of the permanency of her incapacity."

In order to test the accuracy of this approach to the meaning of "permanent" incapacity it is necessary to look first at the scheme of the Social Security Act 1947. The Act provides in s.108 that a person "is qualified to receive a sickness benefit in respect of a period .... if, and only if, ..-.. the person satisfies the Director-General that, throughout the relevant period, he was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature) and that he

has thereby suffered a loss of salary, wages or other income".

I note in passing that this provides an example of a legal requirement, which some might cali an onus of proof, being cast by statute on the person concerned to satisfy the

Director-General ~- and thus, on review, the AAT - of certain

This provision has to be compared and contrasted with s.24 of the Act, referred to earlier, which entitles a person "permanently incapacitated for work" to an invalid pension. The Act obviously intends that a line be drawn between "temporary" and

"permanent" incapacity and that all relevant forms of incapacity

must fall on one side or the other of that line. Since the

incapacity referred to is not mere physical incapacity, but incapacity for work, factors such as physical and mental health, skills, training, qualifications and the state of the labour market will all be relevant in determining both the degree of incapacity and its likely duration. The work referred to must be work generally and not restricted to the person's normal occupation. I say this, first, because the provisions can apply to a person over the age of 16 who has never worked at all and, secondly, because common sense dictates that a person who can earn a legally prescribed wage in an occupation which he is capable of performing, should not be entitled to a pension simply because he

is incapacitated from performing his normal occupation.

So far as degree of incapacity is concerned, the Act provides in s.23 that "a person shall be deemed to be permanently incapacitated for work 1f the degree of his permanent incapacity for work is not less than 85%". I assume without deciding (because the matter was not argued before us) that this means that a person who is able to work part-time or irregularly and so earn more than 15% of a prescribed wage is not entitled to an invalid pension.

The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at

the time the decision is made. It is not inconsistent with the

notion of permanent incapacity that the pensioner's position

should be reviewed from time to time. Unexpected improvement in

the person's condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be

In my view the true test of a permanent, as distinct from temporary, incapacity is whether in the light of the

available evidence, it is more likely than not that the incapacity

will persist in the foreseeable future. (Cf. Re Tiknaz and

Director-General of Social Services 1981 4 ALN N44.)

This test involves two questions. The first is whether it is more likely than not that the disability will terminate (or fall below 85% in the sense referred to above) at some time in the future. Even if the answer to this question is 'Yes', I think it would be inaccurate in the context of employment to describe as "temporary" a condition which was likely to last for a number of years. Hence the two elements of degree of likelihood of improvement and time-span for that improvement, should be weighed together in determining what is permanent and what is temporary. The greater the likelihood of substantial improvement and the earlier that it is likely to occur, the more accurate will be a "temporary" label. The longer the period and the less probable the improvement, the more appropriate will be a finding of

I do not regard what I have just said as conflicting in

any way with the passage from Re Panke and Director-General of

Social Security (above), quoted by the AAT. The choice is indeed

between incapacities "likely to last indefinitely" - meaning for a

long and indeterminate time but not necessarily forever - and

incapacities "likely to last only for a time" ~- meaning a time

Which is predictable and capable of being quantified, though not

The gloss added to this decision by the AAT does however

"To this we would add that compliance with the statutory requirement of permanency demands, in our opinion, that the decision-maker should be able to form, on the evidence, a settled expectation of the likelihood of such indefinite continuance of the incapacity. We think that it would be quite wrong to conclude that the applicant's incapacity is permanent in this sense. There was evidence before us of deficiencies in her management of her medication, of the possibility of the medication itself being improved, and of the possibility of maturation of personality. She is, as we have said, only 32, and it would be in accordance neither with the letter nor the spirit of the legislation to regard the applicant as qualifying for invalid pension on the basis of the permanency of her incapacity."

In the first sentence of this passage the AAT seems to be saying that the decision-maker must have some strong degree of satisfaction ("settled expectation") of the likelihood of indefinite continuance of incapacity. Anything less would render

the incapacity temporary only. I cannot agree with this view.

There will be many cases in the difficult borderline region

between temporary and permanent incapacity where the Director-General or the AAT will have to decide which is the more appropriate description. It is not necessary to have a "settled

expectation" of permanency before so finding; a belief - even on a fine balance - that indefinite duration is more likely than

Since, as the conflict of medical opinion referred to earlier demonstrates, the facts of the present case, (which I need not canvass), clearly fall in the borderline area, this misdirection of itself by the AAT on a point of law could have

The decision of the AAT should therefore be set aside and the case remitted to be heard and decided again in the light of this Court's reasons for decision. Whether the Tribunal will wish to hear further evidence will be a matter for it to decide.

It is unfortunate that delay in the prosecution of this appeal has led to an unwarranted gap between the original hearing and the

Before leaving the matter I should say that I have not considered, because it was not raised before us, another question referred to by the AAT, but not decided. The AAT said, "In fact we think that the applicant's personality disorder is the prime

and dominant feature in her condition as a whole". After quoting

from a decision of the AAT, constituted by Davies J., in Re Sheely

and Director-General of Social Security 1982 4 ALN N206 to the

effect that "permanent incapacity" within the meaning of the Act P P

must result from a medical disability, the AAT continued,

"In this case however it may be very much doubted whether there are grounds for concluding that the disabilities suffered by the present applicant are comprehended by the words "incapacitated for work". There is in our opinion much to be said for the view that the applicant's real problem is her "limited personality resources", to use Dr Nicholson's expression, rather than psychic illness in the sense described in the passage quoted."

The AAT then assumed this issue in the applicant's favour and went on to affirm the decision cancelling her pension

I only wish to say that I see this other matter raised

by the AAT as a difficult question into which I would not wish to venture without the benefit of argument, even though it could

I certify that this and the 16 preceding pages are a true and accurate copy of the Reasons

for Judgment herein of The Hon. Mr. Justice Woodward

) ) VICTORIA DISTRICT REGISTRY ) V. No. G.196 of 1982 ) )

BETWEEN: CARMEL ELIZABETH McDONALD Applicant and DIRECTOR-GENERAL OF SOCIAL SECURITY Respondent CORAM : Woodward, Northrop and Jenkinson JJ. DATE: 27 March 1984 PLACE: Melbourne NORTHROP J. REASONS FOR JUDGMENT Part III Social Security Act 1947 ("the Act") comprising sections 18 - 52 inclusive, contains provisions

relating to age and invalid pensions. In that Part, unless a contrary intention appears, the word "pension" is defined to include an age pension, an invalid pension and a wife's pension. The payment of age and invalid pensions is subject

to a means test and the method of implementing that test,

together with a discussion of some of the sections of the

Act, is discussed in Director-General of Social Security v.

Harris (1982) 44 A.L.R. 645 and in particular per Northrop J.

at pp.652-660. That case concerned an age pension, but the

same principles apply with respect to an invalid pension.

The present case concerns an invalid pension. Under paragraph 24(1)(a) of the Act "a person above the age of 16 years who is not receiving an age pension and ... is permanently incapacitated for work ... shall be qualified to receive an invalid pension". The phrase "permanently incapacitated for work" is not defined in the Act, but under s.23, for the purposes of Division 3 of Part II1I,comprising sections 23 - 27 inclusive, "a person shall be deemed to be permanently incapacitated for work if the degree of his

permanent incapacity for work is not less than 85%".

Part VII of the Act, comprising sections 106-133B inclusive, contains provisions relating to unemployment and sickness benefits. Under s.108, "a person (not being a person in receipt of a pension under Part III...) is qualified to receive a sickness benefit in respect of a period ( ... 'relevant period') if and only if ... the person satisfies the Director-General that, throughout the relevant period, he was incapacitated for work by reason of sickness or accident (being an incapacity of a temporary nature) and that he has thereby suffered a loss of salary, wages or other

income". The phrase "incapacity of a temporary nature" is

not defined in the Act but it is readily apparent that the

Act makes a distinction between a person who is "permanently incapacitated for work" and a person who is suffering an

The substantial question of law raised by this appeal concerns the meaning to be given to the phrase "permanently incapacitated for work" appearing in paragraph

A reference should be made to some of the other provisions of the Act. In Part III, unless a contrary intention appears, the word "claimant" means a person claiming a pension under Part III. Under s.37 a claim for an invalid pension is to be made in writing in accordance with the requirements of that section. When an invalid pension is granted, it is to be paid from a date determined by the Director-General; see s.39. The office of Director-General is constituted by s.7 of the Act, which is within Part II. Other offices are created under that Part. By s.12, the Director-General is empowered to delegate to other officers all or any of his powers and functions under the Act except the power of delegation. Under s.13, the Director-General is required to determine claims, including claims for an invalid pension, but in practice those claims are determined by delegates of the Director-General. Section 14 makes

provision for the Director-General, or his delegate, to

review determinations of officers under the Act, while s.15

allows appeals to the Director-General, or his delegate, from decisions of other officers within the Department. Under se-15A, and subject to the requirements set out in that section, a review of a decision of the Director-General, or his delegate, may be made by the Administrative Appeals

Tribunal ("the A.A.T."). In reviewing a decision, the A.A.T.

exercises all the powers and discretions conferred upon the

person who made the decision; see sub-section 43(1)

Where a person claims an invalid pension and except where it is manifest that the claimant is permanently incapacitated for work, the Director-General is required to direct that the claimant be examined by a legally qualified medical practioner who is required to certify whether, in his opinion, the claimant is permanently incapacitated for work; see s.27. Where an invalid pension is granted, the invalid pension is paid fortnightly; see s.4l. The Act contains special provisions applicable to persons who are permanently blind and nothing in these reasons is to be taken as applying to those persons. Under the provisions of Division 9 of Part

IIIT of the Act, comprising sections 44 to 46 inclusive,

pensions being paid are subject to regular review. It is not

necessary to refer to each of those sections. They are discussed in some detail in Harris's case, supra. The

the Director-General considers that the pension which is being paid to a pensioner should be cancelled or suspended, or that the rate of the pension which is being paid to a pensioner is greater or less than it should be, the Director-General may cancel or suspend

the pension, or reduce or increase the rate of the pension, accordingly."

reasons of Woodward J. and need not be repeated. It is sufficient to say that the applicant had been granted an invalid pension. A delegate of the Director-General had cancelled that pension. The applicant sought a review of

that decision by the A.A.T. The A.A.T. affirmed the

analyzed the evidence and material before it. In considering

the application of the Act to the facts found, it said:

"In Re Sheely and Director-General of Social Security (No. N8I/118, decision handed down 24

June 1982), Davies J (President) referred to the terms of s.23 and s.24 of the Act in the

'From the context in which the term "permanently incapacitated for work" appears, it may be inferred that the incapacity must result from a medical disability, whether that disability be physical or psychic. A disability, for the purposes of these sections, includes

all recognised medical conditions, injury, disease, psychosis, neurosis and the like. It comprehends the incidents of medical conditions, such as_ shock,

upset and the functional consequences of injury or disease. It includes those

cases of psychic illness which, whether or not they are properly classified as psychosis or neurosis, nevertheless have the consequence that the affected person is a sick person.'"

The A.A.T. expressed some doubts about whether the applicant was incapacitated for work within the meaning of paragraph 24(1)(a) of the Act, but assumed, for the purposes of the review, that she was so incapacitated. On that assumption,

the A.A.T. considered whether the applicant was permanently

incapacitated for work and expressed the opinion that it, the A.A.T., "should not, on the evidence, and in particular the evidence of Dr Nicholson which we accept, view this 32 year old woman as being 'permanently' incapacitated". Accordingly, the A.A.T. did not need to determine whether the applicant's degree of incapacity for work was not less than

On the evidence and material before it, the A.A.T. clearly was able to find that the applicant was not "permanently incapacitated for work" within the meaning of paragraph 24(1)(a) of the Act, but in coming to that view the Tribunal added a gloss to a general statement of principle

which they said should be applied. The general statement of

"We have taken into account the interpretation given to that phrase in Re Panke ane Director-General of Social Security (1981) ALD 179 at p.192, namely that 'permanent incapacity must be taken to refer to an incapacity which is likely to last indefinitely as opposed to one which is likely to last only for a time'

As stated earlier, the substantial question of law raised by the appeal is whether the A.A.T. misapplied paragraph 24(1)(a) of the Act. As stated in the amended

notice of appeal, the question of law raised by the appeal is

"Pinding that ' permanent incapacity' must be taken to refer to an incapacity which is likely to last indefinitely as to be opposed to one which is likely to last only for a time and that the decision maker should be able to form on the evidence a settled expectation of

the likelihood of such indefinite continuance of the incapacity."

The phrase "permanentiy incapacitated for work" appears in social welfare legislation which aiso makes provision for sickness benefits to be paid to a person "incapacitated for work" being "an incapacity of a temporary nature"; see s.108 of the Act. A aistinction of a temporal nature is thus drawn, even though in this context, of necessity, "permanent" must be limited in time. In some workers' compensation legislation, another type of social welfare legislation, reference is made to "permanent" disablement. In the context of that type of legislation, the High Court has characterized the concept of "permanent" as

being forever. Thus, in Wicks v. Union Steampship Company of New Zealand Ltd. (1933) 50 C.L.R. 328, the Court comprising

Gavan Duffy C.J., Rich, Starke, Dixon, Evatt and McTiernan

"The sub-section then excepted from the limitation cases of permanent and total disablement. The Commission was, therefore, called upon to decide whether the worker had been permanently and totally disabled, an expression which, in our opinion, means physically incapcitated from ever earning by work any part of his livelihood."

To some extent the absolute nature of "forever" in relation to an incapacity for work is eased by the statement of principles enunciated in Panke's case, supra, that under the Act, "permanent incapacity must be taken to refer to an incapacity which is likely to last indefinitely as opposed to one which is likely to last only for a time". I agree with the opinion of Woodward J. that under the Act the true test of whether incapacity for work is permanent as distinct from being of a temporary nature is whether, in the light of ail the evidence and material before the Director-General, or his delegate, or the A.A.T., the incapacity for work is more

likely than not to persist in the foreseeable future. I

agree also with the application of the test as expressed by

The provisions of the Act, especially the provisions of Division 9 of Part III, make it clear that although there must be finality concerning the fortnightly payments of invalid pension, there is no permanency in relation to their continuity. The Director-General has an obligation to maintain a constant review of the entitlement to and the payment of the invalid pension. He has power to cancel an invalid pension where the pensioner is no longer qualified to receive it. All the provisions of that Division support the view that an absolute application of the test of

"permanency" should not be adhered to when applying the

At a glance

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Judgment (295 paragraphs)

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Cases Cited (1)

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