International v ol Min for

International v ol Min for - [1933] HCA 30 - HCA 1933 case summary — Zoe

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Government medical officer, Bott was admitted to a public hospital as suffering from rheumatism. In August 1932 he applied to the Repatriation Commission for a reconsideration of his case under sec. 45x (7) of the Australian Soldiers' Repatriation Act, and submitted some further facts and documents. The Commission reconsidered his claim, but in September 1932 again disallowed it and advised him that if he were still dissatisfied he could lodge a further appeal with the War Pensions Entitlement Appeal Tribunal. A further appeal, which was lodged accordingly by Bott on 31st October 1932, was heard by the Tribunal on 24th February 1933. Although he was present thereat in person Bott was, as authorized by sec. 45r of the Act, represented at the hearing by Thomas William McLaren, a person who was not a legal practitioner. The Tribunal had before it the documents which had been before the Commission, and it also heard evidence on oath, given in support of the appeal by Dr. Brennand, the Commonwealth Medical Referee for Invalid Pensions in Sydney, and by Dr. Sherwood who had examined and prescribed for Bott whilst he was a patient at a public hospital, to the effect that Bott was suffering from chronic rheumatism. No further evidence was tendered by the Commission. At the request of the Tribunal, Bott was x-rayed on 28th February 1933 and the resulting xtay film, together with other x-ray films taken previously and a full summary of the medical evidence relating to the case, was forwarded to two physicians who had not previously examined him. The physicians, Dr. Blackburn and Dr. Holmes a'Court, were informed by the Tribunal that before deciding the appeal the Tribunal desired that they, in consultation, examine Bott and, after a perusal of the medical evidence forwarded to them, express an opinion as to whether he was suffering from any after effects of theumatic fever which was recorded in his overseas record. Bott was accordingly examined by the physicians, who, on 28th March 1933, reported : - " We examined the above ex-soldier in consulta- tion. We found that he had marked oral sepsis, a very dirty tongue, and somewhat unhealthy tonsils. We also found him to be in an extremely nervous state. We failed to find any evidence of theumatism in his joints. We are of opinion that he is not suffering any after effects of rheumatic fever which is recorded in his overseas

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suffering from rheumatism and that the complaint was a continua- 4-0: oF A. tion of, or related to, the rheumatic fever contracted by Bott in Se 1915; according to the sworn evidence of both doctors Bott Tu Krxe 'was permanently incapacitated ; the representative of the Commis- War sion present at the hearing of the appeal declined to ask any pe questions of either of the two doctors, and did not submit any caee ; further evidence ; Bott was present but was not called as a witness = re and no questions were asked of him ; he, McLaren, on 6th April 1933 = - - attended before the Tribunal at a further hearing of the appeal ; immediately the proceedings opened he requested the chairman of the Tribunal to allow Bott to be present but the request was not acceded to; the chairman then read a joint certificate by Dr. Blackburn and Dr. Holmes a'Court to the effect that Bott was not suffering from rheumatism and that his complaint was not attributable to war service; he, McLaren, was then asked by the chairman if he had any further evidence to tender and he replied by asking: "Are the doctors who give this certificate here to give evidence on oath and offer themselves for cross-examination ? " and the reply was "No"; he then addressed the Tribunal in respect of the sworn evidence given by Dr. Brennand and Dr. Sher- wood, and directed the attention of the Tribunal to the provisions of sec. 45w (2) of the Australian Soldiers' Repatriation Act 1920- 1931; he asked the chairman if it was intended to give the decision immediately, and he was informed that the Tribunal would deliberate and communicate its decision to Bott. Bott stated in an affidavit that on 5th April 1933 he was notified to attend before the Tribunal and on the following day he accompanied McLaren to the seat of the Tribunal at Chalmers Street, Sydney, where he was informed by the secretary to the Tribunal that he, the secretary, did not think that Bott would be allowed into the room where the Tribunal sat, and that as the result of the Tribunal's refusal of McLaren's request in this regard he, Bott, was not present during any part of the proceedings that took place before the Tribunal that day.

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Australia, and eventually on 4th September 1916 he was discharged as unfit for further service and was granted a pension under the War Pensions Act 1914-1916. Four months later he re-enlisted for home service, but after six weeks he was again discharged as unfit through theumatism. From time to time his pension was varied in scale and amount and finally it was cancelled as from Ist January 1920. An appeal to the Commissioner of Pensions under sec. 6 of the War Pensions Act 1914-1916 against the cancellation was disallowed by a notification, dated 21st February 1920, which stated that in view of the medical evidence, which showed that he was not then suffering from any incapacity resulting from his employment in connection with warlike operations, it was regretted that his pension could not be restored. On 12th November 1930, the prosecutor claimed a pension under the Australian Soldiers' Repatriation Act 1920-1929 on the ground that he suffered from chronic rheumatism arising from war service. The Repatriation Commission obtained reports upon his condition. The reports concluded with an opinion by a medical officer who said that he could not satisfy himself that the prosecutor did suffer from any rheumatism and that, as a hospital investigation had led to a diagnosis of debility and bad teeth, he thought that the soldier's symptoms were best explained by neurosis, due possibly to misfortune since the war and uninfluenced by war service. Thereupon, the Repatriation Commission rejected the prosecutor's claim to a pension and by a notification, dated 20th January 1931, informed him that the investigation of his case disclosed that he was suffering from debility, neurosis and defective teeth, which conditions the Commission decided were not attributable to war service, and that he was not eligible for a war pension. He was further informed that he had a right of appeal to the War Pensions Entitlement Appeal Tribunal. He appealed accordingly. Jn his appeal he gave the nature of his disability as chronic theumatism and attempted to establish that he was suffering from that complaint. The Appeal Tribunal, after making inquiries directed to the question whether he did suffer from chronic theumatism, dismissed the appeal by a decision dated 16th October 1931, which stated that the appeal was disallowed in respect of that disease. The prosecutor then applied for and obtained an invalid

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medical board recommended his discharge, and he was return Australia, arriving about June of 1916. He claimed a war under the War Pensions Act 1914-1915, and in August of 1916 obtained such a pension, and it was continued, in varying amoun until January 1920, when it was cancelled on the ground th was no longer suffering from any incapacity caused by war servie In 1920, the Australian Soldiers' Repatriation Act was passed. applicant applied for a pension under this Act, but in January 1 his application was rejected by the Repatriation Commission, whic advised him that he had a right of appeal to the War P Entitlement Appeal Tribunal (Australian Soldiers' Repatriation 4 1920-1931, sec. 45x). In February 1931 he appealed to this Tribun which in October 1931 disallowed his claim. In August 1932, the applicant applied to the Repatriation Commission for a reconsiders tion of his case, under sec. 45K (7) of the Act, and submitted further facts and documents. The Commission reconsidered claim, but in September 1932 again disallowed it, and advised that, if he were still dissatisfied, then he could lodge a further app with the War Pensions Entitlement Appeal Tribunal. In Octob 1932, he so appealed. By sec. 45k (7), it is provided that in sud circumstances the Appeal Tribunal "shall consider the evidence and decide the appeal." On the hearing of this appeal, applicant was represented by T. W. McLaren, a layman. further evidence submitted on his behalf was considered, but ¢ Tribunal did much more before reaching a decision. It re that the applicant should be submitted to an x-ray examination and that the opinion of two independent medical experts be obta The instructions to these experts were in the following terms "The ex-soldier has lodged an appeal to the War Pensions Entit ment Appeal Tribunal that his complaint of chronic rheumatism due to his war service. The Repatriation Commission found 2 evidence of rheumatism and has rejected his disabilities of de and bad teeth neurosis as not attributable to war service.

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oath and to require the production of documents (sec. 45s). An appellant may attend in person any sittings at which his appeal is being heard, or may be represented at his own expense at the hearing by a person other than a legal practitioner (sec. 45r). But sec. 45w (2) enacts that, subject to the Act, an Appeal Tribunal shall not, in the hearing of appeals, be bound by any rules of evidence, but shall act according to substantial justice and the merits of the ease (cf. Moses v. Parker ; Ex parte Moses (1)). No doubt, "when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the oppor- tunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same. In the case of a Court of law tradition . . . has prescribed certain principles to which in the main the procedure must conform. But what that procedure is to be in detail must depend on the nature of the tribunal " (Local Government Board v. Arlidge (2) ). Rules laid down by the Act must be observed because they are imposed by the Act and for no other reason (3). Apart from the character of the duty imposed upon the Appeal Tribunal, the provisions of sec. 45w (2) make it clear that that tribunal was under no obligation to follow wholly or in any special respects the procedure of a Court of Jaw: it was largely master of its own procedure; its duty was lawfully performed if it observed the express provisions of the Act and did not violate any substantial requirement of justice. The applicant was in fact given an adequate opportunity of presenting his case, and there was no failure of justice in that respect. Evidence was received both for and against him that was not on oath; but the Act imposed no obligation upon the Appeal Tribunal to take evidence upon oath, though it was empowered to do so if that course were considered desirable. Again, obtaining the opinion of indepen- dent medical experts is not in any way opposed to substantial justice. The Appeal Tribunal can obtain information in any way

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Blackburn and Dr. Holmes a'Court for their information, The Tril received the report from Dr. Blackburn and Dr. Holmes a'Court, and sub quently, as was its custom, notified the applicant's advocate that he could se such report and make such comments thereon as he wished. . . . recollection is that when the certificate from Dr. Blackburn and Dr. Holm a'Court was shown to the advocate for the applicant he said that the certif was ridiculous. At the hearing the applicant called Dr. Brennand, Commo wealth Medical Referee for Invalid Pensions in Sydney, and Dr. Sherwood as there was a mass of evidence before the Tribunal which appeared to con tradict the evidence of these two doctors the Tribunal had the examin made by two independent experts who were not called by the Repatriati Commission or by the applicant. 'The opinion of these experts was obtaii notwithstanding the fact that the Tribunal did not consider that the app had made out a prima facie case in support of his claim. An additional that the Tribunal considered it desirable in this case to get an outside was that there was a conflict between the Repatriation Commission and the Old-Age and Invalid Pensions authorities. The affidavit of Mr. McLaren states : "On the 6th day of April 1933 I attended before the Tribunal at a furth hearing of the appeal. Immediately the proceedings opened I requested chairman to allow the appellant to be present but this request was not acced to. The chairman then read a joint certificate from Dr. Blackburn and Dr. Holmes a'Court to the effect that the appellant was not suffering from rh matism and his complaint was not attributable to war service. . . . I then asked by the chairman if I had any further evidence to tender and replied by asking ' Are the doctors who gave this certificate here to give evid on oath and offer themselves for cross-examination ? ' and the reply was 'No: Tasked 'Is the Commission prepared to offer them, in view of the fact that we submitted Dr. Brennand's evidence on oath - the chairman here interrupteé and said 'But you would not compare Dr. Brennand with Dr. Black! would you?' and I said 'Why not? Dr. Brennand is a qualified medical practitioner,' and the chairman said nothing further to my reply. addressed the Tribunal and urged that in face of the sworn testimony of Dr Brennand, a responsible Commonwealth officer, the testimony of Dr. Sher who had been treating the appellant over a long period, and the other put forward on his behalf that the Tribunal should not attempt to dispose | the case and apparently make an adverse decision on the case now put fo by the Commission. I pointed out that sec. 45w, sub-section 2, specifically stated that if the appellant had made out a prima facie case that the onus 0 proof had not been discharged and could not be discharged except by positi evidence given on oath. I concluded by saying that if the decision of th Tribunal was adverse, in view of the fact that I had reminded them of thé provisions, I felt that it was a refusal to accord to the appellant natural justi asked the chairman if he intended to give the decision immediately and w

At a glance

Court

Decision date

Before

Source

Judgment (184 paragraphs)

Parties