Administrative Law - Review of Administrative Action - Defence Service Homes Act 1918 (Cth), s 4AAA - Statutory Interpretation - whether "incapacity to perform duties" means incapacity to perform any military duty at all

Defence Act 1903 (Cth): s 44

Defence Force Retirement and Death Benefits Act 1973 (Cth)

Defence Service Homes Act 1918 (Cth): s 4AAA

Veterans Entitlements Act 1986 (Cth)

Defence Force Retirement and Death Benefits Authority v Britt (1984)

[1985] VicRp 11; 57 ALR 199

Graham v Repatriation Commission (Administrative Appeals Tribunal, Handley, 7 March 1996)

Gransbury v Repatriation Commission (Administrative Appeals Tribunal, Purcell, Hancock, Davies, 11 March 1993)

Re Medcalf and Department of Veterans' Affairs (1991) 23 ALD 502

Repatriation Commission v Hawkins [1993] FCA 479; (1993) 117 ALR 225

Sillitoe v Department of Veterans Affairs (Administrative Appeals

Starcevich v Repatriation Commission (1987) 18 FCR 221

Trusty v Repatriation Commission (Administrative Appeals Tribunal,

Solicitor for the Respondent : Australian Government Solicitor

1. The appeal be allowed. 2. The decision of the Tribunal be set aside, and the matter be remitted to the respondent for further consideration in accordance with the direction that the applicant is a "regular serviceman" within s 4AAA of the Defence Service Homes Act 1918 (Cth). 3. The cross-appeal be dismissed. 4. The respondent is to pay the applicant's costs of the appeal and cross-appeal. MADGWICK J This is an appeal and cross-appeal from a decision of the Administrative Appeals Tribunal which affirmed a decision of the Secretary of the Department of Veterans' Affairs. The Secretary had decided that the appellant was not eligible, under the Defence Service Homes Act 1918 (Cth) ("the DSH Act"), for the benefits which that Act provides, namely, home loan assistance. I. The Facts and the Issues

Mr Whiteman, the appellant, joined the Army in 1981 when he was seventeen, hoping to make it his career. He enlisted for 6 years, and became an assault trooper.

Bad fortune befell him in his fifth year of service: while parachuting, an activity approved by his Commanding Officer, he broke his ankle. It was a serious injury, putting him in hospital for some months and subsequently causing his superiors to rate his fitness as "below medical standard" (BMS). That meant he could no longer be an assault trooper.

His superior officers counselled him while he was still in hospital. He was told that he had a choice: he could transfer to another corps and be a storeman, or he could be discharged, at his own request, on medical grounds. He chose the latter. He did not want a corps transfer, partly because he wanted to be an assault trooper, not a storeman, and partly, it seems, because he was told that there would be little future for him in the Army, there being, apparently, a process in train to weed out members who were not 100 per cent fit. He requested, and was eventually granted, a discharge.

The military procedures for discharge involve much paperwork, passed through many hands up and down the chain of command. The procedures and paperwork are governed by numerous codes, acronyms and other military jargon. The result, for Mr Whiteman, of this process and the military way of doing things, was that his papers on discharge show him as having been discharged "at own request" or, in military jargon, "AOR". Army regulations permit discharges only for certain, specified reasons. Section 44 of the Defence Act 1903 (Cth) is in these terms:

"44.(1) Subject to the regulations, a soldier may at any time be discharged by the Chief of the General Staff for such reasons as are prescribed, notwithstanding: (a) that the soldier has not completed the period for which the soldier is enlisted; or (b) that he has not attained the age prescribed for his compulsory retirement. (2) Where a soldier has been discharged under subsection (1) and the Chief of the General Staff or any person to whom powers under that subsection have been delegated is satisfied that the soldier could properly have been discharged under that subsection for a prescribed reason other than that for which he was discharged, the Chief of the General Staff or the delegate, as the case may be, may, at the request of the soldier, take such steps as are necessary to ensure that he is treated as having been discharged for that other reason, including the taking of steps to amend any relevant order of discharge and any other relevant documents.

The "prescribed reasons" are set out in Army Regulation 176:

(1) For the purposes of section 44 of the Act, each of the following reasons is a reason for the discharge of a soldier . . .:- (a) that the soldier has requested his discharge; . . . (h) that the soldier is medically unfit . . ."

The above appear to be the only prescribed reasons for discharge that might be relevant to this matter.

In October 1994, Mr Whiteman applied to the Secretary of the Department of Veterans Affairs for a certificate of eligibility under the DSH Act, an Act that makes provision for assistance to members of the Defence Force and certain other people, by way of low-interest loans, to acquire homes. To be eligible for such assistance a person must meet the criteria of a number of definition sections, including s 4AAA of the Act. The effect of those sections is to make eligible those soldiers who have continuously served in the Defence Forces for a certain period, or, in the case of ex-soldiers, those who were engaged for that period of service but, for medical reasons, did not complete that service. Such an eligible person is termed "a regular serviceman". Paragraph (b)(ii) of s 4AAA(1) is relevant to the Applicant:

4AAA. (1) Subject to this section, a person is a regular serviceman for the purposes of this Act if: ... (b) he was engaged to serve as a member of the Defence Force for a period of continuous full-time service of: ... (ii) ... not less than 6 years; but that service ended ... by reason of . . . his discharge on the ground of invalidity or physical or mental incapacity to perform duties; ...

The Secretary declined to issue him a certificate of eligibility under the Act. Mr Whiteman then applied to have the Secretary's decision reviewed by the Administrative Appeals Tribunal ("the AAT").

The AAT affirmed the Secretary's decision. In short, it decided that the Applicant was not eligible, because he was not discharged for the reason required by s 4AAA(1)(b)(ii): that is, his discharge was not on the ground of "invalidity or ... incapacity to perform duties". The Tribunal Member, as is evident from the following extract from his Reasons for Decision, took the view that that phrase refers to incapacity to perform "any (military) duties" at all, rather than to incapacity to perform the specific duties of the member prior to discharge (in this case, assault-trooper duties).

Mr Whiteman could have accepted a Corps transfer, remaining in the Army to perform light, non-combatant duties as, say, a storeman. Therefore, the Tribunal Member thought, he did not fall within the definition in the Act and was thus ineligible.

The proper construction of the phrase "discharge on the ground of incapacity to perform duties" in the Act is the substantive issue in this case.

The other issue is a jurisdictional one. It concerns whether the decision-maker (the Departmental Secretary) has the power, when determining eligibility under the Act, to go behind the Army's stated reason for discharge (that is, the reason contained in the member's discharge record). There is conflicting authority on this point, but the Tribunal Member clearly thought there was such power:

That issue is the subject-matter of the respondent's cross-appeal in these proceedings. It is convenient to deal with that matter first. II. The Jurisdictional Issue

Does the respondent have power, and is he or she required, under s16(1) of the DSH Act, to determine whether a member was discharged on grounds other than the reason stated in the member's record of discharge? Section 16(1) is as follows:

16. (1) Where, on application by a person for a notice of eligibility, the Secretary is satisfied that the applicant is an eligible person, the Secretary shall issue to the applicant a notice of eligibility.

Counsel for the respondent contends that there is no such power; that the decision-maker cannot look beyond the military's stated reason. Two themes emerge from the submissions. The first is that to do so would involve a rewriting of the military records; the second involves the idea that the military authorities are the "appropriate" ones to decide the reasons for discharge and their decision ought not be held to be reviewable. The submissions refer to a division of opinion in the AAT on this issue and, it is argued, the matter requires clarification. Decisions in the Administrative Appeals Tribunal

The division of opinion refers to two cases: the decision of O'Connor J in Re Medcalf and Department of Veteran Affairs (1991) 23 ALD 502, on the one hand, and the approach taken by Senior Member Handley in Graham v Repatriation Commission (AAT, 7 March 1996, unreported) and other cases, on the other.

In Medcalf, O'Connor J and others held that the test in s 16(1) requires an inquiry by the decision-maker (and the AAT) into, and characterisation of, the actual ground of discharge, rather than an inquiry to discover merely the formal or officially-stated ground. The case concerned a woman who was discharged from the Army after she became pregnant. Her papers showed her as having been discharged "at own request", but she was really discharged because she was pregnant. The only alternative for the woman under Army regulations was to be discharged on the ground "retention not in the interests of Australia or the Armed Forces", a ground much less generally favourable than "at own request". O'Connor J found in favour of the woman. In her reasoning, O'Connor J said:

"in 1973 when s 4AAA was introduced there was no specific (military) ground for discharge (on the ground of) physical or mental incapacity to perform duties". The nearest ground was "medically unfit". It follows that the words "ground of invalidity or physical or mental incapacity to perform duties" in s 4AAA(1)(b)(ii) are not intended to reproduce the actual grounds of discharge in the Military Regulations. As these words refer to the actual grounds of discharge and not a legally or administratively defined ground, the Tribunal considers it is entitled to look behind the ground stated in the applicant's Record of Service and to determine the actual ground on which the applicant was discharged."

I agree with her Honour's analysis. It applies equally in this case.

Graham concerned an ex-sailor's eligibility for a pension under the Veteran's Entitlements Act 1986 (Cth) ("the VE Act"), an Act with eligibility provisions similar to those in s 4AAA of the DSH Act. In each, eligibility depends on a service person's having continuously served either for a certain period or, for a lesser period in the case of a member who was discharged "on the ground of invalidity or physical or mental incapacity to perform duties". In Graham, the member was discharged as "unsuitable". However, his Counsel submitted there were other, medical reasons that could have warranted the member's discharge, and that the Tribunal should look at those when considering the reason for discharge for the purpose of eligibility. Senior Member Handley seems to have thought that there needed to be a provision explicitly empowering the Tribunal to look further than the stated reason, and he could not find one:

"Courts and Tribunals function because of powers given, not in the absence of powers. I know of no authority which permits this Tribunal to substitute a reason for the applicant's discharge which differs from the reason given, at the time of discharge and by the person or authority empowered to do so. I can find nothing in the AAT Act, the Veteran's Entitlements Act or the Naval Defence Act which empowers the Tribunal to substitute the reason for discharge..." ... Although the Act is remedial legislation, and thus should not receive a narrow and pedantic construction, provisions of the Act are not to be taken to the extremes of artificial construction. The Tribunal cannot depart from the accepted rules of statutory construction unless there is good reason to do so ... The provisions of the Act ... are clear and unambiguous. Significantly, there is nothing which directs the Tribunal to go behind the stated reasons for decision to determine whether a person is a "member of the forces". ... Administrative chaos would occur...if those reasons (as recorded in the Naval records) were allowed to stand, unaltered, but another or additional reason was later given by this Tribunal..."

With respect, I disagree. The learned Senior Member, it seems to me, over-emphasised the notions of "powers given" to the primary decision-maker and "substitution" of the AAT's views therefor. This seems to have led to a misunderstanding of the legislation.

First, one should not assume that, because there are no express words empowering the AAT to examine the validity of a finding, there is, therefore, no power. Neither is there any explicit direction to the contrary. But, as O'Connor J pointed out, the legislation is in a form apt to suggest that the reality, rather than an Army administrator's opinion, was to be the discrimen.

Second, the learned Senior Member's use of the word "substitute" is misconceived. It assumes that, when the legislation conferring benefits speaks of the grounds of discharge, it is necessarily referring to the grounds of discharge as, for military purposes, those grounds are required to be described in military records. Only in such a case could a decision-maker's determination under the Act be understood as involving a displacement or "substitution" of the ground for discharge. But neither of the sections (in the VE Act and the DSH Act) indicates that the relevant Act is to be so interpreted. Such legislation deals with rights to benefits attaching to present or past military service and has provisions designed for its purposes; the laws governing the military forces and their procedures and records for dealing with serving soldiers, are designed for their purposes. The decision-maker's determination of the grounds of discharge for the purposes of the benefits legislation need have no effect at all on the military's procedures, determinations or records. It is difficult to see any danger of "administrative chaos", as suggested by the learned Senior Member in Graham. Symmetry is not all.

Another argument was upheld in Graham and advanced before me. It relies on the presence of a section in the Naval Defence Act 1910 (Cth) (in the case before me the equivalent provision is s 44 of the Defence Act 1903 (Cth) set out above) providing for the amendment of a member's record of discharge on the recommendation of the Chief of Staff. It is contended that, because such a provision is available and the member can seek a military remedy where a formal reason for discharge less favourable than another available one has been chosen, this is further reason for construing s 4AAA in a way that makes the military decision final. That is, the military decision can be adjusted, if required.

A sufficient answer to this argument is that the Defence Act provision is directed to avoiding detriment to a soldier when there is a choice between competing "prescribed reasons" for discharge. But there is nothing that requires, nor is it a fact, that the "prescribed reasons" for discharge should include one that necessarily determines the eligibility question posed by the DSH Act. Indeed, such non-coincidence actually furnishes a strong reason for not treating the Army's stated reason for discharge as necessarily factual: the decision-maker might not be able to determine the matter solely in reliance on a stated and prescribed reason for discharge. The "medically unfit" version simply raises the same task of interpretation in the phrase at issue in the DFRDB Act.

Counsel for the respondent referred me to other decisions of the AAT that either support, or leave open, the view that, where a decision-maker must determine eligibility by reference to the "reasons for discharge", the decision-maker must not look behind the reason stated in the member's military records. (See Gransbury v Repatriation Commission (AAT, 11 March 1993, unreported); Trusty v Repatriation Commission (AAT, 5 May 1993, unreported) and Sillitoe v Department of Veteran Affairs, AAT, (Purvis J) 21 November 1996, unreported). Each of these cases may be distinguished, or, for the same reasons as in Graham, rejected. I see in none of them any reason for rejecting the view of O'Connor J in Medcalf. B. The structure of other legislation conferring benefits on Defence Force personnel

However, the Respondent's primary submission, as I understood it, in support of the conclusiveness of the military reason for discharge relies on the decision in Defence Force Retirement and Death Benefits Act v Britt [1985] VicRp 11; (1984) 57 ALR 199 (which concerns yet another beneficial Act, the Defence Force Retirement and Death Benefits Act 1973 (Cth) ("the DFRDB Act")). The Respondent's argument is that, if the words in s 4AAA(1)(b) of the DSH Act were apt to confer power on the decision-maker to determine the actual reason for discharge, then it is impossible to understand why the legislature needed to include s 37 when creating the DFRDB Act. Section 37 of that Act provides a specific procedure for dealing with the cases of members retired otherwise than "on the ground of invalidity or mental or physical incapacity", but who might, nevertheless, have been so retired and thereby have become eligible for the retirement benefits the DFRDB Act provides. The scheme (relevantly to present considerations) of the DFRDB Act is this: The notice of retirement under the Defence Act 1903 appears a complex one: see, eg, ss 26, 27, 36(1)(b), 37; as indeed is discharge: ss 38-44 ibid.

Section 26 of the DFRDB Act provides that where a member who has been making contributions under the Act "is retired on the ground of invalidity or of physical or mental incapacity to perform his duties he is entitled, on his retirement, to invalidity benefit in accordance with" the Act.

"Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff or a person authorized in writing by the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground."

"Retirement" is defined to include discharge and "retire" has a corresponding meaning: s 3(1). The mechanism in s 37 requires the assent of military personnel to the proposition that retirement or incapacity grounds had been available, and such assent is a pre-condition to the exercise of the power to the DFRDB Act decision-maker to grant a pension provided by that section. The argument runs that, where it is statutorily intended that a decision-maker, whose task is to determine whether a post-military service benefit is payable, should look beyond the military's stated reason for discharge, the legislative procedure adopted is to provide for consultation with and assent by the military. Therefore, it is argued, the absence of any comparable scheme in the DSH Act suggests that the military's stated ground is to be conclusive.

The problem with the argument is, again, the assumption it makes: that is, that the two separate Acts (this time the DFRDB Act and the DSH Act) need to be brought, despite their differences, into complete congruence. But it cannot be assumed that, because a consultation and assent mechanism is absent in the DSH Act, such absence must be "remedied" by a construction that brings the DSH Act into line with the DFRDB Act. This assumes that the Acts were intended to operate in the same manner as to the determination of eligibility, when there is no necessary reason for such an assumption. The primary decision-makers are different (in the case of the DFRDB Act, there is a multi-member authority (s 81)), and the Acts serve different purposes: one confers quite limited benefits by way of low-interest home loans, the other confers substantial superannuation-type benefits on retirement or death. There may well be good reasons for prescribing a consultation and assent mechanism in one and not in the other. For example, the framers of the legislation may well have considered that the more valuable benefits conferred on eligible people under the DFRDB Act might warrant a more fulsome inquiry and the assent of the military, because there is more at stake, than is required for the purposes of the DSH Act. In the case of the DSH Act, where the benefits are less substantial, the legislature appears to have been content to leave it to the decision-maker to determine the issue, with a degree of informality. If the answer is not obvious from the military's stated ground (eg, because as here the stated ground, "at own request", casts no light on invalidity, etc.), the decision-maker may need to look further; a simple factual inquiry could then determine the actual reason for the discharge for the purposes of the Act, without the need for formal consultation with military personnel.

The argument seeks to draw comfort from analogous legislation. However, arguments from analogy famously require caution. Britt itself provides support for this view: the Court (at 203) refused to consider other enactments in order to interpret the DFRDB Act:

"we think that s 37 deals with a quite distinct subject-matter and ought to be read having regard to the context of the Act and not by reference to other enactments".

One reason for this is that, as Parliament has seen fit to establish separate statutory schemes, it should not lightly be assumed that there was no sensible reason for doing so. It may be unhelpful to speculate why one scheme of entitlements is framed in one way and another scheme in another way. The proper starting point is to look at the particular Act and the purposes it manifests to see if there is any requirement to construe it consistently with any other law (whether it be another benefit-conferring Act or some military law or prescribed procedure). Unless there is some reason thus apparent from the DSH Act itself to construe it consistently with the DFRDB Act, the words of the DSH Act will simply have the meaning they bear for the purposes of the DSH Act. C. Possibly undesirable consequences of reliance on the military's stated ground of discharge

There are good reasons for a construction of s 4AAA of the DSH Act that not only allows the decision-maker to determine the issue, but also requires him or her to do so. To rely on the military's stated reason could lead to injustice in some cases. The reason may have been erroneously or misleadingly stated. The Court should prefer an available construction that would avoid that. The potential for injustice stems from the inflexibility of an approach that treats words used in one context as having clearly-defined, "objective" meanings apt for application in another. But it is generally not possible to understand what is meant by a word or phrase without knowing something of its context.

The present case furnishes an example. Assume for the moment, as the Respondent would have it, that the AAT had no power to look beyond the stated ground of discharge. In this case the ground was: "at own request". On the face of it, this implies that the member asked to leave instead of being asked to leave. It connotes a voluntary departure, rather than one attended with involuntariness. Insofar as invalidity and incapacity for work are usually so attended, the phrase predisposes one against a conclusion that such incapacity was involved. But none of this helps to understand the question posed by the DSH Act: "AOR" is simply one of the categories that is apparently meaningful to the Army for its purposes, which are, no doubt, various. It does not necessarily bear upon the criteria for determining whether a member should get a cheap home loan or not. It obscures a very real possibility: an incapacitated or invalid soldier might seek, at his/her own request, to be discharged. D Beneficial purpose of the Act

If, contrary to my opinion, the matter is ambiguous, the nature of the legislation is relevant: it is beneficial legislation and should be construed beneficially in favour of the applicant.

What was said in Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 (and approved in Repatriation Commission v Hawkins [1993] FCA 479; (1993) 117 ALR 225 at 231) is relevant here:

"It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation; it has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen."

The eligibility provisions of the DSH Act taken in the context of the Act, appear to have the purpose of providing a benefit (by way of concession, reward or incentive) to people who have spent 6 years in the service of their country, or to people who have committed themselves to such a period of service and would have so served but for some legitimate reason such as, say, a medical one. To construe the Act in a way that would necessarily preclude further inquiry into the eligibility for a house loan of a person such as the applicant, whose formal record of service does not happen to include the words "discharged on grounds of invalidity or incapacity to perform duties" but whose claimed actual reason for discharge was his physical inability to perform many military duties, would tend against the Act's beneficial purpose. III. Substantive Issue

The substantive issue, the subject of the applicant's appeal, is whether, within the true meaning of s 4AAA of the DSH Act, the applicant was discharged on the ground of invalidity or physical or mental incapacity to perform duties.

The Tribunal took a narrow view, taking the section to refer to a discharge on account of inability to perform any military service. The appellant argued that "duties" should be understood more widely, such that the incapacity of a member to perform some, but not all kinds of, duties would satisfy the section. In other words, if Mr Whiteman was discharged because he could not perform assault- trooper's duties and, obviously, other duties requiring the full strength and agility of both legs, then it could be said that he was discharged on the ground of "incapacity to perform duties".

In the first place, to look at the matter technically, there is nothing to suggest that the word "duties" is to be understood to mean "all military duties" or "any military duty". There is no reason to assume that the absence of some such qualification of the word "duties" was not deliberate. A lack of such qualification would, indeed, be consistent with the beneficial purpose of the legislation. And, unless it is clear from the context or otherwise that some other intention has been evinced, familiar principles of construction suggest that the proper interpretation is the beneficial one.

Counsel for the respondent argued that if Parliament had intended to refer to incapacity for the particular, usual duties of the member it would have been simple to have included the words "his or her" before "duties". The absence of such explanatory possessives, according to the Respondent, grounds an inference that Parliament had the contrary intention. This argument has some superficial appeal, but there is no more reason to draw such an inference from such an absence of explanation, then to draw the contrary inference from the absence of an express, and equally simply expressed, explanation that "any military duty" was intended as the test. It may be conceded that Parliament would hardly have intended that a person be eligible for a home loan because of a discharge on the ground of incapacity to perform any particular duties, however trivial (assuming that such a discharge would, in the real world, ever be granted); it could not have been intended that a person who suffered a very minor injury or illness, and therefore could not perform every possible Army duty, might be eligible under the Act. However, as a matter of ordinary language, there is a distinction between "invalidity" and "incapacity to perform duties". "Invalidity" would, practically speaking, refer to an incapacity for virtually every kind of military duty. If the words "incapacity to perform duties" are to be interpreted to mean such a degree of incapacity as the respondent contends, they would therefore be superfluous. It is to be assumed that words used in a statute are not otiose, unless the contrary plainly appears.

Thus there is no reason to read the expression "incapacity to perform duties" as subject to some implicit qualification. In the result, there is some elasticity in the section: whether there has been a discharge on the ground of "incapacity to perform duties" can only be judged in the circumstances of each case: it becomes a question of fact. That is not a problem of such an interpretation, but a benefit of it. It is entirely consistent with the beneficial nature of the legislation. The question for the decision-maker, when determining an applicant's eligibility, would be this: is the applicant to be regarded, as a matter of ordinary language, as having been discharged on the ground of his or her incapacity to perform duties? It is no more than a restatement of that test to put it in the following way, which may perhaps, be more helpful to a decision-maker: is it fair to say that physical or mental incapacity for some or all military duties was the factor actuating the military discharge of the person in question? It is to be noticed that the test, as so framed, does not involve the distractions of inquiring whether (a) the person's discharge was voluntary or involuntary, (b) the applicant for a defence home loan had a remnant capacity to perform some military duties or none, or (c) there were or were not other factors also operating to bring about the discharge - it is enough if incapacity to perform some military duties was a sufficiently substantial and operative factor that it is reasonable to say that that was the ground of the discharge. IV. Conclusions

For the foregoing reasons I conclude: (1) that, in determining eligibility of a member under the DSH Act, the respondent is not limited to adoption of, or inference from, the bare reason for discharge stated in the member's record of service, but should determine the truth and substance of the matter for himself/herself, and (2) that test is not whether the discharge was actuated by the member's unfitness for any military duty, however physically undemanding.

The appeal therefore succeeds and the cross-appeal fails. V. How ought the Court proceed?

Having found that the Tribunal erred in law as to the meaning of s 4AAA, the court can either remit the matter to be determined by the Tribunal on the proper construction of the section or, if it be the case that, on the proper construction of the section and on the facts as found by the Tribunal (or, practically speaking, as they must be found), there is only one conclusion available, can decide the matter itself.

It appears beyond question that the applicant was a dedicated, young soldier and that, only on account of the serious injury he sustained, would he or the military administration have considered his discharge. Although he applied for a discharge, he was actuated by the degree of his physical incapacity so to do. The discharge was effected by the military administration and so effected in the exercise of a discretion. His commanding officers supported his discharge because of his physical limitations. There was no factor apparent or suggested, other than the physical limitations upon his performing many kinds of activity and work, and therefore military duties, which might have accounted for the reasonable exercise of that discretion in his favour. To say that, on the true test, he was not discharged on the ground of physical incapacity to perform duties would, in my opinion, be simply perverse. The Court ought, in these circumstances, to determine the matter finally.