[1990] FCA 526; 22 ALD 557

Veterans' Affairs - review of decision of Veterans' Review Board refusing claim for pension - whether reasonable hypothesis of relevant connection between death of veteran and circumstances of his war service

Administrative Law - improper exercise of power - natural justice - whether Veterans' Review Board bound by rules of natural justice - reliance by Board on information not furnished to applicant - audi alteram partem - exercise of discretion - utility

Administrative Decisions (Judicial Review) Act 1977 s.16, sub-ss.5(1), 6(1) paras.5(1)(b), 6(1)(a)

Veterans' Entitlements Act 1986 ss.6, 7, 13, 135, 138, 151, 152, 153; sub-s.137(1); paras.137(1)(b), 138(1)(a), (b), 152(1)(a), (b), (c), 151(2)(a)

Professor S.D. Hotop, Principles of Australian Administrative Law, 6th Edition, Law Book Company Limited

Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 64 ALJR 462

Chan Woon Sheung v. Mahoney (1987) 14 FCR 100

Fares Rural Meat and Livestock Co. Pty. Ltd. v. Australian Meat and Live-stock Corporation and ors., Unreported (Federal Court of Australia, 4 May 1990)

General Medical Council v. Spackman (1943) AC 627

Haoucher v. Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 93 ALR 51

Kioa v. West [1985] HCA 81; (1985) 159 CLR 550

Moore v. Guardianship and Administration Board [1990] VicRp 80; (1990) VR 902

Twist v. The Council of the Municipality of Randwick [1976] HCA 58; (1976) 136 CLR 106

Solicitor for Peters, Marsh and Fee: Australian Government Solicitor

Solicitor for the Commission: Australian Government Solicitor

The decision of the Veterans' Review Board be set aside.

The matter be returned to the Board for further hearing.

The last-named respondent pay the applicant's costs of this application to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") for review of a decision of the Veterans' Review Board ("the Board"), upholding the decision of the Repatriation Commission ("the Commission") to refuse the applicant's claim for a pension under s.13 of the Veterans' Entitlements Act 1986 ("the Act") in respect of the war-caused death of her veteran husband.

2. The applicant's husband, Raymond Michael Courtney, died on 12 August 1987 of non-Hodgkin's lymphoma at the age of 75 years. He had rendered operational service during World War II within the meaning of s.6 of the Act and eligible war service within the meaning of s.7 of the Act. The matter remaining to be established was whether there was a reasonable hypothesis as to a relevant connection between the veteran's death and the circumstances of his war service.

3. The applicant's claim was considered by the Commission and refused.

4. On 27 June 1989 the Commission reviewed and upheld the earlier decision.

5. On 6 July 1989 the applicant applied to the Board for a review of the decision of the Commissioner pursuant to s.135 of the Act. The review was conducted on 2 February 1990.

6. Prior to the review by the Board, the applicant's representative requested the Commission to refer the applicant's file to Professor Donald Metcalf, A.O.M.D., F.R.A.C.P., F.A.A., F.R.S., Head of Cancer Research at the Walter and Eliza Hall Institute of Medical Research, Melbourne, for his opinion. That request was refused. On 29 November 1989, the applicant's representative made a request to the Board pursuant to para.152(1)(c) of the Act that the case be referred to Professor Metcalf. That request was refused on the ground that s.152 only permitted the Board to act on such a request after a hearing had been commenced. The applicant's representative repeated that request at the conclusion of the hearing before the Board. The Board advised that it would consider the request. No further report was obtained.

7. The review was conducted in an informal and non-adversarial manner. The Board informed the applicant at the outset that it "accepted" the evidence of Professor Metcalf upon which the applicant sought to rely, but in the light of its reasons the Board used the word "accepted" for the word "received".

8. At the hearing before the Board, two hypotheses were postulated for a causal link between Mr Courtney's death and his war service. First, that a service-related smoking habit was of causal significance in the veteran's development of non-Hodgkin's lymphoma. The Board dismissed this hypothesis on the basis that the veteran had an established smoking habit prior to entering into service. Secondly, it was suggested that severe recurrent systemic infections arising out of the veteran's service might have been a contributing factor in his subsequent development of non-Hodgkin's lymphoma. This second suggestion was based upon a general hypothesis formulated by Professor Metcalf. It was not a view expressed by Professor Metcalf in respect of Mr Courtney's particular circumstances of war service. Professor Metcalf first propounded his hypothesis before the Administrative Appeals Tribunal in the matter of Byrne and, in 1983, produced a set of guidelines for the application of the hypothesis.

9. By letter dated 16 March 1990, the applicant was advised that on 2 February 1990 the Board upheld the Commission's decision refusing a pension. A copy of the Board's reasons for decision was enclosed.

10. On 21 March 1990, the applicant's representative requested the Board to relist the application for further hearing on the principal ground that the evidence forming the basis of the Board's decision had not been made available to the applicant either prior to or at the hearing. The Board replied that it had no power to review its own decision and the applicant could seek further review by the Administrative Appeals Tribunal or by the Federal Court pursuant to the ADJR Act.

11. The grounds of appeal argued before me related solely to the second hypothesis. Submissions were made with respect to two principal grounds of appeal:

powers under the Veterans' Entitlements Act

1986;

2. That a breach of the rules of natural

justice occurred in connection with the making

of the decision.

12. The applicant claims that the Board improperly exercised its powers under s.151 of the Act.

13. Section 151 of the Act prescribes the powers of the Board in respect of its conduct of reviews. It relevantly provides:

"(1) The Board may -

(a) take evidence on oath or

affirmation for the purposes of a review;

or

(b) adjourn a hearing of a

review from time to time.

(2) The presiding member in relation to a

review may -

(a) summon a person to appear at

any hearing of the review to give evidence

and to produce such documents (if any) as

are referred to in the summons;

(b) require a person appearing

at a hearing of the review for the purpose

of giving evidence either to take an oath

or to make an affirmation; and

(c) administer an oath or

affirmation to a person so appearing."

14. The applicant argued that the Board, having received a request that the applicant's case be referred to Professor Metcalf, failed to take evidence from him pursuant to para.151(1)(a) of the Act.

15. Paragraph 151(1)(a) of the Act does not oblige the Board to obtain evidence when requested to do so by an applicant. It is a directory provision describing the nature of the proceedings, namely that evidence tendered to the Board may be provided on oath or affirmation presumably according to the request of the witness. (See s.151(2)(b).)

16. This was not a case of the Board refusing to hear evidence from a witness who was present at the hearing for that purpose and whom the applicant sought to call. (See Moore v. Guardianship and Administration Board [1990] VicRp 80; (1990) VR 902.)

17. The applicant further says that the Board failed to summon Professor Metcalf to appear at the hearing to give evidence pursuant to its power so to act in para.151(2)(a). The Commission submitted that it was never squarely put to the Board by the applicant that Professor Metcalf be summoned to appear before it. There was no direct request by the applicant that the Board issue a summons, however, counsel for the applicant maintained that such a request had been made on behalf of the applicant by a letter dated 29 November 1989. That letter was not placed in evidence. The reply to that letter, however, was in evidence. It is a letter of the Acting Registrar of the Board addressed to the applicant's representative and dated 8 December 1989. By that reply, the applicant's representative's request was dealt with as a request that the Board request the Secretary of the Department of Veterans' Affairs under s.152 of the Act, to obtain a report from Professor Metcalf. No issue was taken with that response and it must be concluded that the Board's attention was not drawn to any request by the applicant that a summons be issued.

18. However, the Board had power to issue a summons on its motion if it thought it necessary to do so to better inform itself and carry out its duties under the Act. But such a power of the Board to summon Professor Metcalf to appear at the hearing and to give evidence was entirely discretionary and in the absence of any evidence of circumstances which should have dictated the manner of exercise of the discretion, no reason has been put forward by the applicant as to why the failure to summon Professor Metcalf was an improper exercise of that discretion.

19. The applicant then argued that the Board had failed to arrange for the making of an investigation and report under s.152 when requested to do so by the applicant.

20. Section 152 provides as follows:

"152(1) The Board may, at any time, request the Secretary -

(a) to forward to the Board further

documents in the custody of the Secretary

relating to a review;

(b) to obtain, and forward to the Board,

further documents relating to a review; or

(c) to arrange for the making of any

investigation, or any medical examination, that

the Board thinks necessary with respect to a

review, and to forward to the Board a report of

that investigation or examination.

(2) Where a request is made under

sub-section (1), the Board shall adjourn any hearing of

the review to which the request relates and may, in

the case of a review of a decision with respect to a

pension assessment, vary that assessment pending the

completion of that review, having regard to the

records and evidence on which the Commission reached

that decision."

21. The Board's response to that request was to refuse it on the basis that such a request could be made only at the conclusion of a hearing, or at least once it had commenced. That is an interpretation of the section which is at least open to question, however, it is not a matter upon which anything turns as the request was renewed at the hearing of the matter.

22. The power of the Board to make a request for an investigation and report under para.152(1)(c) is also discretionary and there was no material before me to suggest that that discretion was exercised by the Board in an improper manner amounting to an error in law. The Commission submitted that by the time of the hearing before the Board the applicant was no longer persisting with a formal request to the Board for action under that section. There is nothing in the terms of s.152 to suggest that any action taken by the Board must be stimulated by a request from one or other of the parties appearing before it. The Board is entitled to act entirely of its own accord. In this matter, the Board decided that it would not make any request of the Secretary of the type contemplated by s.152. It may be that that decision was made erroneously, but the applicant has not gone any way toward establishing that.

23. The nub of the appeal is that the Board failed to make available to the applicant information which had been furnished by the other party to the Review pursuant to s.153 of the said Act, or that applicant was not given the opportunity to consider or rebut evidence on which the Board relied for its decision.

24. In its reasons for decision, the Board considered the Metcalf hypothesis in some detail. The reasons follow the history of the hypothesis since it was first propounded by Professor Metcalf in 1980. The Board stated in its reasons that since that time Professor Metcalf appeared to have been retreating from his original position. The Board referred to the 1986 matter of Scudamore-Smith in which Professor Metcalf wrote describing the hypothesis as "tenuous". The principal matter of concern to the applicant, however, is the Board's reference to a letter written on the subject by Professor Metcalf in November 1989 to the Department in connection with another matter, Regan, then being heard before the Board. In its reasons, the Board reproduced the major part of that letter. In it, Professor Metcalf described his further studies and experimentation concerning the hypothesis and the results of those studies leading him to form the conclusion that his original hypothesis as proposed was untenable.

"I am therefore of the opinion that there is

no reasonable hypothesis linking the malaria likely

to have been suffered by this veteran during his war

service and the subsequent development by him of

multiple myeloma."

25. The comments made by Professor Metcalf in this letter were clearly determinative of the Board's treatment of this ground of the application. The Board said at p 5 of its reasons:

"Given Dr Metcalf's latest comments there is

clearly no need to consider Mrs Courtney's case in

terms of this hypothesis further. However, had the

Board been required to decide the issue we would

have been inclined to the view that the Metcalf

hypothesis had no application to the facts of this

case based on the detailed and cogent analysis of Mr

Courtney's service related diseases provided by Dr

Bayliss in his report of 23 May 1989."

26. The applicant's complaint in this regard is that she was not provided with a copy of this letter nor advised of its contents. The applicant submitted that if the letter and other materials relating to the decisions of Regan and Scudamore-Smith were furnished by the Commission to the Board, the Board was required by s.153 of the Act to forward those documents to the applicant or to the applicant's representative.

27. Section 153 provides relevantly as follows:

"(1) Subject to sub-sections (2) and (3),

where, after the relevant documents relating to

a review have been forwarded to the Principal

Member of the Board in accordance with sub-

section 137(4) and before the commencement of

the hearing of the review, a party to the review

furnishes any information to the Board for the

purposes of the review, the Board shall make

that information available to the other party to

the review."

28. By sub-s.137(1) of the Act, the Secretary of the Department is required to prepare a report "referring to the evidence under the control of the Department that is relevant to the review" and serve a copy of that report on the applicant for the review. That report was not before the Court but it may be assumed that it did not refer to any further evidence from Professor Metcalf in that the report ante-dated Professor Metcalf's evidence in the matter of Regan.

29. The Commission submitted that the material relating to the matter of Regan was not submitted to the Board by the Commission. In the absence of any proof to the contrary I am prepared to accept, that the report of Professor Metcalf was in the possession of the Board in connection with another hearing and that the Board had reference to it of its own volition.

30. That being the case, there would be no breach of s.153 of the Act in the Board failing to make a copy of the report available to the applicant. However, the matter does not stop there and the substance of the appeal lies in the submission of the applicant that this failure to either provide a copy of the report to the applicant or to give the applicant any opportunity to make submissions or comment in relation to it, constituted a breach by the Board of the rules of natural justice.

31. It is unclear from the face of the application whether review is sought pursuant to sub-s.5(1) or sub-s.6(1) of the ADJR Act. The breach is alleged to have occurred "in connection with the making of the decision". It is not specified whether the applicant seeks specifically review of the decision or of the conduct related to the decision of the Board. I propose to treat the request for review as being made pursuant to sub-s.6(1) of the Act, and in particular para.(a). Section 6 deals specifically with conduct related to the making of decisions and as such is intimately concerned with the requirements of procedural fairness attending the making of decisions. (See Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 64 ALJR 462 per Mason C.J. at p 471.)

32. The reasons of the High Court given in the matter of Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, read with the more recent statements in such matters as Haoucher v. Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 93 ALR 51, provide the principles of law on the question of the application of the rules of natural justice or procedural fairness to the making of administrative decisions.

33. Mason J. (as he then was) in Kioa said at p 584:

"The law has now developed to a point where

it may be accepted that there is a common law duty

to act fairly, in the sense of according procedural

fairness, in the making of administrative decisions

which affect rights, interests and legitimate

expectations, subject only to the clear

manifestation of a contrary statutory intention. It

seems that as early as 1911 Lord Loreburn L.C.

understood that this was the law when he spoke of

the obligation to 'fairly listen to both sides'

being 'a duty lying upon every one who decides

anything': Board of Education v. Rice (1911) AC

179, at p 182. But the duty does not attach to

every decision of an administrative character. Many

such decisions do not affect the rights, interests

and expectations of the individual citizen in a

direct and immediate way. Thus a decision to impose

a rate or a decision to impose a general charge for

services rendered to ratepayers, each of which

indirectly affects the rights, interests or

expectations of citizens generally does not attract

this duty to act fairly. This is because the act or

decision which attracts the duty is an act or

decision:

'...which directly affects the person

(or corporation) individually and not simply as

a member of the public or a class of the

public. An executive or administrative

decision of the latter kind is truly a 'policy'

or 'political' decision and is not subject to

judicial review.'

(Salemi (No. 2) (1977) 137 CLR, at p 452.)

Where the decision in question is one for

which provision is made by statute, the application

and content of the doctrine of natural justice or

the duty to act fairly depends to a large extent on

the construction of the statute. In Mobil Oil

Australia Pty. Ltd. v. Federal Commissioner of

Taxation [1963] HCA 41; (1963) 113 CLR 475, at pp 503-504, Kitto

J. pointed out that the obligation to give a fair

opportunity to parties in controversy to correct or

contradict statements prejudicial to their view

depends on 'the particular statutory framework'.

What is appropriate in terms of natural justice

depends on the circumstances of the case and they

will include, inter alia, the nature of the inquiry,

the subject-matter, and the rules under which the

decision-maker is acting: Reg. v. Commonwealth

Conciliation and Arbitration Commission; Ex parte

Angliss Group (1969) 122 CLR 546 at pp 552-553;

National Companies and Securities Commission v. News

Corporation Ltd. [1984] HCA 29; (1984) 156 CLR 296, at pp 311,

319-321."

"When the doctrine of natural justice or the

duty to act fairly in its application to

administrative decisionmaking is so understood, the

need for a strong manifestation of contrary

statutory intention in order for it to be excluded

becomes apparent. The critical question in most

cases is not whether the principles of natural

justice apply. It is: what does the duty to act

fairly require in the circumstances of the

particular case? It will be convenient to consider

at the outset whether the statute displaces the duty

when the statute contains a specific provision to

that effect, for then it will be pointless to

inquire what the duty requires in the circumstances

of the case, unless there are circumstances not

contemplated by the statutory provision that may

give rise to a legitimate expectation. However, in

general, it will be a matter of determining what the

duty to act fairly requires in the way of procedural

fairness in the circumstances of the case."

35. The Commission submitted that such administrative decisions by the Board are not of such character as to attract the rules of natural justice. It says that this can be seen from the statutory framework of the Act pursuant to which the Board conducts its reviews.

36. The court of review must examine carefully the circumstances of the applicant, the nature of its interest affected by the administrative decision and the precise terms of the statutory provisions under which that decision was made in order to determine whether there existed a requirement to afford natural justice.

37. The review undertaken by the Board was of a decision refusing to grant the applicant a pension likely to have significant impact upon the livelihood and well-being of the applicant. There can be no doubt that the decision whether or not to grant the applicant a pension would affect her "rights, interests and expectations...in a direct and immediate way" and would not be one such as would affect her "simply as a member of the public or a class of the public". To that extent it is a decision of the type to which rules of natural justice, or procedural fairness, would normally apply.

38. The starting point when looking at the provisions of the Act is s.138 which provides, inter alia, that the Board is not to be bound by technicalities:

"(1) The Board, in conducting a review, in

hearing a review or in making a decision on a

review of a decision -

(a) is not bound by technicalities,

legal forms or rules of evidence; and

(b) shall act according to substantial justice and the

merits and all the circumstances of the case and,

without limiting the generality of the foregoing,

shall take into account any difficulties that, for any

reason, lie in the way of ascertaining the existence

of any fact, matter, cause or circumstance,..."

39. While the requirements of natural justice are, as was noted by Mason J. in Kioa, essentially procedural, I do not regard them as being excluded by para. 138(1)(a) as mere technicalities, legal forms or rules of evidence. The right to be heard and to comment on material adverse to one's case could not be said to be a mere technicality. By para.(b) the Board is required to act "according to substantial justice". Exactly what "substantial justice" imports is unclear. It is not defined in the Act and it is not a term supported by a body of common law. It is arguable that it requires at least that the standards of procedural fairness be met. Certainly it could not be said to be expressly excluding those requirements.

40. The object of s.138 is to promote efficiency and informality in the conduct of reviews by the Board. It aims to limit the expense to applicants, particularly by opening the way for lay advocates in lieu of legal representatives. This aim should be viewed in conjunction with the many provisions of the Act beneficial to applicants for reviews such as the onus of proof and deeming provisions. Such provisions do not indicate an intention to exclude the requirements of procedural fairness.

41. Section 153 of the Act provides for applicants, or their representatives, to obtain copies of any information forwarded to the Board by the Commission. Similar provision is made in respect of material furnished to the Board by a party other than the Commission in circumstances in which the Board is of the opinion that the material furnished contains information not previously considered by the Commission. Neither of these provisions, of course, affect this case in which the documents in question appear to have been referred to by the Board on its own volition. In my opinion this reflects an oversight in the Act rather than any intention to contrast the instant case with one in which material is introduced to the Board by one or other of the parties. In this case as in any other, the combined provisions of ss.138 and 153 suggest that the applicant ought to have been provided with copies of the documents and given an opportunity to comment on them.

42. To accord such an opportunity to an applicant will not frustrate the clear object of the Act to promote efficiency and informality. Such steps as are required by the principles of procedural fairness need not be excessive and will vary depending upon the circumstances of any given case; in any event, they are unlikely to be onerous. (See Haoucher per Deane J. at pp 52-53.) In the opinion of Professor S.D. Hotop, Principles of Australian Administrative Law, 6th Ed., Law Book Company Limited) the better view is that:

"adherence to the requirements of

natural justice will ultimately promote

administrative efficiency because of the greater

public satisfaction and the fewer grievances that

will result from the higher quality of decision-making

thereby produced". (at p 171)

43. Counsel for the Commission further submitted that the duty to accord procedural fairness is displaced by the availability to the applicant of an appeal on the merits by the Administrative Appeals Tribunal. He referred particularly to Twist v. The Council of the Municipality of Randwick [1976] HCA 58; (1976) 136 CLR 106. In that case, by majority, the High Court held that the terms of s.317B of the Local Government Act 1919 (New South Wales) and the availability of appeal on the merits from the decision of a local council showed that the local council was not bound to afford a hearing to the owner of a building prior to ordering its demolition. That case is one which may be distinguished from the instant case on several grounds and I do not regard it as being determinative of the question in this matter.

44. As outlined above, the provisions of the Act display the intention of the legislature that reviews be conducted by the Board efficiently and with minimum cost to applicants. Formal requirements and technicalities are few, parties are represented by lay people with a view to speedy and cheap resolution of reviews. It cannot, however, have been within the contemplation of the legislature that parties be put to the expense of instituting an appeal in the Administrative Appeals Tribunal in lieu of being accorded procedural fairness. A review by the Board is in itself a review of an earlier decision. I cannot accept that parties should be required to instigate a review by the Board merely as a necessary step prior to proceedings in the Administrative Appeals Tribunal where natural justice can finally be obtained. The aim of the Act is to avoid involving the parties in unnecessary expense; not to see them embark upon a lengthy and costly journey to the Administrative Appeals Tribunal.

45. Further, application for review of a Board's decision lies not only to the Administrative Appeals Tribunal, but also to this Court where judicial review of a decision of the Board may be sought. The availability of a right of this nature suggests that the Board is required to accord natural justice as a failure to do so is the very thing with which this Court, upon review under the ADJR Act, must concern itself. The effect of the availability of such an appeal was considered in Twist by Mason J. (as he then was) at p 114:

"Even so, at first sight it is not easy to

see why the appeal provides a clear indication of

legislative intention that the council is under no

duty to give an opportunity to the owner to present

his case. The duty which the law imposes is not

displaced by statute in the absence of express words

or by necessary implication. There is no mutual

inconsistency between the imposition of such a duty

on the council and the existence of the appeal. In

some cases the existence of an appeal to a court or

judge from an administrative decision or order may

be an indication that the administrative authority

is under a duty to hear a person who will be

adversely affected by its decision. This is because

cases which lend themselves to ultimate judicial

determination are those which require for their

satisfactory resolution a hearing or at least a

consideration of the contentions of the opposing

parties."

I find that the Board was bound to accord natural justice, or procedural fairness in its conduct of the review.

46. The applicant contends that the rules of natural justice were breached by the Board in several respects but primarily in the failure of the Board to afford the applicant an opportunity to consider and comment on matters which were considered by the Board but which were not raised at the hearing of the matter.

47. The principle of audi alteram partem is central to the concept of natural justice. It is well established that a decision-maker must afford an opportunity to be heard to a person whose interests will be adversely affected by the decision. (See Hotop at p 169.)

48. In Australian Broadcasting Tribunal v. Bond, Deane J. said at p 482:

"If a statutory tribunal is required to act

judicially, it must act rationally and reasonably.

Of its nature, a duty to act judicially (or in

accordance with the requirements of procedural

fairness or natural justice) excludes the right to

decide arbitrarily, irrationally or unreasonably.

It requires that regard be paid to material

considerations and that immaterial or irrelevant

considerations be ignored. It excludes the right to

act on preconceived prejudice or suspicion.

Arguably, it requires a minimum degree of

"proportionality" (cf. the CCSU Case, at 410). When

the process of decision- making need not be and is

not disclosed, there will be a discernible breach of

such a duty if a decision of fact is unsupported by

probative material. When the process of decision-making

is disclosed, there will be a discernible

breach of the duty if findings of fact upon which a

decision is based are unsupported by probative

material and if inferences of fact upon which such a

decision is based cannot reasonably be drawn from

such findings of fact. Breach of a duty to act

judicially constitutes an error of law which will

vitiate the decision."

49. Equally pertinent to this case are the comments of Toohey J. in Haoucher v. Minister of State for Immigration and Ethnic Affairs at p 63:

"...The deportee is entitled to expect that,

if the Minister proposes to have regard to material

that was not before him or his delegate when the

original decision was made and was not before the

Tribunal, the Minister will so inform the deportee

and give him the opportunity to be heard in regard

to that material. Whether that can be described in

terms of legitimate expectation or simply as

springing from an obligation on the part of the

Minister to accord procedural fairness, the result

is the same."

Similarly, in this case, the applicant was entitled to expect that, if the Board were to rely on and refer in its reasons for decision to the more recent documents concerning the Metcalf hypothesis, the Board would inform her and give her the opportunity to be heard in regard to that material.

50. In Moore v. Guardianship and Administration Board, Gobbo J. reached a similar conclusion in dealing with an application to review an order made by the Guardianship and Administration Board. The Board had ordered that the State Trustee be appointed as administrator of the estate of a 79 year old widow, Mrs Vera Moore. Mrs Moore, represented before the Board in person and by a personal friend, opposed any appointment but sought that if an appointment be made, the appointee be her friend, Mr Shellard.

51. Moore argued that the Board had, in reaching its decision, breached the rules of natural justice in several respects. One concerned a report on Moore's personal circumstances which had been prepared by an investigator employed by the office of the Public Advocate. At the commencement of the hearing, the Board informed the parties that the report had been received and that the parties could see it if they wished. No party availed itself of this opportunity. The report was referred to by the Board extensively throughout the hearing. It became clear that the report which consisted largely of unsupported allegations against Moore and Shellard was of minimal probative value, but was capable of having high prejudicial effect.

52. The rules of the Board specifically provided that it was bound to observe the rules of natural justice and further that it was "not bound by rules or practice as to evidence, but may inform itself in relation to any matter in such manner as it thinks fit". It may be noted that the latter words are not repeated in s.138 of the Act.

53. Gobbo J. found that the Board had breached the rules of natural justice. Even though the attention of the parties had been alerted to the report, the report was found not to have been made available to them in any "meaningful sense". The compiler of the report had not been called to give evidence.

"The report was of such possible significance

that if it was to be used at all by the board, it

should have been actually provided, desirably before

the hearing, or at least in such a way as to afford

the relevant persons a meaningful opportunity of

evaluating and responding to the report or if

thought fit objecting to the whole or parts of the

report...In my view the rules of natural justice do

not exist only for particular parties - they control

the hearing and the way the board adjudicates the

matter."

(at p 912)

54. Those comments apply equally to this case in which the applicant was not even made aware of the evidence received by the Board in the matter of Regan or that the Board would take it into account in reaching its decision.

55. The Commission sought to compare this case to that of Chan Woon Sheung v. Mahoney (1987) 14 FCR 100. In that case the applicant's witness, when interviewed by departmental officers, resiled from a prior statement in support of the applicant's assertion of a fact and there was held to be no obligation upon the Minister's delegate to allow the applicant an opportunity to comment on the changed circumstance because there was nothing else the applicant could offer. That is not this case. In this case the Board referred to, and relied upon, medical opinion received as evidence in an unrelated matter. Although on its face the evidence referred to may have appeared to be fatal to the application for review, the procedure adopted by the Board denied the applicant the opportunity to test the extent to which the opinion relied upon applied to the circumstances of her deceased husband and to produce other medical opinion, if available, in support of the hypothesis she had advanced.

56. No case could have been made by the applicant simply on the basis of a general hypothesis alone; to be successful the applicant had to raise a reasonable hypothesis of a relationship between the particular circumstances of the war service and the death of her husband. In the informal manner in which the review process was conducted by the Board, the applicant was allowed to present a general hypothesis of Professor Metcalf as pertinent evidence in her application for a pension in respect of her husband's death. Indeed, the applicant sought to have all relevant evidence of her husband's war-time service at his death presented to Professor Metcalf to obtain a direct opinion for the Professor as to whether a reasonable hypothesis of relevant connection would be adhered to by him.

57. In those circumstances, the Board's refusal to obtain such a report relevant to the particular circumstances of the deceased veteran and its reliance upon Professor Metcalf's statements in another unrelated matter carried the stamp of an unfair process.

58. Having found that the respondent Board has failed to accord the applicant procedural fairness, I come to consider what relief should be granted.

59. The applicant asks that the matter be returned to the Board for its further consideration. The Commission asks that I exercise my discretion so as to allow the decision of the Board to stand. It says there is little or no utility in the matter being returned to the Board for reconsideration as the decision which the Board will inevitably make will not, in any material respect, differ from that from which the applicant now appeals. The question was considered by Gummow J. in Fares Rural Meat and Livestock Co. Pty. Ltd. v. Australian Meat and Live-stock Corporation and ors., Unreported (Federal Court of Australia, 4 May 1990):

"What is the position if there has been a

denial of procedural fairness but this appears to

have made no difference to the result? The law

appears still to be uncertain, some decisions

appearing to proceed on the footing that in such a

case there is no ground for relief, and other

decisions proceeding on the footing that there is

jurisdiction to grant relief, but that in its

discretion the Court may refuse relief as not being

of sufficient utility; see de Smith's 'Judicial

Review of Administrative Action', 4th Edition, 1980,

pp 243-245, Allars, 'Introduction to Australian

Administrative Law', 1990, paras. 6.93-6.96.

However, when considering this question as it arises

in proceedings under the ADJR Act, it should be

borne in mind that the remedial powers of the Court

under s.16 of the ADJR Act are all couched in the

terms of discretion. This may be contrasted to the

position at general law, where some administrative

law remedies, particularly mandamus, have on

occasion been treated as attended by a fairly narrow

discretion; see The King v. Commonwealth Court of

Conciliation and Arbitration; Ex parte Ozone

Theatres (Aust.) Limited [1949] HCA 33; (1949) 78 CLR 389 at

398-399, de Smith, supra, at pp 557- 558."

(at pp 37-38)

60. The applicant relies upon the statement of Lord Wright in General Medical Council v. Spackman (1943) AC 627 at pp 644-645:

"If the principles of natural justice are

violated in respect of any decision, it is, indeed,

immaterial whether the same decision would have been

arrived at in the absence of the departure from the

essential principles of justice. The decision must

be declared to be no decision."

61. Having decided the application for review on the evidence of Professor Metcalf in the matter of Regan, the Board went on in its reasons to say that had it been required to do so it would have been inclined to find against the applicant by reason of the comments and analysis provided in a report prepared by Dr. Bayliss, the Commission's physician. However, such a professed inclination is not a finding.

62. Therefore, it is appropriate that the matter be returned to the Board for further consideration. The applicant must be given the opportunity to test the application of Professor Metcalf's most recent comments to the personal circumstances surrounding the war service and death of her husband and to produce further evidence if she wishes to do so. It is not appropriate for this Court to embark upon a consideration of the merits of the applicant's case or of the likely decision of the Board on review.

63. I will order that the decision of the Board be set aside and that the matter be referred to the Board for further consideration and re-determination. The respondent is to pay the applicant's costs of this application.