Apthorpe, R.H. v The Repatriation Commission [1987] FCA 649

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,JlJBGMENT No. 49.427.

CATCHWORDS

REPATRIATION - Appeal from a single judge - General Rate of pension - whether extent of incapacity can be determined by reference to the amount of pension appropriate to person's incapacity - difference between incapacity for purposes of General Rate and that for purposes of Intermediate and Special Rates - use of Schedules by Tribunal in ascertaining incapacity for purposes of General Rate - use of 'Guide to

Assessment of Incapacity' by Tribunal.

Repatriation Act 1920 (Cth) as amended by Act No. 90 of 1985,

s.24, Schedules 1-5. Veterans' Entitlement Act 1986 (Cth) s.29.

ROBERT HARRY APTHORPE v. THE REPATRIATION COMMISSION

No. NSW G141 of 1987

Davies, Lockhart and Gummow JJ. Sydney 25 November 1987

RECEIVED 2 SNOV 1997

FEPERAL COURT AUSTAALIAY OF

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

No. G141 of 1987

CORAM:

DATE:

PLACE:

ON APPEAL from a single judge of the Federal Court of Australia

BETWEEN: ROBERT HARRY APTHORPE Appellant AND: THE REPATRIATION COMMISSION Respondent

Davies, Lockhart and Gummow JJ.

25 November 1987

Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal be dismissed. The appellant pay the respondent's costs.

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

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G141 of 1987

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GENERAL DIVISION

ON APPEAL from a single judge of the Federal Court of Australia

BETWEEN: ROBERT HARRY APTHORPE Appellant AND: THE REPATRIATION COMMISSION

Respondent CORAM: Davies, Lockhart and Gummow JJ. DATE: 25 November 1987 PLACE: Sydney

REASONS FOR JUDGMENT

THE COURT: This is an appeal from an order of a single judge of this court dismissing an appeal from a decision of the Administrative Appeals Tribunal which had affirmed a decision of the Veterans Review Board that the appellant, Robert Harry Apthorpe, receive a pension calculated at 70% of the General Rate. The appeal from the decision of the Administrative Appeals Tribunal was an appeal raising points of law only and

this appeal is likewise limited to such points. The issues

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arose under the Repatriation Act 1920 (Cth)("the Act") as

amended by Act No. 90 of 1985. The somewhat different

provisions of the Veterans' Entitlements Act 1986 (Cth) have

no application.

In its decision, the Administrative Appeals Tribunal rejected a claim put on behalf of the appellant that he should receive either the Special Rate of pension, the Intermediate Rate or 100% of the General Rate. The notice of appeal which was before the learned trial Judge did not raise the issue of the Special Rate of pension but claimed that the appellant should receive the Intermediate Rate of pension or 100% of the General Rate. In the proceedings before the trial Judge, the

claim for the Intermediate Rate of pension was not pursued.

In the notice of appeal from his Honour's judgment, the issue as to the Special Rate of pension is again raised and an order is sought that the Special Rate of pension be granted to the appellant. Having regard, however, to the manner in which the case was presented before the trial Judge, issues as to the Intermediate Rate of pension and the Special Rate of pension cannot now be raised. Those issues were not

before the trial Judge and formed no part of his

consideration. I turn therefore to the issues respecting the

General Rate.

3.

For the purposes of this appeal, the facts may be briefly stated. The appellant, who was born on 7 December 1920, served in New Guinea with the RAAF during the Second World War. He subsequently developed osteoarthritis in both knees and this complaint has been accepted as attributable to war service, being assoc1rated with an injury suffered during war service. The appellant also developed cervical spondylosis and this condition likewise has been accepted as attributable to war service. The conditions have caused the appellant discomfort and pain, increasingly so as time went by. The appellant suffered pain if, 1n the course of his work or of his social life, he engaged in excessive activity. He had pain and discomfort 1f he stood or sat in one position for a long period of time and also some discomfort when lying in bed. He was, nevertheless, able to maintain gainful employment. He worked for 31 years for the one company, originally commencing as a design draftsman and gradually improving his position until he became chief engineer. [In 1978 the appellant suffered a myocardial infarction, a condition which has not been accepted as attributable to war service. After treatment and rest he returned to work. By 1982, when he was 61 years of age, the appellant was under strain 1n carrying out his work due in part to the pain and discomfort which he suffered as a result of moving around the company's premises and equipment and no doubt in part also because of his age and his cardiovascular state. He had

discussions with his employer with respect to retirement and

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tentatively proposed to retire at about the end of 1982. [In the middle of 1982 the appellant suffered severe angina. He was hospitalised in September 1982 and a quadruple coronary bypass operation was performed. That was a serious operation. The appellant did not return to work and retired from his employment in January 1983 at the age of 62. After his retirement, the appellant led a quiet life both because of his arthritis and spondylosis and because of his cardiovascular condition. The appellant's evidence as to his activities in his retirement was brief. In the course of it he stated that, having given up work, and because he was leading a quieter life, he had a little less pain and discomfort from his

conditions than he had had when more active.

The above recitation of facts is brief but we believe it sets out the substance of the matter. As the Court is not the judge of the facts, we have not sought to deal with detailed factual issues nor to discuss evidence given by the appellant which sought to attribute the appellant's retirement from work solely or substantially to his war attributable conditions. The Tribunal rejected that view and, having regard to the appellant's age and the seriousness of his cardiovascular condition, there is no reason to reject the

Tribunal's finding in this regard.

The Tribunal rejected the claim for the Special Rate

of pension on the basis that:-

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"Certainly it could not be said that his osteoarthritis and cervical spondylosis alone, without taking into account any other physical cause of disability, would be sufficient to render him incapable of undertaking work for more than eight hours per week."

The Tribunal rejected the claim for the Intermediate Rate on the ground that the appellant was not, by reason of his war attributable disabilities alone, prevented from undertaking the remunerative work that he had been undertaking. The Tribunal pointed to the appellant's heart condition and to his

age. Then the Tribunal turned its attention to the General

Rate of pension.

Section 24 of the Act provided that the Commonwealth was liable to pay persons in accordance with the Act. The nature and rate of those pensions were found in the Schedules

to the Act. Table B of Schedule 3 read:-

"PENSIONS PAYABLE IN THE CASE OF TOTAL INCAPACITY OF A MEMBER OF THE FORCES

General Rate wsseceeeeeeeeee The rate specified in column 3 of the Table in

Schedule 1

Special Rate ......+....e+.. The rate specified in, or assessed in accordance with, Schedule 2 in the cases to which the provisions of that Schedule are applicable."

Table C of Schedule 3 dealt with the pensions payable in the

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6. case of partial or specific incapacity and provided:-

"PENSIONS PAYABLE IN CASES OF PARTIAL OR SPECIFIC INCAPACITY OF MEMBERS OF THE FORCES

RATE OF PENSION PAYABLE

Such rate, being less than the rate or the maximum rate, as the case may be, prescribed by Table B of this Schedule, as is assessed, having regard to the nature and probable duration of the incapacity, or in accordance with Schedules 4 and 5 in the cases to which those Schedules

apply."

The reference in Table B of Schedule 3 to the General Rate for total incapacity and the provision for a lesser rate

in the case of partial incapacity in Table C take one to

Column 3 of the Table in Schedule 1 which specifies the amount

of the pension payable for "Total Incapacity".

Table C also refers to the amounts provided for

specific incapacities in Schedules 4 and 5. Schedule 4 read,

unter alia:-

"The rate of pension payable to a member of the Forces who is incapacitated by reason of a disability specified in the first column of this Schedule is a rate equal to such percentage of the General Rate of pension to which the member would be entitled under Schedule 3 if he were totally incapacitated as is set out in the second column of this Schedule opposite to the description of the disability.

Per centum

Loss of two or more LimbS ...secseesesessee 100 Loss Of both CyeS .ecvcccccveerccvesccccseee LOD Loss of one eye, together with loss

of leg, foot, hand or arm wecececsccesesee 100 Loss Of both AFMS wusceeeecccncenesansccsesese 100

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Of both Leqs .ecwecccsccccccccccveveve Of both Feet w.wceeeeccccrecccnnsvcnes Of both handS ..erceccccceccsvcccccsecee Of hand and Foot cece eessccsccccceee of all fingers and thumbs ........ee0. CY eevee cence scree c ccc cccccscececcssee ds, injuries, or disease, involving

al permanent disabling effects ........ severe facial disfigurement .......... tation of leg at hip or of right

arm at shoulder joint (if right handed), or of left arm at shoulder

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aunt (if left handed) ..cccccccccccceces 100100100 100

100 for first six

months 80 thereafter Severe facial disfigurement ..cecceneeceeee 80 Total loss of speech w.cccceccccecccsecsess 100 Loss of leg OF FOOt weeeeccececcecceeccvecse 100 for first six months 75 thereafter Loss of arm or hand ...cevecececeeceeeeeeee 100 for first six months 75 thereafter Total deafness cesses ccccseccasnesseveverace 100 Loss of vision in one C€ye weceeeececcesscee 50" Schedule 5 read, inter alia:- ")}. Where a member of the Forces is suffering from a disability described 1n Column 1 of the following table, the amount and the rate of allowance (if any) specified, in relation to that disability, in Columns 2 and 3, respectively, of the table shall, subject to this Act, be payable in addition to the pension payable under Schedule 4. Column 1 Column 2 Column 3 Description of Disability Amount Allowance $ $ per per fortnight fortnight TwO AKMS amputated .wersecsecccceeececcevees 126.90 77.30 Two legs and one arm amputated ............ 126.90 38.64 Two legs amputated above the knee ......... 126.90 38.64 Two legs amputated and loss of eye ........ 126.90 One arm and one leg amputated and One eye destroyed cecsseecnscecveccveeccce 126.90 One leg and one arm amputated .......-.-.2- 126.90

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One leg amputated above, and one leg

amputated below, the kKn@€@ .esveceesceveeeee 51.60 Two legs amputated below the knee ......... 34.80 One arm amputated and one eye destroyed ... 30.00 One leg amputated and one eye destroyed ... 30.00 One leg amputated above the knee ......---. 14.90 One leg amputated below the knee ....eeeeee 7.90 One arm amputated above the elbow ......+-- 14.90 One arm amputated below the elbow ......e.- 7.90 Loss of viSion in One eCYE cosseveesceeeeeee 11.60"

The provision for the Intermediate Rate appeared in

paragraph 6 of Schedule 1 which read:-

"6. (a)

(b)

(c)

Where -

a member of the Forces is in receipt of, or 1s eligible to receive, a general rate pension at the rate specified in column 3 of the table in this Schedule;

the members's incapacity from injury or disease that has been accepted as related to the relevant war

service of the member 1s, of itself alone, of such a>

nature as to render the member incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

the member 1s, by reason of incapacity from that injury or disease alone, prevented from continuing to undertake remunerative work that the member was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the member would not be suffering if the member were free from that incapacity, ;

the amount specified in column 3 of the table in this Schedule shall, in its application to the member, be deemed to be $242.00."

The provision for the Special Rate, referred to in Table

B of Schedule 3, appeared in Schedule 2 which read, inter alia:-

"The special rate of pension may be granted to -

(a)

(b)

a member of the Forces who has been blinded as a result of war service; and

any other member of the Forces 1f -

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(i) the other member is in receipt of, or 1s eligible to receive, a general rate pension at the rate specified in column 3 of the table in schedule 1;

(ii) the other member is totally and permanently incapacitated, that is to say, the member's incapacity from injury or disease that has been accepted as related to the member's relevant war service is of such a nature as, of itself alone, to render the member incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(iii) the other member is, by reason of incapacity from that injury or disease alone, prevented from continuing to undertake remunerative work that the member was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the member would not be suffering if the member were free of that incapacity."

We have not set out the actual amounts of pension which were applicable at the time. Mr G.K. Downes, Q.C., senior counsel for the appellant, referred to the fact that the pension payable for total incapacity in accordance with Schedule 1 was relatively low whereas the pension payable for some specific incapacities referred to 1n both Schedules 4 and 5, which were cumulative, approximated the Special Rate of pension payable in accordance with Schedule 2. Mr Downes submitted that, though the figures have altered from time to time, the general relativities have been maintained. He submitted that an inference as to the

nature of "total incapacity" in Schedule 1 should be drawn

accordingly.

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However, the Act should not be interpreted by reference to the sums of money which are set out in the various schedules. It is not part of the Court's function or of the Tribunal's function to consider whether or not the monetary sums which Parliament has provided for an incapacity are appropriate. That 1s a matter solely for the Legislature. It would be wrong to consider what sum of money by way of pension was appropriate for the appellant's incapacity and then to determine the extent of incapacity by reference thereto. The function of the Tribunal was to determine the extent of incapacity. The monetary

consequences flowed from that.

Mr Downes submitted that the General Rate was a relatively small sum and, therefore, "total incapacity" must include the incapacity of a person, such as the appellant, who, on the appellant's evidence, was considering retirement because of the pain and discomfort which he had from the arthritis in his knees and from his cervical spondylosis. Mr Downes submitted that the schedules provided for rates of pension with respect to graduated disabilities, of which "total incapacity" for the purposes of the General Rate was an incapacity of less seriousness than an incapacity which attracted the Intermediate

Rate or the Special Rate.

This submission finds some support un a decision of the Administrative Appeals Tribunal, Re McPherson and Repatriation

Commission (1985) 8 A.L.D. 484. At pp.490-491, the Tribunal said:-

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"From this paragraph [para 6 Sch 1], an inference may fairly be drawn that the Act has in mind that many persons may reach the appropriate level of 'total incapacity' prior to reaching the stage that they are 'unable to engage in remunerative occupation except on a part-time basis or intermittently'. ... But it is, I think, possible to go further. In my opinion, it is proper to draw the inference that a person who is so incapacitated from a service disability as to be 'unable to earn a living wage by reason that he 1s unable to engage in a remunerative occupation except on a part-time basis or intermittently' has 'total incapacity' for the purposes of the general rate. This is because para 6 of Sch 1 increases the quantum of the general rate otherwise specified in Sch 1 for a veteran who is totally incapacitated."

However since the amendments to the legislation made by Act No.90 of 1985, it has not been possible to draw that inference. The legislation in operation at the time of the present decision specified that an entitlement to 100% of the General Rate was a precondition to entitlement to either the Intermediate Rate or the Special Rate. Since the introduction of that provision, a veteran whose circumstances would otherwise satisfy the criteria for the grant of the Intermediate Rate or of the Special Rate may, nevertheless, fail in his claim for those rates by virtue of having an incapacity less than "total incapacity" for the

purposes of the General Rate.

Thus, it is more than ever necessary to keep in mind the differences between the concept of incapacity for the purposes of the General Rate and the concept of incapacity for the purposes

of the Intermediate Rate and of the Special Rate. These

differences were clearly explained 1n Repatriation Commission v.

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Bowman (1981) 54 F..L.R. 8, Repatriation Commission v. Moss (1982)

59 F.L.R. 226, Inglis v. Repatriation Commission (1983) 5 A.L.N.

No. 119 and Re McPherson and Repatriation Commission, cited

above. In brief, the criteria for the Intermediate Rate and for the Special Rate look to incapacity for work, that 1s to say incapacity to earn, whereas incapacity for the purposes of the General Rate is not concerned primarily with incapacity for work but looks to incapacity which takes into account the effect of the relevant disability upon the whole of the veteran's life, not only his working life, but also his social and family life. Capacity to earn is a relevant factor to be taken into account in an assessment of total or partial incapacity for the purposes of

the General Rate but it 1s not a determining factor. In

Repatriation Commission v. Moss, at p.232, Fox J. said:-

" ... my present view is that incapacity should to some extent, even if only in a general way, take account of what the physical or mental disability or disabilities mean to the capacity of the particular individual to earn and to enjoy life."

The Tribunal correctly referred to these principles.

Mr Downes' submission therefore fails for several reasons. First, it appears to depend for its factual basis upon the Tribunal''s acceptance of those statements made by the appellant in the course of his evidence that were most favourable to the appellant's case. It does not appear that the Tribunal accepted that evidence. The Tribunal gave weight not only to the

appellant's war-attributable conditions but also to his age and

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to his cardiovascular problems. Secondly, the Tribunal found that the appellant's incapacity for work did not satisfy the criteria specified for the Intermediate Rate or for the Special Rate. And thirdly, even if those criteria had been satisfied, it was nevertheless a condition for the grant of the Intermediate Rate and to Special Rate that the veteran be totally incapacitated for the purposes of the General Rate. That requirement of total incapacity could not be proved merely by establishing that, in all other respects, the appellant satisfied the criteria for the Intermediate Rate or the Special Rate, much less by establishing that the appellant was merely approaching

the stage of satisfying that criteria.

The Administrative Appeals Tribunal properly held that 1t should seek guidance as to what Parliament had in mind as to total incapacity for the purposes of the General Rate by looking at all the Schedules. The Tribunal cited the following passage

from Re McPherson and Repatriation Commission, at p.491l:-

"In my opinion all the schedules are guides to the extent of incapacity which Parliament had in mind for the general rate. A diminishment in capacity to earn 1s given particular significance in Paragraphs 3 and 6 of Schedule 1 and the provisions of Schedule 2 give special emphasis to it. Physical disability 1s given particular emphasis by the provisions of Schedule 4 and also by Schedule 5, though the latter schedule has no reference to the present case. From all the schedules an impression, albeit an imprecise one, can be gained as to what Parliament has 1n mind by total incapacity."

As was said in Re McPherson and Repatriation Commission, the

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nature of the concept "total incapacity" was not defined in the Act and does not emerge with clarity even when the

Schedules are studied. Nevertheless, 1t would be wrong and futile to attempt to delineate it by using other words. [In

applying the test, much is left to the judgment of the

decision maker.

The Tribunal gained particular assistance from Schedule 4. It is to be noted that the disabilities specified in Schedule 4 do not affect capacity for work only but are likely to affect all aspects of a veteran's life. In this respect, the concept behind Schedule 4 and behind "incapacity"

for the purposes of the General Rate 1s similar.

In Schedule 4, Parliament specified, for example, that the disability "amputation of leg at hip or right arm at shoulder joint (1f right handed) or of left arm at shoulder joint (if left handed)" will attract only 80% of the General Rate after the first six months, that the loss of a leg or foot or of an arm or hand will attract only 75% of the General Rate after the first six months and that the loss of vision in one eye will attract only 50% of the General Rate. It 1s true that, in respect of such disabilities, an additional amount was specified also in Schedule 5. However, the Tribunal was not incorrect in taking guidance from Schedule 4 as to what type of disability would entitle a veteran to 100% of the

General Rate. The fact that Schedule 5 provided an additional

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sum for certain specified disabilities assists little if at all in ascertaining the proportion of the General Rate which should be applied to disabilities. Schedule 4 related

disabilities to the General Rate.

Indeed Schedule 4 contained the item "Wounds, injuries, or disease, 1nvolving total permanent disabling effects ... 100%". Of this item, the Administrative Appeals

Tribunal said in Re McPherson and Repatriation Commission, at

p.487:~

"The term 'total incapacity', the test for 100 per cent of the general rate, is not defined unless it is a reference to the 1tem 'Wounds, injuries, or disease, involving total permanent disabling effects [emphasis added]' for which Sch 4 specifies 100 per cent of the general rate. Even so, it would not refer to the concept 'permanently and totally disabled', an expression appearing in workers' compensation legislation which was explained by a Full Court of the High Court of Australia in Wicks v Union Steamship Co of New Zealand Ltd (1933) 50 CLR

328 at 338,"

No argument was put in this appeal as to whether the item was wide enough to cover all cases of "total incapacity" not otherwise specified in Schedule 4. But whatever its ambit, it was certainly a guide as to Parliament's intent as to the nature of "total incapacity" for the purposes of the General

Rate.

Mr Downes pointed to the fact that the Tribunal, when referring to Schedule 4, specified only the first four items

and referred to the remainder of the Schedule by the words

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"and so on". He submitted that the Tribunal limited its attention to these four items which he said were exceptionally serious disabilities for which Schedule 5 made a very substantial additional provision. Had the Tribunal so limited its consideration, the Tribunal would have been in error, for it is of more significance to look to the items which : attracted less than 100% of the General Rate or for which Schedule 5 made little additional provision. However we are satisfied that the Tribunal did not so limit its

consideration. It took into account the whole of Schedule 4

and, indeed, the totality of the Schedules.

Mr Downes also attacked the Tribunal's decision on the ground that in its arriving at its decision the Tribunal did not apply Tables 1 and 5 of the Department's "Guide to Assessment of Incapacity" in arriving at its assessment of the appellant's incapacity. The Tribunal adopted the approach

taken in Re McPherson and Repatriation Commission, cited

above, and in Re Mason and Repatriation Commission, V85/115,

delivered 5 December 1985, in which the Tribunal preferred to

seek assistance from the Schedules, particularly Schedule 4.

This is not a case where there was a discretion conferred upon the Repatriation Commission or other authority inferentially conferring a power to lay down rules or principles for the application of the discretion. We pause to

note that such a power, even when exercised, would not bind

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the Administrative Appeals Tribunal. See Drake v. Minister

for Immigration and Ethnic Affairs, (1979) 24 A.L.R. 577. No

discretion was conferred upon the Repatriation Commission or upon any other body with respect to the determination of the extent of a veteran's incapacity. Under the Act, a veteran had an entitlement to have his incapacity properly determined and to receive the appropriate rate of pension having regard to the extent of that incapacity. The Tribunal was correct in turning its attention primarily to the legislation and in seeking to give effect to the intention of Parliament as expressed in the Act. Acceptance of the contrary proposition would produce the consequence that the meaning of the statute

varied from time to time with changes to administrative

guidelines.

In Minister for Immigration and Ethnic Affairs v.

Conyngham & Ors (1986) 68 A.L.R. 441 at 452-3, Sheppard J., with whom Beaumont and Burchett JJ. agreed, referred to the

danger of looking to guidelines in a case such as this. His

Honour said:-

"The danger of looking at policies or guidelines as a source of the rights of a person who claims to have been aggrieved by administrative action is pointed up by Fox J in his judgment in Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 64 ALR 466. That was a case involving the construction of s 273 of the Customs Act 1901. In particular it concerned the respondent's quota allocation. There was in force a scheme formulated for the allocation

of base tariff quotas. In this context Fox J said (at p 470):

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'The law 1s to be ascertained by reference to the enactment under which the decision is made: see Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; (1982) 42 ALR 676; Gurleven v Minister for Immigration & Ethnic Affairs unreported, Full Federal Court, 24 February 1984. In the present case, this is s 273. It does not mention quota, it deals with tariff rates and does so totally without reference to individuals or companies. The quota scheme has been created under the section, but is a long way from its language. Understandably, the validity of the scheme has not been challenged before us.

It does not seem to me that because of the lack of more specific legislation, one should try to elevate the scheme to the status of law. Private rights of action may conceivably arise out of its operation, but that is a different matter. The quota scheme may be controlled and limited in some respects, having in mind the sections of the Act under which it operates, but it 1s not, in reality or in effect, a statute, and its various provisions are not to be construed as if they were of legislative effect.

Similarly, there is no ground for elevating the guidelines here to the status of law."

On the other hand, the Tribunal was not precluded

from having regard to the Guide should there be some matter therein which would assist it in its consideration. Nor for that matter was it precluded from having regard to decisions in other cases before the Administrative Appeals Tribunal. As

Brennan J. said in Re Drake and Minister for Immigration &

Ethnic Affairs (No 2)(1979) 2 A.L.D. 634 at p.639,

"Inconsistency 1s not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice."

In "Discretionary Powers", Clarendon Press, Oxford, 1986, D.Jd.

Galligan examined, at pp.33-37, the task which a decision

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maker undertakes in finding facts and applying standards. At p.35, the author said that "... in applying a standard to the facts, the decision-maker has to settle both the meaning of the standard and the characterization of the facts in terms of that meaning". At p.33, the author said that, "The decision whether primary facts fall within the terms of a given standard is also a matter of assessment and judgment, and again open to variable conclusions." See also the discussion by Baldwin & Houghton entitled "Circular Arguments: The Status and Legitimacy of Administrative Rules", 1986 Public Law 239. For reasons of this nature, guidelines as to partial and total incapacity may be a useful aid to consistent decision making and therefore a matter to which consideration may or even should be given in an appropriate case. And with respect to guidelines issued after the coming into operation of the Veterans' Entitlements Act 1986, that Act by s.29 has so

provided.

However, in the present case, we would not conclude that the Tribunal totally disregarded the Guide or, for that matter, the evidence as to percentages that Dr J.R. Higginbotham and Dr A. Stockler had given to it. [In our opinion, the Tribunal merely indicated that the nature of the concept "Total Incapacity" was to be gleaned from the Act and the Schedules, not the Guide. In that view, the Tribunal was

correct. Mr Downes was not able to point to any particular

aspect of the Guide that would have assisted the Tribunal in

20.

its deliberations or which 1t ought to have discussed in its reasons for decision. Mr Downes conceded that the basic

structure of the Guide, as set out in Table 1, was flawed un the light of decisions of this Court, including Repatriation

Commission v. Bowman, cited above, and Repatriation Commission

v. Moss, cited above. We are not satisfied that there was any

relevant matter in the Guide which the Tribunal should have

taken into account but did not.

Mr Downes further submitted that the Tribunal did not consider the nature and duration of the appellant's incapacity or take into account the effect of the disability upon his earning capacity. But plainly it did so and I need say no more as to that. Mr Downes submitted that the Tribunal turned its attention only to partial incapacity and failed to consider total incapacity. However, the Tribunal did turn its attention to the nature of total incapacity. It was for that

reason that it examined the Schedules.

After considering the Schedules, particularly Schedule 4, the Tribunal concluded that the appellant's disabilities were nowhere near as serious as the disabilities specified in Schedule 4 that attracted 100% of the General Rate. The Tribunal concluded that the assessment of 70% was a generous one and should not be increased. The trial Judge correctly concluded that this assessment was open to the

Tribunal and that no ground was established for overruling the

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Tribunal's finding.

In considering the Tribunal's finding on the level of the appellant's incapacity, it 1s necessary to keep in mind that the Tribunal was the judge of the facts and that its decision 1s not to be set aside unless it is shown that the Tribunal failed to take into account some relevant matter or took into account an irrelevant matter or misconceived the legislation or that the facts before it could not support the finding that was made, that is to say, that the finding was

perverse or unreasonable.

As Deane J. said in Sean Investments Pty Ltd v. MacKellar (1981) 38 A.L.R. 363 at 375 in relation to the

exercise of an administrative discretion:-

" ..- I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane L JJ) in Elliott v. Southwark London Borough Council [1976] 2 All ER 781; [1976] 1 WLR 499 at 507, 1n relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case: 'It is clear that the matters which the local authority should consider ... vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, 1s not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.'

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed

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before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

See also Minister for Aboriginal Affairs v. Peko-Wallsend Ltd

(1986) 66 A.L.R. 299 at 308, per Mason J. with whom Gibbs C.J.

and Dawson J. agreed.

Likewise, in Puhlhofer v. Hillingdon London Borough

Council [1986] 1 A.C. 484 at 518, Lord Brightman with whom the

other members of the House agreed, said:-

"Where the existence or non-existence of a fact 1s left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

A finding as to total or partial incapacity, and if the latter the percentage of the incapacity, is just such a finding as his Lordship had in mind. It is not a discretionary finding, but nevertheless involves the weighing up of a large range of factors and the making of a value judgment or assessment in the light of the broad test which Parliament prescribed. The making of that judgment or

assessment is one for the Tribunal, not for the Court in an

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appeal limited to issues of law. The issues in the present case essentially are concerned with whether, in applying to the facts the test prescribed by the Parliament in the broad

language used by 1t, an error of law occurred. There was no

such error.

In our opinion, all grounds of attack made against

his Honour's judgment and against the decision of the

Administrative Appeals Tribunal fail.

The appeal should be dismissed with costs.

I certify that this and the a2 preceding pages are a true copy of

the Reasons for Judgment herein of

the Court. .

Jane G-2ddo-

Associate:

Date: 25 November 1987 Counsel for the appellant: Mr G.K. Downes, Q.C. with Mr G. Miller Solicitors for the appellant: Legal Aid Commission of N.S.W. Counsel for the respondent: Mrs P. Flemming, Q.C.

with Mr J.S. Hilton

Solicitors for the respondent: Australian Government Solicitor

Date of hearing: 15 October 1987

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