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Fraser v Chief of Airforce [2006] FMCA 499 (10 April 2006)

Last Updated: 12 April 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Lynch v General Dental Council [2004] 1 All ER 1159 R v Secretary of State for the Environment; Ex parte Powis [1981] 1 WLR 584 Defence Force Retirement and Death Benefit Authority v Britt  [1985] VicRp 11 ; (1984) 4 FCR 306 Catton v Chief of Army [2003] FMCA 275

REPRESENTATION

ORDERS

(1)	The application be dismissed.

BRG80 of 2005

Applicant

And

Respondent

REASONS FOR JUDGMENT

1.	This is an application for an order of review pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act").
2.	The applicant seeks relief in respect of a decision of the respondent made under s.37 of the Defence Force Retirement and Death Benefits Act 1973 ("the DFRDB Act") on 24 January, 2005. By the decision the respondent determined that "at the time of his discharge, grounds did not exist whereby ex-LAC Ronald McKinnon Fraser A228246 ENGFITT2 could have been discharged because of a physical or mental incapacity to perform his duties".
3.	By his application filed on 22 February, 2005, the applicant seeks the following orders:

1. That grounds existed at the time of the Applicant’s retirement that he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties and that he may for the purposes of the Defence Force Retirement and Death Benefits Act 1973 Section 37 be treated as if he had been retired on that ground.
2. Any other Order this honourable Court deems meet.

4.	By his Contentions of Law and Fact filed on 14 November, 2005, the applicant abandoned that relief and sought an order of review to set aside the relevant decision and to remit the matter to the respondent for further consideration and for determination according to law.
5.	The grounds upon which he seeks relief are specified in the application as follows:

Following are the bases on which the Orders are sought under the Administrative Decisions (Judicial Review) Act 1977, Section 5:
1. that a breach of the rules of natural justice occurred in connection with the making of the decision;
2. that procedures that were required by law to be observed in connection with the making of the decision were not observed;
3. that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
4. that the decision involved an error of law, whether or not the error appears on the record of the decision;
5. that there was no evidence or other material to justify the making of the decision;
6. that the decision was otherwise contrary to law.

6.	By further and better particulars filed on 11 April, 2005, the applicant expounded the grounds upon which he sought review as follows:

2. The Applicant provides the following further and better particulars as to how the decision involved an error of law, namely that:
(a) a breach of the rules of natural justice occurred in connection with the making of the decision.
Particulars
The Respondent did not fairly balance the interests of the Applicant with those of the Respondent by hearing and listening to, investigating or properly take into account the submissions of the Applicant in mid 2003 and the 15 March 2004 (being the dates of submissions upon which the decision was made) particularly the Applicant’s repeated submissions that there is a deficiency or lack of significant documentation on his service medical files concerning the diagnosis, treatment and management of his medical conditions during his service that one would have expected to be included in relation to the Applicant’ s medical conditions, especially the surgery for his melanoma and the chemotherapy he received. This has resulted in an incomplete assessment of his correct employment standard rating at time of discharge.
(b) procedures that were required by law to be observed in connection with the making of the decision were not observed.
Particulars
In determining whether at the time the Applicant 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, the Respondent did not fully or appropriately consider whether, in view of the medical complexity of the factual questions and the potential for detriment to the Applicant’s livelihood to be damaged by the decision, natural justice would only be satisfied if an oral hearing was conducted.
(c) the making of the decision was an improper exercise of the power conferred by the the (sic) DFRDB Act, including:
(i) taking an irrelevant consideration into account in the exercise of a power.
(ii) failing to take a relevant consideration into account in the exercise of a power.
(iii) exercising a power that is so unreasonable that no reasonable person could have so exercised the power.
Particulars
• The Respondent in making his decision, failed to take into account as a relevant consideration the incompleteness of the medical records of the Applicant at the time of discharge. The decision was based, wholly or in part, on the available medical records which were incomplete, incorrect, misleading or out of date (or a combination of these) at the time of discharge.
• In reaching his decision, the Respondent failed to take into account the relevant post-discharge expert and specialist medical opinions submitted by the Applicant and that, in consequence, no sound foundation existed upon which the Respondent could rely in making the decision under review.
• The Respondent took into consideration in making the decision the Defence position brief (as prepared by MAJ Tattersall) comprising an executive summary, recommendation and selected voluminous attachments for the consideration of the Respondent in reaching his decision. MAJ Tattersall’s position brief included a mixture of irrelevant facts, opinions and conclusions based on incomplete or erroneous bases. The Respondent in making his decision took into account those irrelevant considerations.
• The Respondent’s exercising of his power to make the decision in the absence of any hearing, inquiry or investigation of the deficiency or lack of significant documentation on his service medical files concerning the diagnosis, treatment and management of his medical conditions during his service, was so unreasonable that no reasonable person could have so exercised the power.
(d) that the decision involved an error of law, whether or not the error appears on the record of the decision.
Particulars
The Respondent did not decide whether grounds existed, at the time of discharge, whereby the Applicant would have been discharged on the ground of invalidity as required by section 37 of the DFRDB Act. On the record, he made is (sic) decision only in consideration of the grounds of physical or mental incapacity to perform his duties.
(e) there was no evidence or other material to justify the making of the decision
Particulars
The deficiency or lack of significant documentation on his service medical files concerning the diagnosis, treatment and management of his medical conditions during his service that one would have expected to be included in relation to the Applicant’s medical conditions, especially the surgery for his melanoma and the chemotherapy he received, did not justify the making of the decision.
3. The Applicant provides the following further and better particulars as to how the decision was otherwise contrary to law.
Particulars
The Respondent did not apply the correct test in making his decision. The record of the decision indicates that he was not persuaded that, at the time of his discharge from the RAAF, the Applicant was medically unfit for further RAAF service. This "medically unfit" test is the incorrect test for a decision maker exercising power under section 37 of the DFRDB Act.

7.	At the commencement of the hearing, the applicant sought leave to adduce evidence in the form of affidavits from various witnesses, including the applicant and his wife. The affidavits he wished to rely upon are as follows:

a) Ian Canham filed 26 May 2005;
b) Ian Walker filed 26 May 2005;
c) W.H. McCarthy filed 26 May 2005;
d) Christine Fraser filed 26 May 2005;
e) Ron Fraser filed 26 May 2005;
f) Suzanne Manson filed 26 May 2005;
g) Robert Kable filed 26 May 2005;
h) Thomas Potter filed 30 September 2005;
i) G.A. Norman filed 30 September 2005;
j) K.D. Corcoran filed 30 September 2005;
k) Ken Leigh sworn 27 November, 2005 to be filed by leave.

8.

The first basis upon which it is said that I should receive the above affidavits is that they (or parts of them) show what material was before the decision maker when he made his decision[1]. The material before the respondent for the purposes of making the impugned decision is clear, however. He was provided with a large volume of material described as "Defence Position Brief". No doubt arises as to what was before the respondent when he made his decision.

9.

The second basis upon which it is said that I should receive the above affidavits is that they (or parts of them) will explain to the court matters which I need to understand in order to reach a just conclusion. That submission is based upon the following passage from a judgment of Collins J in Lynch v General Dental Council [2004] 1 All ER 1159 at 1168 to the following effect:

25. This is, I appreciate, some extension beyond that recognised by Powis of the possibility of admitting fresh evidence. But its purpose is in reality to explain to the court matters which it needs to understand in order to reach a just conclusion. It is difficult to see why, where such need is established, that should not in principle be permitted.

10.

In Lynch (above) the applicant for review was a dentist who sought entry onto the list of specialists maintained by the respondent as a specialist orthodontist. His application was refused at first instance and then again on appeal. An application to set aside the appeal decision and have another hearing of the appeal also failed. An application for review was pursued in the Queen's Bench Division, Administrative Court. In that application, the applicant sought to rely upon expert evidence from other orthodontists to prove a claim that the decision of the respondent was irrational and wrong.

11.

Taken in isolation the above passage referred to by the applicant may appear to support his claim to have the affidavits admitted, but when read in context, the exception of which Collins J was speaking becomes more sharply defined. After referring to the well known passage from R v Secretary of State for the Environment; Ex parte Powis (above) at 595 and the categories of case in which it would be appropriate to receive evidence on a judicial review application, his Lordship said:

21. Mr Garnham submitted that these categories were exhaustive and that no part of the evidence which Mr. Havers sought to rely on fell within any of them. He drew my attention to a number of cases in which attempts to rely on fresh evidence had failed and reliance had been placed on the Powis guidelines.
22. I have no doubt that fresh evidence involving expert evidence should in general not be admitted unless it falls within the Powis guidelines. However, it is and has always been recognised that irrationality is an error of law which can lead to a decision being quashed. If the decision in question is made by an expert tribunal or indeed by anyone dealing in a field involving consideration of matters which would not obviously be fully understood by a layman without some assistance from an expert in that field, it may be necessary at the very least to have some explanation of any technical terms. Mr. Garnham accepted that expert evidence could be adduced to provide such explanations. Without it, the Court might well be unable to consider properly any irrationality argument. When I use the word 'irrationality' I am intending to include not only perversity but also a failure to have regard to a material matter or a taking into account of an immaterial matter.
23. Mr. Havers submitted that, particularly in a case such as this, it was necessary that the Court should understand not only the meaning of the technical terms but also their significance. The nature of the treatments which the claimant had carried out could no doubt be explained, but the Court would be unable to judge whether the decision was irrational without appreciating their significance. Unless the claimant was able, for example, to show that they were the sorts of treatments which only a specialist would be expected to carry out, he could not establish his claim and this was manifestly unfair.
24. It is clear that the Court's function must not be usurped. But it seems to me that the Court must be enabled to carry out its function. To do this it must understand the material which is put before it. There is in my view a real distinction between a report from an expert which seeks to explain what is involved in a particular process (in this case, treatment) and how complicated that process is and one which goes on to opine that it was irrational for the body to have reached the conclusion it did. I recognise that in this jurisdiction the obtaining by a defendant of a report which disagrees with the views of the claimant's expert may neutralise those views since the Court cannot and will not decide the issue of fact. However, it seems to me that in a truly technical field, where the significance of a particular process is in issue expert evidence can be admitted to explain the process and its significance. Cases where this can be permitted will be very rare and what I have said should not be regarded as opening the door to the admissibility of experts' reports in all cases such as this which involve judicial review of an expert tribunal or body. Equally, the court must be careful to recognise and to apply the distinction to which I have referred, albeit in some instances it may be somewhat difficult to see where the line should be drawn.
25. This is, I appreciate, some extension beyond that recognised by Powis of the possibility of admitting fresh evidence. But its purpose is in reality to explain to the court matters which it needs to understand in order to reach a just conclusion. It is difficult to see why, where such need is established, that should not in principle be permitted. But a word of caution is appropriate. Where the tribunal or body is itself composed of experts or has been advised by an expert assessor (which can happen in appeals in cases such as the present), it will be virtually impossible to justify the submission of expert evidence which goes beyond explanation of technical terms since it will almost inevitably involve an attempt to challenge the factual conclusions and judgment of an expert. That is something which is inappropriate for a reviewing court. (my emphasis)

12.	In my view, the evidence sought to be adduced by the applicant does not fall into the category of evidence referred to by Collins J Lynch (above). Only some of it is expert evidence, and in my view all of it proceeds well beyond providing explanation and elucidation of technical terms referred to in the material before the decision maker.
13.	The third basis upon which it is said that I should receive the above affidavits is that the evidence is directed to establishing that on the true facts of the case, regardless of the material that was actually before the decision maker, the decision was not one that could have been lawfully made. In this regard, the only evidence specifically pointed to is the evidence of Dr. GD Norman at paragraph 11 and annexure GDN01 to his affidavit.
14.	The assertion that the decision was one that could not lawfully be made was not developed in submissions. I have had regard to the affidavit of Dr Norman and his report. I do not understand the assertion that the decision in this case was unlawful. In any event, for reasons that I will explain below, the purport of Dr Norman's evidence is not to the point.

Background

15.	The applicant is 58 years of age. He served with the RAAF from June 1973 to June 1979. He was discharged upon the termination of his period of enlistment. He voluntarily retired from service.
16.	The applicant suffered from a number of injuries and diseases during his service. He had a degenerate lower spine. He was diagnosed with melanoma in 1976. He was treated surgically for that in 1976. It recurred in 1977 and he had more radical surgery that left him with a functional impairment in his right arm.
17.	At the date of his discharge he was still undergoing chemotherapy as part of the melanoma treatment.
18.	Since discharge, the applicant has sought that there be a determination under s.37 of the DFRDB Act on three separate occasions. Each was not successful. This application to review relates to the most recent of those applications.

The law

19.

Section 26 of the DFRDB Act provides for the payment of invalidity benefits to certain persons[2] retired from the defence force on the ground of invalidity or of physical or mental incapacity to perform his or her duties. Section 37 of the DFRDB Act provides that the DFRDB Authority[3] may authorise the payment of invalidity benefits to other persons not otherwise within the purview of s.26 of the DFRDB Act. Section 37 is in the following terms:

37 Service Chief may inform authority of grounds of retirement
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 Navy, the Chief of Army or the Chief of Air Force or a person authorized in writing by the Chief of Navy, the Chief of Army or the Chief of Air Force, 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.

20.	Section 37 reposes in the Chief of the relevant arm of the defence forces, a power to determine and inform the DFRDB Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity: Defence Force Retirement and Death Benefit Authority v Britt  [1985] VicRp 11 ; (1984) 4 FCR 306 at 309.
21.	Section 37 authorises the relevant decision to be made with "hindsight". That proposition was put by the applicant and accepted by the respondent. In Catton v Chief of Army [2003] FMCA 275 Baumann FM said:

It is acknowledged that s.37 was designed to make decisions with hindsight, and can it seems be activated, at any time when evidence is available to seek a determination that grounds existed on which the retired contributing member could have been retired for invalidity or on other incapacity to perform his duties.

22.

Both parties pointed me to this statement and urged that I should follow it. I see no reason not to do so.

23.

The Court's task under the AD(JR) Act is not to sit on appeal from the decisions of the respondent. Rather, the task is to ensure that the process by which the decision has been made cannot be impugned for any of the reasons set out in the AD(JR) Act. The court cannot, and should not, substitute its own view of the facts, or its own decision on the merits of the original application, even if I was of the view that the original decision was wrong on the merits[4].

Discussion

24.	The applicant's contentions of law and fact filed on 14 November, 2005 do not neatly dovetail with the grounds relied upon by him, or the particulars of those grounds that I have set out above.
25.	His first contention is that the respondent did not give appropriate or sufficient consideration to information available at the time of the decision. Instead, it is said, the respondent and his reasons refer only to service history and medical records available at the time of discharge by retirement in 1979.
26.	In my view, however that contention cannot be made out because:

a) the Defence Position Brief referred to by the respondent contained evidence other than service history and medical records available at the time of discharge by retirement in 1979;
b) the Defence Position Brief contains details of the applicant's contentions and the medical evidence and service evidence upon which he relied upon; and
c) the record of the decision expressly asserts that reference had been made to that material and that the respondent had taken into account the new evidence provided by the applicant. No challenge was made to that assertion.

27.	One only needs to have regard to the particulars of the first ground of review relied upon by the applicant to understand that what he is seeking is a merits review of the decision. To assert that the respondent did not "fairly balance the interests of the Applicant with those of the Respondent by hearing and listening to, investigating or properly take into account the submissions of the Applicant in mid 2003 and the 15 March 2004... particularly the Applicant’s repeated submissions that there is a deficiency or lack of significant documentation on his service medical files" is to assert no more than that the respondent failed to accord to his submissions the weight that the applicant thought they deserved. In my view this ground must fail.
28.	The second contention and the fourth and sixth particularised grounds of review advanced by the applicant is that the respondent did not ask himself the correct question. Rather than determining whether grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, first it was asserted that the respondent in fact considered whether the applicant was medically unfit for further RAAF service – a test different to that required by s.37 of the DFRDB Act. Secondly, it was argued that the respondent did not consider or answer whether grounds existed on which he could have been retired on the ground of invalidity.
29.	The respondent's decision comprised nine paragraphs that appear to be a short form of reasons. The first and last paragraphs are in the following terms:

Being the officer holding the appointment of Chief of Air Force, exercising my authority under the DFRDB Act 1973 section 37, and on the evidence presented to me, I hereby determine that at the time of his discharge, grounds did not exist whereby ex-LAC Ronald McKinnon Fraser A228246 ENGFJTT2 could have been discharged because of a physical or mental incapacity to perform his duties.
...
Taking these matters into consideration I am not persuaded that, at the time of his discharge from the RAAF, Mr Fraser was medically unfit for further RAAF service. He chose to leave the RAAF and if he had not done so there is no reason why he could not have continued in RAAF employment.

30.	It will be immediately noticed that neither paragraph refers to the question of invalidity. The applicant submits that that omission is fatal to the decision.
31.	Invalidity is not defined in the DFRDB Act. It is often, but not always accompanied by the phrase physical or mental incapacity or simply incapacity [5]. The use of two different expressions might at first glance indicate that two mutually distinct possibilities are contemplated by the legalisation. Thus, a failure to consider one of the distinct possibilities would result in an incomplete exercise of the power set out in s. 37 of the DFRDB Act.
32.	It is instructive to have regard to the definition of invalidity and invalid. The Macquarie, Australia’s National Dictionary, Revised Third Edition provides the following definitions:

invalid 1. an infirm or sickly person 2. a member of the armed forces disabled for active service – adjective 3. deficient in health; weak; sick: his invalid sister. 4. of or for invalids: invalid diets. – verb (t) 5. to affect with disease; make an invalid: invalided for life. 6. to class, or remove from active service, as an invalid – verb (i) 7. to become an invalid. 8. (of a member of the armed forces) to retire from active service because of illness or injury: [L invalidus infirm, not strong]

invalid 1. not valid; of no force, weight or cogency; weak: invalid arguments. 2. without legal force, or void, as a contract.
invalidity lack of validity.

33.	The Oxford English Dictionary, Second Edition provides the following definitions:

invalid
⁺1. Of no power or strength; weak, feeble. Obs.
2. Of no force, efficacy, or cogency; esp. without legal force, void.
invalid
adj. Infirm from sickness or disease; enfeeble or disabled by illness or injury. Now only as attrib. use of the sb.
sb. 1. An infirm or sickly person.
b. transf. and fig. Anything damaged, dilapidated, or worse for wear.
2. A soldier or sailor disabled by illness or injury for active service; formerly often employed on garrison duty, or as a reserve force.
b. Invalides, the Hotel des Invalides, a hospital or home for old and disabled soldiers in Paris.
3. attrib. a. (See A.) b. Of or for invalids.
invalid To render invalid; to invalidate.
invalid
trans. To affect with disease or sickness; to make an invalid; to ‘lay up’ or disable by illness or injury. (Chiefly in passive.)
To enter on the sick-list, to treat as an invalid; to report (a soldier or sailor) as unfit for active service; to remove or discharge from active service on account of illness or injury.
intr. To become an invalid or unfit for active work through illness; of a soldier or a sailor: To go on the sick-list; to leave the service on account of illness or injury.
invalidity
[Related to _INVALID a.¹] The quality of being invalid; want of force or cogency; esp. want of legal validity.
Want of strength or efficacy; weakness, incapacity. Obs.
a. [Related to _INVALID a.²] Want of bodily strength or health; condition of being an invalid; bodily infirmity.

34.	The respondent points me to Catton and in particular paragraph 32 and 33 where Baumann FM said:

32. The Applicant says that on the face of the decision the test applied by Evans was whether the evidence available at the time of discharge satisfied the s.37 invalidity or incapacity requirement.
33. If that was the test applied it could be wrong. The proper test is whether, on the totality of the evidence available at the time of the decision, the Applicant at the time of discharge was incapacitated in relation to the performance of his duties to the extent that discharge on medical grounds could have been warranted.(emphasis mine)

35.	The respondent also referred me to the remarks of Mansfield J in Rana at paras.41 and 46. The form of the decision in Rana is identical to that in this matter. No mention of invalidity is made in the operative words of the decision under consideration in Rana. In that respect, Mansfield J said:

46 The delegate has correctly identified the question which he was required to address in the first and third paragraph of his reasons for decision. He addressed the medical evidence, in particular that of Dr Hoff, to see whether it could support the claim that Mr Rana was unfit to perform his duties by reason of his condition. He carefully assessed the service history report. He indicated an awareness of difficulties Mr Rana had during his Army service. Although the penultimate sentence of his decision might suggest that the delegate was looking to whether in fact Mr Rana could have been discharged because of incapacity (rather than whether grounds existed on which he might have been so discharged), I do not think a proper reading of the decision overall, including that sentence, indicates that he made such an error. It is a conclusion in the light of the evidence to the effect that there is no sound basis for thinking that grounds existed upon which Mr Rana could have been discharged because of incapacity to perform his duties. In context, it reflects a consideration directed to the question which the delegate has elsewhere correctly identified and addressed. I note that, at one point, the delegate refers to the view that Mr Rana may have suffered from an aggravation of a psychiatric condition as a result of his Army service, but not to the extent to warrant discharge. That does not indicate that the delegate erred by addressing work caused by aggravation only. It indicates simply that the delegate was aware of Mr Rana’s medical condition at the time of his discharge, and leading up to it, but did not think that particular evidence could demonstrate incapacity to perform his duties. It was but a step in the delegate’s process of reasoning.

36.	In my view, although it is perhaps possible for the word invalidity to extend into different areas than the phrase physical or mental incapacity, in the context of s.37 of the DFRDB Act neither adds anything to the meaning of the other. Both are concerned with the same concept: namely, inability to serve or unfitness for duty. Thus, although the words of the decision do not use invalidity, that does not indicate a failure on the part of the respondent to properly carry out the function entrusted to him by s.37 of the DFRDB Act.
37.	Allied to that contention is the applicant's contention that three of the medical opinions to which the respondent had regard, themselves addressed the wrong test. They were addressed to the question of the applicant's unfitness for duty. In my view, however, this contention has no substance. The medical experts were answering issues put to them for their opinion and within their expertise. The determination of the matter raised for consideration by s.37 was one for the respondent, assisted by the evidence. That the evidence he relied upon did not address the terms of the section is not to the point. To address the evidence to the terms of the section was the task of the respondent and the respondent alone.
38.	The applicant's fourth contention is that at the time of his discharge, no prognosis (favourable or otherwise) could have been made about his condition because he was undergoing continuing chemotherapy for skin cancer. The applicant had a long history of treatment for melanoma. He was treated at the Sydney Melanoma Clinic and there was material before the respondent to that effect. It was considered by the respondent. All of the evidence pointed to by the applicant in his Contentions of Law and Fact filed on 14 November, 2005 was before the respondent. Although much of that material was not referred to directly by the respondent, there is no evidence that it was not taken into account. Indeed, the respondent expressly asserts that he read the relevant material.
39.	The third and fifth particularised grounds of review have a number of facets, but they overlap with the fourth contention discussed above. In my opinion there is nothing in the applicant's complaints. The evidence before the respondent included all the material that the applicant placed before the respondent to demonstrate the incompleteness of his medical and service file. There could have been no doubt that his files were incomplete at the date of his retirement. That was made plain by applicant. There is nothing to suggest that it was not taken into account. Again, the applicant is simply seeking to review the merits of the respondent's decision.
40.	The applicant's fifth contention asserts that there was an error in the employment standard listed in the applicant's medical records at the date of discharge and the decision maker knew or ought to have known of the error. I must confess that I do not understand the contention. The applicant made it clear in his statement to the respondent supplied by his solicitors in July, 2003 that his employment standard was wrong. He provided an outpatient note to that effect dated October, 1976. Doubts about the correctness of the employment standard are raised in other medical material that was given to the respondent[6].
41.	The failure of the respondent (if there was one) to be discharged with the correct employment standard was not to the point. The applicant's contentions in that regard were before the respondent. His task, however, was to be carried out with the benefit of all subsequent evidence that had come to light. He was not bound by the employment standard at the time of discharge and there is no indication in the decision that he considered himself to be so bound. The contention seeks to agitate the merits of the decision under review.
42.	The remaining contentions, six, seven and eight, all seek to re-agitate issues going to the merits of the decision under review. In my view, none demonstrates reviewable error on the part of the respondent.
43.	Finally, it is contended that the applicant ought to have been afforded an oral hearing due to the complexities of the matter. Section 37 provides no entitlement to an oral hearing. An oral hearing was not requested. No benefit, of which the applicant has been deprived by there being no oral hearing, has been illuminated by the argument.

Conclusions

44.	For the foregoing reasons, I am of the opinion that no basis has been shown for making the orders sought by the applicant. The application must be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: S. Haysom

Date: 10 April 2006

^[1] See R v Secretary of State for the Environment; Ex parte Powis [1981] 1 WLR 584 at 595 - 596
^[2] "contributing members": s. 26 of the DFRDB Act
^[3] established pursuant to s. 8(1) of the DFRDB Act
^[4] see for example Sean Investment Pty Ltd v MacKellar (1981) 38 ALR 363
^[5] see s.37 itself and ss.26 and 27 by way of example.
^[6] See for example reports of Dr. Stephenson 22 December, 1998 and 19 October, 1999; Dr Miller's report of 7 February, 2002