McGECHAN J. This is an application by the Secretary for War Pensions for judicial review of a decision of the First Defendant War Pensions Appeal Board ("Appeal Board"). The late Mr Norman Auld (the "Claimant") served with teh New Zealand Army in the Middle East and Italy between 1941 and 1945. While on service he began to smoke, and continued to do so for teh remainder of his life. In the result, and many years sfter the War, he contracted emphysema and was consequently disabled. A question arises whether, in terms of s.19(1)(b) and associated provisions of the War Pensions Act 1954 ("the Act"), such disablement is "attributable to his service", so entitling him to a War Pension. The War Pensions Board said not. The War Pensions Appeal Board ("the Appeal Board"), in a decision dated 24 October 1989 and now reported (1990) NZAR 40, ruled in favour of entitlement, awarding a pension (to the Second Defendant, his widow) at 70% of total. This application for review, filed 24 May 1991, followed.

Certain points must be recorded at outset.

This is merely an application for judicial review under the Judicature Amendment Act (No 2) 1972. It looks at regularity of process, and whether the decision can be stigmatized as irrational. It is not a general appeal which re-examines the merits, substituting the Court's decision for that of the Appeal Board.

On the face of the proceedings, the Plaintiff seeks both a declaration the decision of the Appeal Board was "unlawful and invalid", and setting aside of the Appeal Board's decision. I was informed by counsel for the Plaintiff at outset of hearing that:

I immediately felt and expressed some concern in the light of decision to continue to pay to the widow, that the issue had become largely hypothetical. The Court is not an advisory body to determine hypotheticals. However, in the end I have thought it best in the public interest to continue. I would not want this or other pensions to be terminated merely to enable the issue to be tested.

The First Defendant Appeal Board very properly filed notice abiding decision. It did not file a statement of defence. That perhaps is regrettable, as in the absence of affidavits on either side the absence of pleading left factual matters open. However, very shortly before hearing a Record was filed. There was no prior direction to that effect, and impromtu filing in this fashion is not to be encouraged. However, it at least filled the evidential gap in relation to the Appeal Board, and as advised to counsel before hearing I have chosen to accept the Record as evidence of its factual content, largely if not entirely curing any factual uncertainties. This somewhat benevolent approach should not be taken as a precedent.

I feel obliged to record there was no transcript taken of oral evidence apparently given before the Appeal Board. The Chairman, I am informed, took a personal note, but that did not come before me. I must simply proceed on what I have.

The pension entitlement turns upon s.19(1), read with sections 17(3) and 18 War Pensions Act 1954. The Appeal Board appears to have operated on the basis of those provisions as they stood prior to the amendment by the War Pensions Amendment Act 1988, in force 1 April 1989. There may be room for some doubt in that regard, given the existence of "substituted enactment" within s.20(g) Acts Interpretation Act 1924 and inferences possibly open from s.15 of the Amendment Act relating to Pension Board proceedings. I will leave the point open, as it is not presently material. The principal change made by the 1988 amendment was merely to substitute the Secretary for the War Pensions Board. Vital phrases were re-enacted intact. Like the Appeal Board, I will proceed on the basis of the unamended legislation.

The provisions concerned are as follows (there are no statutory definitions of "attributable", "conditions", or "disablement"):

The Claimant was born 3 November 1918. When War broke out in 1939 he was a labourer. He took an Army medical on 6 July 1940, including a chest X-ray, and was cleared as first grade. He enlisted in August 1940. As an incidental, on 21 November 1940 he married. After no doubt the usual military training, he left New Zealand for the Middle East as a member of 2 NZEF on 7 April 1941. He held the rank of Private, a rank which he retained for the duration. He saw service in the desert in the Middle East, and later in Italy, with 22 Battalion. He was wounded, in a presently immaterial manner, on 4 November 1942. He had no other significant casualty or medical history while overseas. He returned to New Zealand on 21 April 1945, a little more than 4 years after departure. On 5 October 1945 he was discharged. On discharge, he still had a first grade health clearance. Ther is no evidence of any chest X-ray at that point.

He joined the Army as a non smoker. That may have been unusual for a single labourer in 1940, when smoking was much more fashionable than at the present day, and certainly was prevalent amongst manual workers, but such is the evidence which was accepted. On the evidence, similarly accepted, he began to smoke in 1941. He remained a smoker from that point onward. There was ambple evidence led that the Army both made available, and facilitated availability of, cigarettes and tobacco for New Zealand troops abroad. The high point of the evidence is perhaps a letter from Lt Gen Sir Leonard Thorton, which says:

There was copious other evidence from newssheets and official histories pointing to the availability of cigarettes and tobacco from Naafi, and later indigenous New Zealand, canteens at concessional prices. The latter histories tend to demonstrate cigarettes often were made available to men when unwinding, particularly with food or refreshments, after difficult or dangerous military operations. There is even a sad tale of a badly wounded man who survived just long enough, as it was put, to have a cigarette as he died. There is associated evidence of procurement and availability through the National Patriotic Fund organisation.

It is clear, of course, that men were not ordered to smoke as part of military duty, and were not otherwise officially exhorted to do. In a sense, it was left over to men, the Army seeing to supply but doing no more. As Sir Leonard Thornton further stated:

The claim that the men were 'not encouraged', while literally true, is perhaps a little disingenuous. It is notorious that attitudes to smoking in the 1940s and 1950s were very different to those prevailing amongst informed society today. Smoming was fashionable, and indeed expected. The non smoker was a comparative rarity. It is highly likely that free or cheap availability of cigarettes to young male soldiers under such conditions, and given peer pressure, would lead to smoking habits. The likelihood was higher, given the recognised anodyne effects of smoking upon the fears, exhaustions, and pains involved in military activity. Numbers in the end tell their own story. Smoking was seen by the Army as appropriate. The supply of cigarettes in such circumstances was likely, and must have been known to be likely, to increase smoking habits.

Following discharge in New Zealand on 5 October 1945 the Claimant lived in Lower Hutt, and proceeded, as did so many, belatedly to raise a family. He appears to have worked as a storeman. He continued to smoke. There is some evidence he tried to stop, but did not succeed. Apparently he claimed to have been unable to afford medical assistance, given the cost of raising a family. There are no findings by the Appeal Board on those latter matters. In 1977 he collapsed and was hospitalised. He ceased work soon afterwards, and on 28 December 1978 applied for a War Services Pension, noting the infirmity causing unfitness for permanent work as 'respiratory'. It seems he ceased work on 31 March 1979. He moved to Foxton in 1980. On 25 August 1987 he made the present application for a War Pension. On 9 November 1987 it was declined by the War Pensions Board, the decision being crypically recorded as:

This appeal was launched on 19 February 1988. The Claimant died on 2 November 1988 from a heart condition, after hearing had commenced.

Medical evidence supplied to the Appeal Board, apart from enlistment and discharge medicals, and service record, is opaque. Dr Saunders, the Claimant's GP until the latter's move to Foxton in 1980 (who also saw him once early in 1988 then referring him to Dr Watson a specialist) noted on 3 October 1988 that the Claimant had 'disabling chronic obstructive respiratory disease ... not helped by his cigarette consumption'. The doctor felt 'unable to really categorically state whether his service in the Desert contributed to these [various medical problems] but I feel that it is highly probable'. Dr Malthus of Foxton, who seems to have seen the Claimant in 1977 (possibly on the occasion of his collapse) stated on 22 February 1988 that 'his history extends back many years, and it is reasonable to suppose that military service initiated the early stages of the complaint'. Dr Watson, the specialist, who saw the Claimant on 9 March 1988, noted he suffered from chronic obstructive respiratory disease, as well as other heart and circulation problems. The doctor cryptically observed, 'in consequence in my opinion [he] deserves the consideration of the award of a War Service Pension, if not a War Disability Pension'. The total medical evidence clearly admits the possibility that (unspecified) aspects of military service may underlie his emphysema. There is no explicit reference to commencement of smoking, but such could well be tacit. There is no attempt to apportion significance of the 1941-1945 service period as against subsequent lifetime. No doubt there was some general awareness of requirements for War pensions, but there is no evidence of awareness of the niceties of 'attribution'.

The Apeal Board's factual findings, on that evidence, can be found at (1990) NZAR 47-48. A degree of uncertainty arises through the crucial passage commencing merely by recording the Claimant 'deposed' and 'contended'; but taken overall it is clear the Appeal Board not merely noted that evidence, but accepted it. In summary the crucial factual findings were:

On these facts, the Appeal Board ruled:

Plaintiff's case, as pleaded, put matters squarely on the basis of taking into account irrelevant considerations/failure to take into account (or sufficiently into account) relevant considerations/ms-direction in law. It will simplify analysis to quote verbatim:

 In submissions, counsel for the plaintiff sought to argue further that:

This was not a mere 17(3) 'reasonable evidence' enquiry. Counsel added, orally, that the submission was a Wednesbury/Webster 'unreasonableness' ground. I stated, and confirm, doubts whether such a latter ground comes within the pleadings as above; but counsel for Second Defendant was not embarrassed, and I will consider the submission as extending in those terms.

The Plaintiff's case, as ultimately presented in argument, did not however focus on such formal relevant/irrelevant consideration categorisations. The words 'relevant' and 'irrelevant' were not emphasised. The thrust of primary submissions centred upon alleged 'misdirection' inlaw particularised in paragrph 20(a) above, and worked outward to bring in some other pleaded factors. To this extent, the case became perilously close to some form of case stated on a point of law. The thrust of secondary submissions was directed at s17(3) and Wednesbury unreasonableness.

Judgment continued ...

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