Abel Equipment Pty Ltd v National Captial Development Commission

[1983] FCA 231

Re: THE REPATRIATION COMMISSION
And: DORIS RUBY MORCOMBE
No. WA G22 of 1983
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Repatriation - War widow's pension - Death of former member of Armed Forces from carcinoma - aetiology of disease unknown - whether death arose out of or was attributable to war service - Construction and operation of ss.47(2) and 107VH - Question of fact - Evidence of expert witnesses not fanciful - Claim for pension lodged in 1976 - Request for review of Commissioner's decision in 1981 to refuse claim - Relevant date upon which Commonwealth's liability to pay pension arose - meaning of "relevant claim for pension" in s.107VZG(1)(d).

Repatriation Act 1920 ss.24(1), 24AA, 31, 101(1), 107VC, 107VL, 10ZVZG(1)(d), 107VZZH.

HEARING

SYDNEY

#DATE 2:9:1983

ORDER

1. The appeal is dismissed.

2. The cross-appeal is allowed.

3. The decision of the Repatriation Review Tribunal given on 17 March, 1983 is varied so that it is expressed to operate from 13 December, 1975.

4. The appellant pay the respondent's costs of the appeal and of the cross-appeal in accordance with the provisions of s.107VZZK.

5. 19 September, 1983 is fixed as the date within 21 days after which any notice of appeal shall be filed and served for the purposes of Order 52 Rule 15 (1)(a)(iii).

JUDGE1

This is an appeal, on a question of law, instituted under s.107VZZH of the Repatriation Act, 1920 ("the Act"). In its appeal, the Repatriation Commission seeks, first, an order setting aside a decision of the Repatriation Review Tribunal ("the Tribunal") made under s.107VC of the Act. In that decision, made on 17 March, 1983, the Tribunal set aside a decision of the Commission to refuse repatriation benefits to the respondent in relation to the death of her late husband which, she claimed, arose out of or was attributable to, service in two world wars. Secondly, the Commission seeks an order setting aside the further decision of the Tribunal made on 17 March, 1983 that, pursuant to ss.24 and 101 of the Act, the Commonwealth is liable to pay to the respondent the pension payable under Division 1 of Part III of the Act in the case of the death of a member of the Forces.

The deceased member, Arnold Edward Morcombe, served in the army in World War I in Australia, Gallipoli and the Middle East from 1915 to 1919 and in World War II within Australia in 1940 (4 months) and from 1941 to 1949: a total service of 11 years and 9 months.

Incapacity arising from gastric ulcer has been accepted as being related to World War II service but this incapacity did not cause death. Mr. Morcombe died on 13 December, 1975, aged 78 years. The certified cause of death was carcinoma of rectum (6 years) and secondaries of both lungs (2 months).

On 19 February, 1976, the respondent applied for a pension on the grounds that she believed that her husband's illness was "primarily war caused. He had malaria (from Egypt), was treated for ulcers (stomach). . . Also operated on in 1970 for colostomy (cancer)."

The Repatriation Board rejected the claim on 22 June, 1976. The Commission dismissed an appeal from that rejection on 21 September, 1976. A War Pensions Entitlement Appeal Tribunal dismissed an appeal from that decision on 22 January, 1979. On 18 April, 1979, the Commission affirmed its previous decision. On 8 May, 1981, an application was made, on behalf of the respondent, for the Commission to reconsider under s.31 or s.107VL(1) the decisions to refuse the grant of pension. On 8 December, 1981, the Commission decided not to accede to the request. Subsequently, an application for review was made to the Tribunal which gave its decision, the subject of this appeal, on 17 March, 1983.

During his service in World War I, the deceased contracted malaria. He suffered recurrences from time to time. He was also hospitalised for enteric disease.

Prior to World War II, the deceased suffered from haemorrhoids. They were excised in 1941. In the course of his second enlistment and subsequently, the deceased suffered from dyspepsia. A duodenal ulcer was indicated. In 1949, he was admitted to the hospital for investigation of dyspepsia. A clinical diagnosis of diverticulitis was given. His medical history shows continuing reference to bouts of dyspepsia. On 22 April, 1955, the Commission approved a pension at a twenty per cent rate in respect of the gastric ulcer.

In February, 1957, the deceased was examined by a gastroenterologist, Dr. C.H. Leedman, who reported as follows:

"The story is disquietening. A chronic gastric ulcer in a man of 60, which after a latent period, begins to show signs of activity, brings up the suspicion of carcinoma. He should be an ideal case to submit to gastroscopy and full treatment."

This was the first suggestion of cancer in the medical history of the deceased. However, the gastroscopy revealed only the existence of a healing simple ulcer. Further tests in 1958 indicated a high gastric ulcer. The pension was increased to a forty per cent rate. He was hospitalised in 1960 for treatment of the gastric ulcer. A chest x-ray report at the time revealed a linear dense opacity in one of the lungs but the radiologist reported that he would be surprised if this were caused by a neoplasm or an infective lesion and that he would be inclined to leave it alone. The deceased continued to suffer from chest problems. In 1968, bronchiectasis was diagnosed. An x-ray revealed evidence of chronic bronchitis but no localised pulmonary lesion was seen.

In February, 1970, carcinoma of the rectum was diagnosed. Part of the rectum was excised by surgical operation. The pathologist's diagnosis was "adeno carcinomas of rectum arising from villous adenomas". This condition eventually caused death on 13 December, 1975. The final pathological diagnosis in the post-mortem report was:

"1. Disseminated moderately to well differentiated adeno-carcinoma in keeping with primary colonic carcinoma (Previously resected).
2. Bilateral bronchopneumonia. Emphysema. Apical lung scars (old healed TB).
3. Benign gastric ulcers."

Before the Tribunal, both the applicant and the Commission sought to rely upon opinion evidence from a number of medical experts. The Tribunal found that the primary cause of death was carcinoma of the rectum with secondaries in the lung but that the cause of the cancerous process in this case was not known. In the Tribunal and in this appeal, the argument turned on the construction and operation of ss.47(2) and 107VH of the Act (see Repatriation Commission v. Law (1981) 36 A.L.R. 411). In that connection, the Tribunal said:

"The Tribunal does not find it necessary to decide whether or not the villous adenoma was an implicating factor or that it was related to either or both of the member's periods of war service during which time (in 1915) he suffered from an enteric disorder commonly known as "Gyppo tummy" nor to haemorrhoids that were excised in 1941. The clear fact that emerges from the evidence is that the cause of the member's rectal carcinoma process remains unknown and that the aetiology of villous adenoma is also unknown. If the Tribunal had to decide this issue on the balance of probabilities it would accept the Commission's proposition but that is not the test required under Section 107VH of the Act. Thus the whole matter comes down to the simple proposition which may be quite plainly and clearly stated -
In cases where a disease or incapacity is one of unknown aetiology, except where it can be shown that a disease or illness could not as a real possibility be related to war service, can the Tribunal be satisfied to the required degree that that disease or illness is not related to war service?
If the answer is 'no' then a pension must be granted. If 'yes' then a pension should be refused.
The Tribunal rejects the Commission's argument that where there is no or insufficient evidence to suggest as a real possibility that war service was implicated in the onset of a disease the Commission has discharged the onerous burden given to it under the provisions of the Act."

The Tribunal then referred to its own reasons in a case of Bannister and to some observations made by Murphy J. in Law's Case (supra). In Bannister, the Tribunal had held that:

"In cases where the aetiology of a disease is unknown and incapacity or death arises from that disease then, except in the rare instances which could be positively stated as falling outside the parameters of the appropriate qualifying sections, a claim for pension should be granted."

Reference was then made by the Tribunal to a decision of the Administrative Appeals Tribunal in a case of O'Brien:

"In O'Brien's case a pension had been claimed for incapacity arising from essential hypertension and a skin rash which was claimed by the applicant in those proceedings to be related to his war service. Expert evidence was called in support of the claim, and also in rebuttal of the claim respectively. It was stated that essential hypertension was a disease of unknown aetiology and it was claimed, inter alia, that it could not be proved beyond reasonable doubt that the condition was not related to war service, in particular a challenge was mounted as to the correctness of a blood pressure reading at the time of discharge. The Administrative Appeals Tribunal was able to be satisfied to the required degree that that case was one such that fell into the exclusion mentioned in re Lennell."

The Tribunal then continued:

"In Morecombe's case, however, the Tribunal was faced with two diseases of unknown aetiology one of which might have been related to the other (fatal) disease but of which in itself little was known other than it predominantly occurs with advancing age. Nevertheless, there was good evidence tendered that the disease could have arisen from a cell insult from ten to forty years or more previously. The Tribunal bears in mind that the member had more than one-seventh of his lifetime in Army service and that service, part of which was spent in arduous military campaigns in Gallipoli and the Middle East in World War I under conditions in which the member suffered one recorded episode of enteric disorder and (by inference from the nature of the campaign and battle conditions) probably more, the Tribunal arrives at the conclusion that the circumstances of Morcombe's case differ materially to those of O'Brien and the cases should therefore be distinguished.
In respect of the application for pension by Mrs. Doris Ruby Morcombe the Tribunal has decided that it is not satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim."

The Commission raises two grounds of appeal:

"1. The Tribunal erred in its determination in that it proceeded to set aside the applicant's determination upon the basis that the respondent's late husband, the member, had died of a disease of unknown aetiology whose connection with his war service had not been disproved beyond reasonable doubt.
2. The Tribunal in coming to its decision failed to address itself to the issue of whether there was before it any evidence capable of supporting an inference that there was a connection between the death of the member and his war service."

In the judgment of the Full Court of this Court in Law's Case (1980) 31 A.L.R. 140, reference was made to the need to determine whether Sir Edward Dunlop's report raised "a rational possibility" that the claim should be granted. A distinction was drawn between the fanciful and fantastic on the one hand and a real possibility on the other. This is consistent with the reasoning of Murphy J. and of Aickin J. in that case (see Repatriation Commission v. Bishop - 5 August, 1983 - unreported - Toohey J. at p.10-11; see also Repatriation Commission v. Byrne (1981) 40 A.L.R. 296; Lennell v. Repatriation Commission - unreported - 3 February, 1983 - Full Federal Court - 4 A.L.N. (29)).

In Byrne's Case (supra.) there was expert medical evidence of a causal connection between the contraction of malaria and the death of the ex-serviceman. The Court said (at pp.302-303):

"The matter was one essentially for the Tribunal as the tribunal of fact. We do not regard the hypothesis put forward by Dr. Metcalf and the other witnesses as fanciful. We agree that it stands as no more than a possibility but in our opinion the Tribunal was well entitled to take the view, as it did, that the possibility was real and distinct."

It is true that, in the present case, there was expert opinion evidence to the effect that the carcinoma did not arise out of war service. However, there was also expert evidence which urged a different view. For example, in a report dated 12 May, 1977, Dr. D. Hainsworth, Forensic Pathologist, State Health Laboratory Services, Western Australia said:

" . . . Apart from certain known factors in the development of carcinoma, the majority of predisposing and causative factors are unknown. However, it is known that the genesis of carcinomas is a long term matter and that events many years before the development of symptoms are of importance. In effect the Commission are saying that two periods of this man's life, between 1915 and 1919, and between 1940 and 1948 have no bearing on his subsequent disease. This man's environment and way of life during these two periods would be considerably different from what they would have been if he had remained a civilian and as carcinomas are the end result of the patients whole life-style, these periods, in my opinion, can in no way be discounted as of no importance."

Dr. T.J. Constance, a Consultant Pathologist, reported on 15 December, 1977 as follows:

" . . . I have persued the file of this case. The patient died from carcinoma of the rectum associated with metastases.
The patient suffered from dyspepsia since at least 1942. In 1954 a diagnosis of chronic gastric ulcer was made based on a barium meal examination. In 1970 he was investigated for a weight loss associated with a fourteenth month history of a change in bowel habits. The investigations showed that he was suffering from carcinoma of the rectum. The patient subsequently developed secondary deposits in the lungs, liver and other organs.
Carcinoma of the large bowel is one of the commonest forms of malignant disease and the average age of patients at the time of diagnosis is the sixth decade. Predisposing conditions include benign neoplastic polyps.
It is a recognised fact that a latent period of variable duration commonly elapses before malignant tumours appear following the application of a carcinogen. However, it is not possible to associate the patient's malignant disease to some hypothetical agent to which he may have been exposed during war service. It is also not possible to relate the dyspepsia to the carcinomatous process or to support the statement that malaria played a role in the development of malignancy. It is recorded that the patient had two villous polyps of the rectum and that these had undergone malignant transformation. It should be pointed out that benign neoplastic polyps are slow growing and may not produce symptoms; moreover, it appears that many years may elapse before they turn into invasive carcinoma. It is therefore possible that the polyps may have been present during war service."

Sir Edward Dunlop, in a general submission, said:

"Modern researches have discovered some chemical substances so deadly in this regard that a single exposure will cause cancer. The same authors in 1966 stated that the interval between first exposure to dust and development of the tumour ranged from 17-55 years (mean 38). The individual response to the exposure seems to be markedly variable. Obviously the deduction can be drawn that when a service man or woman is sent to another climate and a very different environment, that he or she is likely to be exposed to carcinogenic factors which would not have operated under normal circumstances and this may determine cancers which are not in evidence until middle age or old age. Some cancer producing agents must be considered:-

1. Chemical substances or chemical carcinogens -

These are a complex and ever growing list to which additions are made at a bewildering rate.
. . .
Some individuals live for years both with primary cancer and metastases, and then suddenly the tumour gains ascendancy with death of the individual. The expanding knowledge of environmental causes of cancer supports the contention that many cancers affecting ex-service men in later life may have been determined by factors operating during their service.
. . . "

In another general submission in evidence Sir Edward Dunlop said:

"Obviously the deduction can be drawn that when a service man or woman is sent to another climate and a very different environment, that he or she is likely to be exposed to carcinogenic factors which would not have operated under normal circumstances and this may determine cancers which are not in evidence until middle age or old age.
Some of these cancers may be harboured for years without clinical evidence of their presence as well contained foci, e.g. cancer in-situ or inconspicuous and well supported lesions. Cytology studies may show the presence of cancer cells for years before a cancer of the cervic becomes evident in the female who is affected.
A soldier who contracted bilharzia in Egypt with bladder or rectal involvement could develop a cancer in these organs after a latent period of years."

There was also before the Tribunal some extracts from evidence given by Professor Tattersall in Lennel's Case, (supra.) as follows:

"Professor Tattersall:
It is believed that cancer does not occur in a single step; but that rather there is an insult to a cell, and that, following this, the cell is damaged but not, in fact, a cancer cell until some further process takes place which is called promotion, and a totally different sort of agent may cause promotion compared with the agent which may cause the original insult. Therefore, cancer is seen to occur in at least two steps. The first being damage to the cell and the second, if you like, the promotion of that damage to give rise to a cancer which may become clinically evident many years later.
. . .
Mr. Meadows:
I would ask you to explain to the Tribunal what you mean by an insult to a cell?
Professor Tattersall:
The simplest might be a physical relationship. Let us say radiation. If I was to have a cell here and to shine x-rays at it, that would be an insult to that cell. It can be chemical. It might even, under certain circumstance be viral, or it can be physical; but it is a damaging influence to a single cell. Most of those damaging influences cause the cell to die and obviously they are of no further interest. It is the ones which survive and have the potential after exposure to promoting agents.
The cell behaves differently after that insult but if you were to ask me how to define the physical change I could not do that. I would say that a behaviour pattern has been changed and that that must presumably reflect a physical event in itself.
Mr. Meadows:
It is true to say that this particular insulted cell can remain in the body for many years before it actually develops into a cancer and, in fact, may never develop into a cancer?
Professor Tattersall:
The best data perhaps, is 35 years. I relate to Hiroshima. That is the only way it can be precisely timed.
. . .
Mr. Meadows:
Would you agree that there is not just one cause for any particular cancer?
Professor Tattersall:
I think there probably are one or two cancers where there is just one cause but, in general, I think it would be fair to say that cancers are thought to be multifactorial in their causation.
. . .
Mr. Meadows:
What do you mean by promotion?
Professor Tattersall:
Scientifically what I mean is that the damaged cell is rendered a cancer cell which can be identified by its changed behavioural characteristics and that that does not happen without the operation of a promoting agent in an experimental circumstance.

Mr. Meadows:
Is it known at what stage this promotion occurs in relation to the actual carcinoma?
Professor Tattersall:
A cancer cell will not develop if the promoting agent is applied before the cell is insulted, so you have to have the sequence of insulted cell, damaged cell, followed by the promoting agent."

Evidence given in Byrne, supra, by Dr. Donald Metcalf, Head of Cancer Research at the Walter and Eliza Hall Institute of Medical Research, Melbourne, and a world recognised authority was also relied on by the respondent. He said:

"There is a period during which a series of abnormal changes take place which leads eventually to the consequence of the first truly cancerous cell. This is referred to as the pre-cancerous or pre-neoplastic period and then there is a second period during which that first cell proliferates and eventually forms that large mass of cells that is then detected clinically. The exact length of the two periods is not known for most human cancers but it is known in special circumstances where some initiating cause was known. A generalisation, therefore, which is true for many cancers is that the total length of the development period before the disease becomes apparent clinically is surprisingly long, commonly in the range of twenty to forty years and almost invariably symptomless in that it is not aware to the patient-to-be that they are, in fact, developing a disease."

It was submitted on behalf of the Commission that the Tribunal erred in law in that no evidence was adduced in support of the hypothesis that death arose out of or was attributable to war service. Alternatively, it was submitted that the Tribunal erred in law by failing to take into account relevant evidence. It was said that the Tribunal proceeded not upon a proper consideration of medical evidence but by holding in effect, that if the cause of the disease is unknown and if it cannot be positively proved that the disease arose out of or was attributable to, war service, the claim must be granted.

In my opinion, the present case is similar in principle to Byrne's Case, supra. In other words, the matter was essentially for the Tribunal as a tribunal of fact. In my opinion, the hypothesis advanced by the expert witnesses relied on by the respondent should not be dismissed as fanciful or as not a real possibility. It follows, in my opinion, that the decision of the Tribunal was correct in law.

The reasoning of the Tribunal rejected an argument by the Commission that:

". . where there is no or insufficient evidence to support as a real possibility that war service was implicated in the onset of a disease the Commission has discharged the onerous burden given to it under the provisions of the Act."

The meaning of this passage is not entirely clear. Immediately before this, the Tribunal correctly stated the issue in the claim and it may be that this passage is not entirely consistent with the way in which the Tribunal perceived its task. Nonetheless, in my opinion, if the reasons of the Tribunal are reas as a whole, the impression is given that, in the end, the Tribunal is endeavouring to apply the test laid down for present purposes in the authorities. I do not think that, in the passage cited, the Tribunal was intending to depart from that test, although the passage could have been more clearly expressed.

I am of the opinion that the reasons, read as a whole, correctly state the test to be applied in these matters and, as has been said, the question ultimately becomes one of fact. In these circumstances, for the reasons given in Byrnes' Case, the Court should not interfere. The appeal should be dismissed. The respondent has cross-appealed by seeking an order varying part of the decision of the Tribunal so far as it was expressed to operate with effect from 8 February 1981. The question of law raised in the cross-appeal is whether, on a proper construction of s.107VZG(1)(d) of the Act, "the relevant claim for pension" is the claim for a pension lodged by the respondent on 19 February 1976 or the request on 8 May 1981 by the respondent to the Commission to review under s.31 of the Act the decision to refuse her claim for a pension. The respondent seeks an order that the decision of the Tribunal be varied so that it is expressed to operate with effect from 13 December 1975. The grounds of the cross-appeal are that the Tribunal erred in law in holding that the request by the respondent to the Commission to review under s.31 the previous refusal of a pension was "the relevant claim for pension" within the meaning of s.107VZG(1)(d); and that the Tribunal should have found that "the relevant claim for pension" was the claim lodged by the respondent on 19 February 1976 and expressed its decision to operate from the date of the late member's death, 13 December 1975, such date being the date upon which the Commonwealth of Australia's liability to pay a pension to the respondent arose and within the three months preceding the lodgment of the respondent's claim.

Section 24(1) provides that upon the death of a member of the forces, the Commonwealth shall, subject to the Act, be liable to pay to the members or his dependants, or both, as the case may be, pensions in accordance with Division I of Part III, provided that (inter alia), a claim for payment of a pension in accordance with Division I is made, in the case of death, by a dependant not more than six months after the date of death. There are some exceptions. The proviso does not apply where the Commission is satisfied that failure to make the claim within the prescribed period was owing to some reason which, in the opinion of the Commission, is adequate. By s.24AA, a claim for pension shall be in accordance with a prescribed form. This provision was inserted in 1977; prior to this, there were no formal requirements for the making of a claim. In the present case, the claim was made by the letter dated 19 February 1976, supra. Section 101(1) is similar in its terms to s.24(1).

Section 31(1) provides that whenever it appears to the Commission that, under the Act, sufficient reason exists for reviewing any assessment, decision or determination in relation to pension, the Commission may review the assessment, decision or determination. By s.31(2), whenever, in pursuance of s.31(2), the Commission reviews an assessment, decision or determination and varies or, revokes the assessment, decision or determination, the Commission shall specify the date from which the variation or revocation shall operate. By s.107VZG(1)(a) and (d), a decision of the Tribunal on a review pursuant to an application under s.107VC shall not be expressed to operate from a date earlier than three months before the date on which the "relevant claim" for pension was lodged.

In Bannister v See (1982) 45 A.L.R 146, a Full Court of this Court considered the meaning of "review" and "sufficient reason" in s.31(1) and of "decision refusing a claim" in s.107VC. The question was whether, on the facts of the case, an appeal lay to the Repatriation Review Tribunal after the Commission had reconsidered a claim. The decision itself is not in point here. Although not an essential part of his reasons, Woodward J. (with whom Fox and Franki JJ. agreed) expressed the view (at p.151) that the application there purportedly made under ss.31 and/or 107VL(1) of the Act was, in substance, a fresh application.

In my opinion, it does not necessarily follow from this conclusion that the "relevant claim" for pension for the purposes of s.107VZG(1)(d) is the request for review under s.31(1): what is the "relevant" claim in any particular case is a matter of characterisation, to be judged in the light of the circumstances of the particular case. It is possible to imagine a case where it is proper to treat the request for review under s.31(1) as the "relevant" claim for the purposes of s.107VZG(1)(d). However, in its terms, s.107VZG(1)(d) contemplates the possibility that it may be necessary to choose between a number of claims in order to select the "relevant one".

In the present case, a claim was made pursuant to ss.24 and 101 in February 1976. The claim was based on grounds which are still pressed and have been pressed since the claim was first made. The claim has not been amended in any respect. It has been rejected from time to time. Decisions have been made refusing to reconsider those rejections. Since the application was first lodged, the Act has been significantly amended in terms of the onus of proof, as Law's Case, (supra.) shows. Given that history and given the view expressed in Bannister's Case, (supra.) (at p.151), the question remains: what is the "relevant" claim?

In my opinion, in the absence of any amendment of the claim, the "relevant" claim here is the application lodged in the form of the letter dated 19 February 1976. If the request for review under s.31(1) had been based upon grounds different to those intitially relied upon so as to constitute, in substance, a different claim, the position may well have been different. Further, I do not think that any amendment to the onus of proof provision in the meantime in any way alters the substance of the claim itself. It is still the same claim.

In the present case, the liability to pay pension springs from the provisions of ss.24 and 101. The claim, said to arise from death caused by cancer attributable to war service, has been made since February 1976 and has been persisted in since that date. In my opinion, it is the "relevant" claim. The cross-appeal should be allowed accordingly.