Bey v Repatriation Commission

[1997] FCA 452

CATCHWORDS

VETERANS AFFAIRS - whether reasonable hypothesis connecting rheumatoid arthritis with service of veteran - whether mere possibility of connection inconsistent with there being a reasonable hypothesis.

Administrative Appeals Tribunal Act 1975

s 44

Veterans' Entitlements Act 1986

s 9, s 9(1), s 9(1)(e), s 9(2), s 119, s 120, s 120(1),

s 120(2), s 120(3)

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Yates (1995) 57 FCR 241

Repatriation Commission v Whetton (1991) 31 FCR 513

Kumar v Immigration Review Tribunal (1992) 36 FCR 544

Repatriation Commission v Stares (1996) 66 FCR 594

East v Repatriation Commission (1987) 16 FCR 517

Cooke v Repatriation Commission (Einfeld, Lee, Carr JJ,

unreported, 30 April 1997)

MICHAEL GEORGE BEY v REPATRIATION COMMISSION
No VG 10 of 1996

GOLDBERG J
MELBOURNE
30 MAY 1997

FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY)

GENERAL DIVISION)   No VG 10 of 1996

B E T W E E N:

MICHAEL GEORGE BEY
  Applicant

and

REPATRIATION COMMISSION
  Respondent

CORAM:GOLDBERG J

PLACE:MELBOURNE

DATE:30 MAY 1997

REASONS FOR JUDGMENT

Introduction and Background
The applicant appeals to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal given on 18 December 1995 whereby the Tribunal affirmed the decision made by a delegate of the Repatriation Commission on 14 August 1992 (affirmed by the Veterans' Review Board on 8 July 1993) that the applicant's rheumatoid arthritis was not war‑caused.

The applicant had served with the Australian Regular Army in Vietnam from 12 April 1968 to 27 April 1969, which service constituted eligible war service and operational service for the purposes of the Veterans' Entitlements Act 1986 ("the Act"). The applicant has now contracted rheumatoid arthritis which he contends is sufficiently linked to his service in Vietnam for it to be regarded as war‑caused for the purposes of the Act.

Whilst in Vietnam the applicant served as a member of an engineering squadron.  He carried out maintenance and construction work including the servicing of heavy earthmoving equipment which exposed him to stress.  He experienced discomfort from time to time which he attributed to the manner in which he was required to service or repair machinery.  The applicant played a lot of sport in Vietnam and he would sometimes wake up the next morning with painful joints or limbs and attribute his pains to sporting incidents.  The first time the applicant's symptoms were severe enough for him to seek medical attention was in 1974 or 1975 but he was first diagnosed as suffering from rheumatoid arthritis in 1979.  He now contends that the rheumatoid arthritis was war‑caused. 

Section 9 of the Act identifies the circumstances in which an injury suffered by a veteran is to be taken to be a war‑caused injury or a war‑caused disease. Section 9 is in the following terms:

"9.(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c)...

(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war‑caused disease;

(e)the injury suffered, or disease contracted, by the veteran:

(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii)was suffered or contracted before the commencement of the period, or last period, or eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

(2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:

(a)...

(b)if the incapacity was due to a disease - the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war‑caused disease contracted by the veteran."

The applicant's service in Vietnam was operational service and the issues before the Tribunal related to the proper construction and application of s 120 of the Act which is in the following terms:

1. Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

(2)...

(3)In applying subsection (1) and (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)that the injury was a war‑caused injury or a defence‑caused injury;

(b)that the disease was a war‑caused disease or a defence‑caused disease; or

(c)that the death was war‑caused or defence‑caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."

The construction of s 120 has been the subject of recent consideration and analysis by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. The argument centred around whether the Tribunal had adopted and applied the correct approach to the application of s 120 as laid down by the High Court in these decisions. (I note that s 120A and s 120B were inserted into the Act to resolve issues which had arisen in relation to the interpretation of s 120. However they only apply to claims made on or after 1 June 1994.)

Decision of the Tribunal

The Tribunal referred to the applicant's service in Vietnam and later service in Malaysia and set out the circumstances which had given rise to the issues now before the Court.  Two medical experts gave evidence for the applicant before the Tribunal.  Mr Hadley, an orthopaedic surgeon, in a written report did not express any opinion of his own as to the causation of rheumatoid arthritis, although he did set out views attributed to three named doctors who had also given reports on the applicant.  In oral evidence Mr Hadley agreed that the applicant's symptoms in Vietnam could have been possible indications of early rheumatoid arthritis and that his more intense work and sporting activities in Vietnam could have been "factors perhaps aggravating an underlying rheumatoid arthritis condition".  In cross‑examination Mr Hadley said that the causes of rheumatoid arthritis were unknown, that it was believed that physical and mental strains play a part in its causation and that being subject to more stress than normal could reasonably be considered a predisposing factor.  According to the Tribunal he elevated the symptoms described by the applicant in relation to his Vietnam experience to being "probably", as distinct from "possibly", the first manifestations of rheumatoid arthritis, and said that the physical and mental stress the applicant was under in Vietnam was a contributing factor to the development of his rheumatoid arthritis. 

The Tribunal made a finding that Mr Hadley based his opinions as to the existence or possible existence of a causative link between the applicant's experiences in Vietnam and his rheumatoid arthritis on a misreading of a report of another expert witness, Dr Mackay.  Dr Mackay had said that:

"Thus, in conclusion, the reasonable hypothesis can be presented that symptoms compatible with the initial onset of rheumatoid arthritis, in the case of the veteran Bey, developed during his period of eligible army service, whatever opinion might be held on the influence of conditions of service in initiating or aggravating the disease."

The Tribunal noted Mr Hadley's interpretation of this report as:

"I think that basically what he is trying to say is that he can't be sure but it is a reasonable hypothesis that his symptoms could have begun due to his service in Vietnam."

As the Tribunal correctly pointed out to Mr Hadley, Dr Mackay was not expressing an opinion as to the causation of the condition, but only as to the timing of its development.  Mr Hadley's response was that he was prepared to go further than Dr Mackay and say that the service conditions could have initiated or aggravated the condition of rheumatoid arthritis but Mr Hadley did not say in evidence why he was prepared to go further than Dr Mackay.

Dr Mackay was an eminent immunologist with an interest in rheumatoid arthritis for approximately thirty years.  His opinion was that the symptoms experienced by the applicant in Vietnam were consistent with the initial onset of rheumatoid arthritis.  The Tribunal then summarised Dr Mackay's evidence as follows:

"Dr Mackay gave evidence that the stimulating molecule that generates rheumatoid arthritis is not known, and that some individuals are genetically predisposed to the development of that condition.  He said that indulging in sport or physical work would reasonably be expected to bring out the symptoms of rheumatoid arthritis were the disease to be present in its earliest form, but that he was not prepared to say that physical activity whether work‑related or sport-related, is the cause.  He said that he would not exclude such activity as a cause, but that one cannot adduce any scientific evidence to favour it as a cause.  He said that he would expect any aggravation of the condition caused by physical work and sport to be transient, lasting a matter of weeks rather than months." (emphasis added)

The respondent called Dr Stephen Hall, a rheumatologist, who gave evidence that the delay between the applicant's service in Vietnam and the development of significant symptoms of rheumatoid arthritis was such as to make it impossible to postulate that physical or emotional stress during his service in Vietnam contributed to the development of the rheumatoid arthritis condition.  Dr Hall said that he considered it possible that symptoms experienced by the applicant in Singapore could have represented the beginnings of the rheumatoid arthritis and that it was technically impossible to make a diagnosis of rheumatoid arthritis without evidence of a swelling of a joint.  He also said that the link between rheumatoid arthritis and life stress was not a proven one and that one could not rule out an association between rheumatoid arthritis and the symptoms the applicant said he had experienced in Vietnam.  Dr Hall said that any aggravation of rheumatoid arthritis symptoms resulting from physical activity in Vietnam would have been very temporary, lasting a day or two, and that such activity would not have caused the condition.

The Tribunal then undertook its analysis of the evidence by asking the following question:

"The evidence raises a hypothesis that the applicant's physical work and sporting activities in Vietnam caused or contributed to the contracting of his rheumatoid arthritis.  We must consider whether that hypothesis is a reasonable one."

The Tribunal referred extensively to the judgment of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (supra, 414-415) and revisited the evidence of the doctors.  The Tribunal summarised Dr Mackay's evidence and its conclusion in relation to that evidence in the following passage:

"As we have said, Dr Mackay's opinion was that one cannot adduce any scientific evidence to favour the applicant's physical activity as a cause of his rheumatoid arthritis, though he would not exclude such activity as a cause.  He appeared to regard the suggestive cause as no more than a mere possibility.  If his were the only evidence on the point, we would reject as too tenuous the hypothesis that the applicant's physical work and sporting activities in Vietnam caused or contributed to the contracting of his rheumatoid arthritis." (emphasis added)

Although Mr Hadley had expressed the view that there was a causative link between the applicant's physical work and sporting activities in Vietnam and the contracting of his rheumatoid arthritis, the Tribunal noted that he was not a rheumatologist, that he had misinterpreted what Dr Mackay had written and that he gave no reason for his opinion as to the existence of a causative link between the applicant's physical work and sporting activities in Vietnam and the contracting of his rheumatoid arthritis.  The Tribunal noted that this opinion had not been advanced in his written report but had been advanced in cross‑examination.  The Tribunal also noted that there was no evidence of any body of medical opinion to support Mr Hadley's hypothesis which "lacked the hallmarks of a properly considered opinion" (page 10).  The Tribunal then said:

"We have no evidence that the onset of rheumatoid arthritis is, as a matter of common or even uncommon medical experience, accompanied by or associated with the sort of intense physical activity in which the applicant was engaged in Vietnam.  We do not regard Mr Hadley as eminent in the relevant field of knowledge.  We consider his hypothesis too tenuous to be regarded as reasonable."

The Tribunal continued:

"Apart from Mr Hadley's unreasonable hypothesis, the evidence before us does not raise any hypothesis connecting the applicant's rheumatoid arthritis with any occurrence that happened while he was rendering operational service in Vietnam, nor does it raise any hypothesis that the applicant's rheumatoid arthritis arose out of or was attributable to his service in Vietnam.  There is no evidence to suggest that the applicant's rheumatoid arthritis would not have been contracted but for his having served in Vietnam, or but for changes in his environment consequent upon his having rendered that service.  There is no evidence to suggest that his rheumatoid arthritis may have been contributed to in a material degree by his service in Vietnam."

As the evidence of all expert medical witnesses suggested that the applicant may have contracted rheumatoid arthritis during or before his service in Vietnam the question arose, consistently with s 9(1)(e) of the Act, whether that condition was aggravated by any eligible war service rendered by the applicant. The Tribunal noted that it was not necessary that the condition be aggravated to a material degree so long as it was "made worse". The Tribunal observed that "a temporary worsening of symptoms may occur without any aggravation of the underlying pathology or disease" and referred to Repatriation Commission v Yates (1995) 57 FCR 241. The Tribunal then referred to the evidence by the three expert medical witnesses and found that there was no evidence that the applicant's rheumatoid arthritis, if he had contracted it by the time he left Vietnam, became worse because of his service in Vietnam.

The Tribunal's conclusion "after consideration of the whole of the material" was that it did not raise "a reasonable hypothesis connecting the applicant's rheumatoid arthritis with the circumstances of the particular service rendered by him". It then applied s 120(3) of the Act and said that it was:

"satisfied beyond reasonable doubt that there is no sufficient ground for determining that that disease was a war‑caused disease."

Applicant's submissions

Mr De Marchi, who appeared for the applicant, submitted that the Tribunal had not approached its consideration of the material before it as required by s 120 of the Act in accordance with the principles set out in Bushell (supra) and Byrnes (supra). He submitted that the Tribunal had failed to look at the whole of the material before it, had adopted an adversarial attitude and had failed to examine whether a reasonable hypothesis had not been established, as required by s 120(3) of the Act, but rather asked whether a reasonable hypothesis had been raised. He submitted that the Tribunal should have looked to see if there were any factors present in the material that might have pointed to the hypothesis and said that the Tribunal had fallen into the fundamental error identified in Repatriation Commission v Whetton (1991) 31 FCR 513 where at 521 the Full Court of the Federal Court said:

"There is a fundamental error in this approach, since s 120 made it mandatory to reach a finding in favour of the respondent unless her case could be rejected beyond reasonable doubt or, applying subs (3), the Tribunal could form the opinion that the material before it did not raise the reasonable hypothesis referred to in the statute.  It was not a question whether the Tribunal could be satisfied that there had been raised an appropriate hypothesis, a reformulation of the problem in terms obviously unfavourable to the respondent."

Mr De Marchi said that Dr Hall's evidence supported the existence of a reasonable hypothesis and submitted that the Tribunal had erred in the manner it examined the material before it for the purpose of s 120(3) of the Act. He submitted that the Tribunal had not approached the issue of the hypothesis in the terms required by the High Court in Byrnes (supra) where at 571 the Court had said:

"The position may be summarized as follows: (1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, subs (1) of s 120 is applied."

Mr De Marchi's fundamental submission was that the Tribunal had conflated the separate requirements of subs (3) and subs (1) and that, in asking whether the relevant hypothesis had been raised, the Tribunal negated the factors supporting the existence of the hypothesis, which resulted in an incorrect application of subs (3) of s 120 of the Act. In this respect Mr De Marchi referred to Bushell (supra, 414) where the Court said:

"So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists."

In substance Mr De Marchi was saying that it is not correct for the Tribunal to compare the hypothesis with facts negating the hypothesis but rather the Tribunal must look at whether there are facts available to support the hypothesis and one should not weigh the material for and against the hypothesis as this is not the task required by s 120(3).

Respondent's submissions

Ms Mortimer, who appeared for the respondent, submitted that the Tribunal had correctly applied the test set out in Whetton (supra at 521) and had in fact properly considered as its first step the matters arising under s 120(3) before considering s 120(1) as it was required to do consistently with Byrnes (supra) and Bushell (supra).  Ms Mortimer submitted that whether or not a particular hypothesis was reasonable was a question of fact and that the Tribunal's conclusion was reasonably open on the evidence.

Did the Tribunal correctly apply s 120?

Although the Tribunal correctly identified the principles referred to in Bushell (supra) I have reached the conclusion that the Tribunal made an error of law in the manner in which it approached and treated the expert medical evidence. I do not accept Mr De Marchi's submission that the Tribunal conflated the requirements of s 120(3) and s 120(1) or that it did anything other than examine the whole of the material to determine whether there were facts to support the hypothesis and determine whether the hypothesis was reasonable. As I noted earlier (page 8) the Tribunal accepted that the evidence raised the hypothesis that the applicant's physical work and sporting activities in Vietnam caused or contributed to the contracting of his rheumatoid arthritis. The Tribunal then said, "We must consider whether that hypothesis is a reasonable" one. The Tribunal was required to ask and answer that question, being satisfied that the hypothesis had been raised, in order to determine whether it was of the opinion that the material before it did not raise a reasonable hypothesis connecting the rheumatoid arthritis with the circumstances of the applicant's service in Vietnam. In approaching the matter this way the Tribunal was not falling into the error identified by the Court in Whetton (supra at 521) and it was accepting and adopting the position summarised by the High Court in Byrnes (supra at 571).

The Tribunal did not weigh the evidence for and against the reasonableness of the hypothesis but rather asked whether the whole of the material raised the hypothesis which was reasonable.  In answering this question the Tribunal fell into error.  It found that Dr Mackay's evidence, taken alone, meant that the hypothesis was "too tenuous".  Yet the Tribunal accepted that Dr Mackay had regarded the suggestive cause of the rheumatoid arthritis as being the applicant's physical activity as being "no more than a mere possibility".  It will be recalled that Dr Mackay had said that he would not exclude the applicant's physical activity whether work‑related or sport‑related as a cause.  Ms Mortimer said that Dr Hall could not exclude it as a cause because he had said the cause was not known.  But that is not the point.  As was pointed out in Bushell (supra, 414):

"So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists."

True it is that the High Court said (414) that a hypothesis is not reasonable if it is:

"obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous".

(cf:  East v Repatriation Commission (1987) 16 FCR 517, 532).

But although the Tribunal found the hypothesis "too tenuous" when based on Dr Mackay's evidence, it did find that he regarded the applicant's physical activity "as no more than a mere possibility".  Having made this finding it was not open to the Tribunal as a matter of law consistently with the principles in Bushell and Byrnes to find that the material did not raise a reasonable hypothesis connecting the applicant's rheumatoid arthritis with his service in Vietnam.  It was not the Tribunal's function at that time to reject the hypothesis as unreasonable because it conflicted, for example, with Dr Hall's opinion.  As the High Court in Bushell (supra 415):

"But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion."

The Tribunal's error in its approach to Dr Mackay's evidence also had an effect on the Tribunal's approach to Mr Hadley's evidence.  It found that Mr Hadley's evidentiary basis for the hypothesis was "too tenuous to be regarded as reasonable".   The Tribunal found that Mr Hadley had misinterpreted Dr Mackay's report "as to the critical point", that point being that Dr Mackay had said:

"Thus, in conclusion, the reasonable hypothesis can be presented that symptoms compatible with the initial onset of rheumatoid arthritis, in the case of the veteran Bey, developed during his period of eligible army service, whatever opinion might be held on the influence of conditions of service in initiating or aggravating the disease".

Mr Hadley had interpreted Dr Mackay's report as follows:

"I think that basically what he is trying to say is that he can't be sure but it is a reasonable hypothesis that his symptoms could have begun due to his service in Vietnam".

It is true that Dr Mackay had not used these words in his report and had not in his report said it was a reasonable hypothesis that the applicant's symptoms could have begun due to his service in Vietnam.  What he had said in his report was:

"I would not be prepared to assert on the evidence before me that the exertions and stresses experienced by the veteran during his period of eligible army service could necessarily be implicated as causal factors".

Yet in his evidence Dr Mackay had said that he would not exclude work‑related or sport‑related activity as a cause but he could not adduce any scientific evidence to favour it as a cause.  It is important to note that he did not say that the hypothesis was "contrary to proved scientific facts" (cf Bushell (supra, 414)).

The Tribunal was somewhat critical of Mr Hadley's evidence saying that he gave no reason for his opinion as to the existence of a causative link; that his hypothesis "lacked the hallmarks of a properly considered opinion" and that it did not regard him as "eminent in the relevant field of knowledge".  It also noted that it had no evidence that the onset of rheumatoid arthritis is, "as a matter of common or even uncommon medical experience, accompanied by or associated with the sort of intense physical activity in which the applicant was engaged in Vietnam".  That may be so, but as the High Court observed in Bushell (supra, 414) that is not decisive in determining whether a hypothesis is reasonable.

In my view the Tribunal erred in its approach to Mr Hadley's evidence as it disregarded the basis on which it could be said his hypothesis might be reasonable.  In finding that his hypothesis was too tenuous to be reasonable it misapplied the principles identified in Bushell (supra).  What effectively underpinned Mr Hadley's evidence was not only his own opinion but the extent to which it was based on Dr Mackay's hypothesis which was, as the Tribunal found, "a mere possibility".

The conclusion I have reached is supported by the reasoning of the Full Court of the Federal Court in Cooke v Repatriation Commission (Einfeld, Lee, Carr JJ, unreported, 30 April 1997). In that case the Tribunal had concluded:

"The evidence linking the chronic bronchitis to the two periods of hospitalisation in Japan leaves the matter in the realm of mere possibility.  It is insufficient to raise a reasonable hypothesis.  If there was any contribution at all with the development of chronic bronchitis some 20-30 years later it was minimal."

According to Einfeld J the learned primary judge:

"read the reference by the Tribunal to a 'minimal' contribution by those infections to the development of chronic bronchitis as a conclusion that 'any connection or contribution from these episodes was de minimis and was so tenuous or remote as not to be capable of giving rise to a reasonable hypothesis of connection'."

Einfeld J concluded that the Tribunal's reasons could not be so explained.  He said (18 ‑ 19):

"On their face its reasons suggest that it misunderstood the proper construction of the former section 120. By its use of the words 'mere possibility' to ground a conclusion that a reasonable hypothesis had not been raised, the Tribunal seems to have understood that a 'mere possibility' was inconsistent with a reasonable hypothesis. A hypothesis is the premise on which a supposition is based or a possibility suggested. It is in substance a possibility. Therefore, a statement that a reasonable hypothesis is not raised because it 'leaves the matter in the realm of mere possibility' reflects a misconception of the task imposed on the Tribunal by section 120 of the Act as it was at the relevant time."

Lee J reached a similar conclusion.  He said (5):

"With respect to his Honour, it is not apparent that the reasons of the Tribunal may be so explained. The Tribunal seems to have understood that a "mere possibility" was inconsistent with a reasonable hypothesis. An hypothesis is the (sic) argument constructed from a supposition or a possibility. A statement that a reasonable hypothesis is not raised because it 'leaves the matter in the realm of mere possibility' is inconsistent with the application of s120 of the Act according to its proper construction."

It therefore follows, in my opinion, that the Tribunal erred in law in the manner in which it approached and applied subs (3) of s 120 of the Act and that the decision of the Tribunal should be set aside. It is therefore strictly unnecessary to consider the alternative submissions made by the applicant in relation to other errors of law relied upon. However as the matters were argued before me I consider those submissions briefly.

Mr De Marchi submitted that the reliance of the Tribunal on the decision in Yates (supra) for its interpretation of "aggravation" was misconceived as Yates was concerned with a different burden of proof.  However, the Tribunal used Yates not on the issue of the appropriate burden of proof but rather for the content of the expression of "aggravation" and in my view this use was not misconceived.

It was finally submitted that the Tribunal erred in law in not attempting to raise any favourable inference linking the applicant's war service in Vietnam with his rheumatoid arthritis as it should have done consistently with s 119 of the Act. Mr De Marchi relied upon s 119 for the proposition that the Tribunal was obliged to act in accordance with the substantial justice of the matter and to take into account relevant difficulties. He submitted that in requiring a causative link between rheumatoid arthritis condition and the war service the Tribunal was acting contrary to s 119. But the requirement to act in accordance with the substantial justice of the matter does not entitle the Tribunal to act at large without giving consideration to relevant principles: Kumar v Immigration Review Tribunal (1992) 36 FCR 554, 555-6. Mr De Marchi relied upon the decision of the Full Court of the Federal Court in Repatriation Commission v Stares (1996) 66 FCR 594 at 598, 601 for the proposition that the Tribunal had required each element in the hypothesis to be established by evidence. As the Full Court pointed out in Stares (601):

"Such a requirement would convert the hypothesis to a prima facie conclusion.  It is trite to observe that a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact."

However, on a fair reading of its reasons the Tribunal did not require each element in the hypothesis to be established by evidence and did not seek to convert the hypothesis to a prima facie conclusion.  Rather it analysed the evidence to determine whether there was any reasonable basis for the hypothesis to be found in any of the evidence.

The Tribunal's error of law occurred at the threshold of consideration under subs (3) of s 120 of the Act. Accordingly, the application is now to be determined under subs (1) of s 120 of the Act. The majority of the High Court in Bushell (supra, 415 - 416) identified the chain of investigation in the following way:

"Likewise, it is the duty of the Commission under s 120 to decide the claim on the material before it and, unless there is material which raises a reasonable hypothesis connecting the operational service with the incapacity or death, there is nothing upon which the Commission can find that the incapacity or death was war caused within the meaning of s 120(1). But once the material raises such a hypothesis, the operation of s 120(3) is spent and the case falls to be determined in accordance with s 120(1). That is to say, the Commission must determine that the injury etc was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination."

I will give the parties the opportunity to make submissions as to whether the application should be remitted to the Tribunal to make a determination in accordance with subs (1) of s 120 of the Act or whether some other form of order is appropriate in the light of these reasons.

Counsel for the applicant: Mr D De Marchi

Solicitors for the applicant: De Marchi & Associates

Counsel for the respondent: Ms D Mortimer

Solicitors for the respondent: Australian Government Solicitor

Date of Hearing: 2 May 1997

Date of Judgment: 30 May 1997

I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment of the Honourable Justice Goldberg

Associate:

Date:30 May 1997