Black, D.T. v Costs, J.B

[1985] FCA 62

Re: DEIDRE THERESE BLACK
And: JOHN BRENDAN COATS and HERMAN ANTHONY JANSEN
No. WA G24 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

HEARING

PERTH
#DATE 1:3:1985

ORDER

1. The decision made by the respondents on 10 May 1983 refusing the applicant's claim for a pension under the Repatriation Act 1920 is set aside.

2. The applicant is entitled to a pension under the Repatriation Act 1920 with effect from 13 February 1980 by reason of the death of Ernest Meeham Black on 13 February 1980.

3. The respondents pay the applicant's costs of the application.

JUDGE1

This is an application under the provisions of the Administrative Decisions (Judicial Review) Act 1977. The applicant seeks a review of a decision made by the respondents, as the members of a Repatriation Board, refusing the applicant's claim for a pension under the Repatriation Act 1920.

1. Pursuant to the provisions of s.24AB of the Repatriation Act, where a claim for pension is lodged with the Department, the Secretary shall cause an investigation to be made into the matters to which the claim relates and thereafter cause the claim to be submitted to a Repatriation Board for consideration and determination. Section 28 of the Act provides an appeal to the Commission from any assessment or determination of a Board. The applicant has not pursued her right of appeal to the Commission; she has sought judicial review. That decision has certain consequences as I sought to point out in Bastiani v. Repatriation Commission (WA G87 of 1984) in which I delivered judgment earlier today. I do no more than repeat what is said at pp.10-11 of the reasons for judgment in that case.
   
   

"In that regard it is necessary to keep in mind that the application is under the Judicial Review Act. Although s.5 of that Act contains a number of grounds upon which an order of review may be sought, they are the only grounds upon which the Court empowered to review an administrative decision under the Act. The Court does not sit as a court of appeal in the sense in which that term is generally understood. It s not for the Court to make its own findings of fact or exercise its own discretion or substitute its own judgment merely because it thinks that the decision is wrong. Section 5 of the Judicial Review Act should not be read narrowly but it is the charter for the Court's interference with a decision reached under an enactment to which the Act applies".

1. The grounds upon which review is sought are that the making of the decision was an improper exercise of power, that the decision involved an error of law and that the decision was otherwise contrary to law. The ground of improper exercise of power is amplified by an assertion that the respondents took into account irrelevant considerations, failed to take into account relevant considerations, exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case and that the exercise of the power was so unreasonable that no reasonable person could have so exercised it. It does no injustice to the applicant's case to suggest that the three grounds are very much variations on a theme, the theme being an alleged failure by the Board to have regard to the principles enunciated by the High Court in Repatriation Commission v. Law (1980-1981) 147 CLR 635.

2. In its reasons for determination, the Board referred to s.101 of the Repatriation Act by reason of which the Commonwealth is liable to pay to the applicant a pension if her husband's death resulted from an occurrence that happened during his service, arose out of or was attributable to his service, or was contributed to in any material degree or was aggravated by the conditions of his service.

3. Mr. Black died from carcinoma of the colon. He served in the RAAF from 28 August 1943 to 6 February 1946; five months of that service was overseas in Morotai and Labuan. On enlistment Mr. Black declared that he had not previously suffered from stomach or bowel trouble and, after a medical examination, was classified Fit I. Before discharge he was medically examined and the examining medical officer recorded that his abdomen was normal. Late in 1978 he complained of poor digestion and of diarrhoea. In January 1979 a barium enema revealed a growth in the transverse colon. The presence of carcinoma was confirmed at surgery on 19 February 1979. The condition was inoperable and Mr. Black died on 13 February 1980.

4. The Board had before it a report from Dr. S. K. C. Chang who was Mr. Black's general practitioner and who had been treating him since 1976. In that report, dated 6 January 1983, Dr. Chang said:
   
   

"I understand that Mr. Black served with the RAAF overseas for over three years and during this period he had to eat substantial amounts of tinned and preserved food. It is possible that this diet could have been a contributing factor in the development of the cancer".

1. The reference to Mr. Black serving overseas for over 3 years was an error; as mentioned earlier, his overseas service was for 5 months. Dr. Chang did not state the source of his understanding that the deceased, while overseas, "had to eat substantial amounts of tinned and preserved food". Nevertheless the Board, in its reasons, accepted that during the deceased's service within Australia and overseas he would have consumed tinned and preserved food. The Board continued: "However, to conclude that consumption of this type of food was substantial is speculation".

2. The Board also had before it a report from a departmental medical officer in which it was said that the cause of cancer of the bowel, like other forms of cancer, is unknown. However it was possible that age and the western form of diet may have been factors. In summary, the report continued that there was no evidence recorded which indicated that the cause of death arose or was manifest on service, that it was unlikely that haemorrhoids treated on service in 1945 were in any way an early manifestation of the bowel cancer and that it was likely that the cause of death arose late in the post service period. The report continued with a passage that should be quoted in full:
   
   

"It is claimed that Bowel Cancer may grow slowly. Some Cancers grow slowly, others quickly. It would be difficult to determine which particular Cancer may grow at which rate. The rate of growth would likely be related to a multitude of interacting factors. However, there is research which indicates that it is possible that an initial insult to a cell may result in the development of Cancer 30-40 years later. It is possible that the initial insult which led to Cancer in the member's case may have occurred on service; but it is equally possible that the insult may have occurred at some other period of the member's life.

It is possible that diet on service and the effects of service life style in the tropics may have been a factor in the member's death; yet thousands of servicemen saw service in the tropics but few were unlucky enough to suffer from Bowel Cancer later in life.

The cause of Cancer is unknown.

While it is possible that the member's condition was service related, it is equally possible that it was not the case".

1. The report of the departmental medical officer included three pages of a document dealing with environmental factors in relation to cancer. The document does not appear to have been prepared by the medical officer himself though it would seem that he adopted its contents for the purposes of his report. The report draws attention to high rates of carcinoma of the colon and rectum in the westernised parts of the world, with very low incidence rates in sub-Saharan Africa in the indigenous population. It mentions a familial incidence suggesting a genetic predisposition to such cancers. It refers to growing evidence of bowel cancer with the adoption of western ways of life, particularly dietary change, and concludes with this summary:
   
   

"It appears that genetic and multiple environmental factors including diet, gut flora and disturbances in gut immunity are operative in carcinoma. Epidemiological studies are important when determining claims for cancer from service in different theatres of war. It could well be that environmental factors in civilian life are more important than those pertaining to many areas service".

1. The Board made certain findings of fact viz:
   
   

". the member was not treated for or complained of any bowel problems during his service,

. he was not treated for any exotic infection during service,

. on discharge he denied having had dysentry,

. the first recorded evidence of bowel trouble was in 1979, more than 30 years after service".

1. The Board concluded that, having regard to these facts and the medical opinion that factors in the development of carcinoma of the colon are genetic predisposition and western style diet, there were no grounds to relate the cause of death to the member's service.

2. In my view the applicant has not shown that the respondents took into account irrelevant considerations or failed to take into account relevant considerations. The reasons of the Board reflect all matters that were fairly before it. Nor did the respondents exercise a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. The Board purported to deal with the applicant's claim for a pension in accordance with the material before it and on the merits of the case; in my view this is what it did. In any event no exercise of discretionary power was involved in the decision of the Board. The applicant has not established that the exercise of power by the respondents was so unreasonable that no reasonable person could have so exercised the power. If it be the case that the respondents failed to apply the principles enunciated in Law, it is drawing a long bow to say that in consequence the exercise of power by the respondents was so unreasonable that no reasonable person could have so exercised the power. As I suggested earlier, the application stands or falls by the proposition that the respondents erred in law.

3. The applicant points to sub-s.47(2) of the Repatriation Act which requires the Board to grant a claim "unless it is satisfied beyond reasonable doubt, that there are insufficient grounds for granting the claim or application ... ". It is the applicant's contention that, on the material available to it, the respondents could not be so satisfied.

4. The implications of Repatriation Commission v. Law have been discussed by a number of judges at first instance. I mention in passing Repatriation Commission v. Bishop (1983) 48 ALR 461 and Repatriation Commission v. Compton (1984) 1 FCR 99 in which I attempted to deal with the situation of a death of a member of the Forces from a disease of unknown aetiology and the way in which sub-s.47(2) operates in such a case. But that matter is concluded for judges at first instance by the decision of the Full Court in O'Brien v. Repatriation Commission (1984) 1 FCR 472 which held that a real possibility of the existence of a fact may be left open by the evidence although there is nothing in the evidence which points to that possibility and that a claimant is entitled to succeed unless the respondent proves or disproves, as appropriate, essential issues of fact beyond reasonable doubt. The Court declined to accept the proposition that a tribunal (in this case the Administrative Appeals Tribunal) should be satisfied beyond reasonable doubt that there is no connection between war service and incapacity unless there is something in the material pointing to a real possibility of facts necessary to establish such a connection which is not disproved by other material.

5. The High Court has granted special leave to appeal against that decision and the appeal was heard late last year with judgment pending. The applicant urged that her application to this Court should not be delayed because of the appeal in O'Brien and I accepted that submission.

6. In my view the reasons for decision of the Board are at variance with the principles enunciated in O'Brien. There was medical evidence that it was possible that Mr. Black's diet on service and the effects of service lifestyle in the tropics may have been a factor in his death. There was medical evidence that it was possible that the carcinoma of the colon was service related though equally possible that it was not. In the light of that evidence and the other material before it, the respondents should, applying O'Brien, have concluded that they were not satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim.

7. The question then arises - what order is appropriate in this case? In my view there is nothing to be gained by remitting the matter to the Board for the conclusion is inevitable. There should be an order setting aside the decision made by the respondents on 10 May 1983 and substituting therefor a decision that the applicant is entitled to a pension by reason of her husband's death. I shall hear from counsel as to the precise terms of the order to be made.