Black, N.S.I v Repatriation Commission

[1993] FCA 383

IClc13

JUDGMENT No. ... 32. ....., I ........ ....

CATCHWORDS

REPATRIATION - "reasonable hypothesis" within S. 120 of the

Veterans' Entitlements Act - analysis of the way the Administrative Appeals Tribunal could properly approach the question whether an hypothesis was reasonable or whether facts raising it could be discarded beyond a reasonable doubt - circumstances where the findings and deficient reasons of the Tribunal led to the inference that it had applied the wrong test or was not in reality satisfied of the requisite matters.

ADMINISTRATIVE LAW - appeal in Administrative Appeals Tribunal
matter - discussion of requirement of Rules that grounds of

appeal be stated.

Veterans' Entitlenients Act 1986 (Cth) , S. 120

Federal Court Rules, Order 53, rr. 2 and 3

Australian Telecommunications Corporation v Lambroglou (1990)
12 AAR 515, discussed
Repatriation Commission v Whetton (1991) 31 FCR 531, applied

Bushel1 v Repatriation Commission (1992) 175 CLR 408, applied

NORMA SHIRLEY IONE BLACK v REPATRIATION COMMISSION

NG 2 of 1992

21 April 1993

Burchett J.
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )

1

1) NG 2 Of 1992

)

GENERAL DIVISION 1

BETWEEN:  NORMA SHIRLEY IONE BLACK

Applicant

AND :  REPATRIATION COMMISSION

Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 21 April 1993

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

In this matter the notice of appeal, which is an amended notice of appeal, states the questions of law raised by it in a number of ways, but contains as a ground of appeal only the following: the questions of law, if answered favourably to the applicant, will require either the granting of a pension to the applicant by this Court or a reconsideration of the

evidence and/or the taking of further evidence by the	Tribunal. I shocld explain that the notice of appeal was
filed in respect of proceedings in the Administrative Appeals Tribunal, and purports to have been filed pursuant to Order 53 rr. 2 and 3 of the Rules of the Court.
Rule 2(1) provides that an appeal to the Court from a decision of the Tribunal shall be instituted by filing a notice of appeal, which shall be in or substantially in the form numbered 55A in the First Schedule. Form 55A provides specifically for the specification of the grounds relied upon in support of the orders sought. Rule 3(2) provides that the notice of appeal shall state a number of matters; included among these, by para. (b), is "the question or questions of law to be raised on the appeal" and, by para. (d), "briefly but specifically the grounds relied upon in support of the order sought".
It seems to me to be plain that the present notice of appeal does not clearly state the grounds of appeal. However, those grounds can be gathered in a general way from the statement of the questions of law raised on the appeal. I was told, by counsel for the applicant, that the form of notice of appeal adopted in the amended notice of appeal was based on an interpretation of the decision of Ryan J. in Australian
Telecommunications Cor~oration v Lambroalou (1990) 12 AAR 515
at p. 524. I should say at once that I do not think Ryan J. had anything of the sort in mind.
Lambroalou's case was concerned with the striking out of portions of a notice of appeal by which it was sought to raise questions which were not questions of law. In the passage cited, Ryan J. made it clear that if a ground supplied in purported compliance with the rules indicated a question of law, it was not legitimate to rely on that fact in support of a statement of a question of law, purportedly made by the notice of appeal, which in fact did not relate to a question of law. In other words, one portion of the document could not be used to read down the other, since the rules required both a statement of a question of law to be raised by the appeal, and a statement of a ground of appeal. Nothing in that view qualifies the obligation to state a ground of appeal. It is true that his Honour went on to suggest that the statement of the questions of law might provide a background against which a ground of appeal could be stated. With that there can be no quarrel, but it is not a dispensation excusing a party from complying with the requirement to state a ground.
In the present case, the reasons for decision are extremely brief, covering only some ten pages, and counsel for the respondent fairly conceded that no question of prejudice arose from the adducing of argument upon the appeal by senior counsel for the appellant, and I have proceeded to hear the appeal, on the footing that the questions raised in argument were properly before me, without requiring the applicant to go through the motions of formally redrafting the notice of
appeal. That is a course which, I think, can only be justified by the circumstances and the particular conduct of
the matter, and should not be regarded as a precedent for failure to comply with the requirements of the rules, which I dispense with in this case only in those particular circumstances.
Turning to the substance of the matter, this is an appeal from a decision, as I have already indicated, of the Administrative Appeals Tribunal. It is therefore, of course, confined to questions of law. The issue before the Tribunal was whether the applicant was entitled to a pension as the widow of the late Douglas Black, who was a veteran with operational service, as those terms are used in the Veterans' Entitlements Act 1986. The question arises because Mrs Black claims that her husband's death was war-caused.
When Mrs Black's claim came before the Administrative Appeals Tribunal, that Tribunal was required to apply the provisions of S. 120 of the Act, subss. (1) and (3) of which provide :

" ( 1) Where a claim under Part I1 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.

of the incapacity of a person from injury or	(3) In applying subsection (1) or (2) in respect
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."

Some aspects of subs. (3) were the subject of observations in the joint judgment of the Full Court in Repatriation Commission v Whetton (1991) 31 FCR 531 at 515 to 516:

"First, as the concluding observation in the citation made in East v Repatriation Commission (1987) 16 FCR 517 illustrates, the antithesis of 'reasonable hypothesis' is not 'speculative hypothesis', but 'unreasonable hypothesis'. Indeed, a hypothesis is by definition speculative. In The Shorter Oxford English Dictionary (1980), the word is relevantly defined as:

'a supposition or conjecture put forth to account for known facts; esp [ie especially] in the sciences, a provisional supposition which accounts for known facts, and serves as a starting-point for further investigation by which it may be proved or disproved.'

And Blakiston's Gould Medical Dictionary (4th ed, 1979) defines hypothesis as 'a supposition or conjecture put forth to account for known facts'. Next, the explication with which the Full Court expressed its agreement in East expressly accepts, as reasonable, a hypothesis asserting a connection between death or incapacity and service which is uncertain 30th because it postulates a medical

principle ir. circumstances not known to have

definitely existed in the instant case, and because

the medical principle is one which science, although unable to describe it as unreasonable, is not yet able to prove definitely. What is required is 'some degree of acceptability or credibility', to make the hypothesis 'reasonable', and 'some support in [the] material' before the Tribunal, so that the hypothesis can be said to be 'raise[dIr by that material. Finally, not merely does the section not place any onus on the applicant for a pension - it does not require the formation of a positive opinion in the applicant's favour. To the contrary, a decision against an applicant is permitted only if the Tribunal is able to form the opinion that the material before it does not raise a reasonable hypothesis connecting the injury disease or death (as the case may be) with the circumstances of the particular service rendered by the incapacitated or deceased person."

In Bushel1 v Re~atriation Commission (1992) 175 CLR 408, the joint judgment of Mason C.J., Deane and McHugh JJ. points out (at 413) that subs. (3)

"is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of subs ( 3 ) , as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis."

Their Honours added:

"The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ('the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts

are true. "

As to whether a postulated hypothesis is reasonable, their

Honours said (at 414):

"However, a hypothesis cannot be reasonable if it is

'contrary to proved scientific facts or to the known phenomena of nature'. Nor can it be reasonable if it is 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.

But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable."

Of course, an applicant's claim will be rejected (as their Honours pointed out at 415) if the Tribunal "is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis."

In the present case, the deceased died at the age of 64 of metastatic carcinoma of the rectum. It is a fact of medical science, proved by the uncontradicted evidence of Professor Gabriel Kune, Professor of Surgery Emeritus of the University of Melbourne, that a number of studies have shown a statistically significant association between alcohol consumption, particularly beer consumption, and the subsequent development of cancer of the rectum. Professor Kune expressed the opinion:

"In my opinion, the late Mr Black's previous alcohol/beer consumption is likely to have been at least one of the factors contributing to the later development of cancer of the rectum. A reasonable

Black's death from cancer of the rectum and war	hypothesis can be raised between the late M r
service, provided it can be shown that his previous alcohol/beer consumption was in some way war service related."

On this basis, the widow relied on evidence that the deceased enlisted in the army in 1943 at the age of 17 years (having put his age up to 18) as a strict abstainer from alcohol whose parents were also strict abstainers. He was not discharged until late 1951, after service in Morotai and British North Borneo in World War 11, in the British

Occupation Force in Japan and in the Korean War. Between 1951

and 1956 when the deceased married Mrs Black, he continued to drink beer to excess to the extent that she, as the lady he wished to marry, in effect gave him an ultimatum requiring him to moderate his drinking habits. It is not suggested that he had become drug dependent, but rather that he was an habitual user of alcohol in significant quantities, and so as to affect his behaviour. During most of the next 20 years, he appears to have controlled the habit, except for regular occasions when he drank with friends in the army reserve. In 1979, he was diagnosed as suffering from diabetes, and thereafter he substantially gave up alcohol.

The deceased's older sister attested to the fact that "when he returned from Korea in 1951 he stayed with [her] and [she] noticed he was drinking heavily each night". Mrs Black gave evidence of her efforts to get him to reduce his drinking, and of occasions in the early 1950s when he put his

head in her lap and cried. She said it was a gradual process.	"He used to get very upset and he'd go for the drink when he
was like that." Asked: "Did he tell you why he was upset?" she answered:

"He seemed to be always in stress about something, about things. He just used - you know, he used to say often about killing when he was - he said in the 2/3 battalion you weren't meeting actual men, killing them, you kind of - I suppose, guns. It's a different type of warfare. But he said in the infantry, he said, you had to - you were actually meeting the man with your bayonet and that you'd walk down and, he'd say, he didn't want to kill them but, he said, 'If I don't kill them, they get me' so, he said, 'It's a matter of survival; you have to kill them.' He said he didn't like doing it."

Mrs Black said he told her this "to explain his upset and his drinking as a result of his upset". He also told her that he had started drinking during the war. Asked: "And did he tell you why?" She said:

"I don't know, he said everyone drank and he said, 'You never knew if you were going to be there the next day. ' He said, ' I had my mates drop dead by the side of me, shot' and he said 'All that stress'. He said 'You'd think, well it might be me tomorrow night. ' So he said 'When you drink you forget your troubles and go to sleep then."'

Not only did none of the deceased's family drink alcohol; Mrs Black did not touch it either.

In these circumstances Dr Greenberg, a psychiatrist, expressed the opinion:

"There is no indication of the late Mr Black

suffering a psychiatric disability as a result of his service experiences. While he well may have developed the habit of regular alcohol consumption as a result of his service experiences, there is no indication that he developed a state of chronic alcoholism in consequence; in fact, Mrs Black states that on her representations, he did reduce his alcohol intake prior to their marriage in

1956. "

He concluded:

"From the information available, the late Mr Douglas Black developed the habit of regular and considerable alcohol ingestion during his army service and continued this at least up to shortly before his marriage in 1956."

These statements were made in written reports. In oral evidence, he was asked:

"Now, on what you were told in the interview and what you've heard today, do you consider that period of service had something to do with this drinking habit?"

He answered:

"Well, the information I had was that he did not drink prior to enlistment; that he presumably started to drink during his army service; at what point is not clear but from general knowledge he would easily have got into the regular habit of drinking with fellow army people and that this continued up to the time of discharge and subsequently until Mrs Black indicated that she couldn't tolerate the degree of his drinking and he then reduced it."

Dr Greenberg preferred to described Mr Black as "habituated",

rather than "addicted".

The Repatriation Commission called evidence from a Professor Heather of the National Drug and Alcohol Research Centre. He commented:

"With respect to the references to the veteran's heavy drinking while with the British Commonwealth Occupation Force in Japan, it should be noted that this was after the end of World War I1 and could not therefore have been an immediate response to the stress of active combat, although it could of course have been a delayed reaction to that

stress. "

Professor Heather concluded that Mr Black's drinking following his return from Korea, "may have reflected drinking behaviour learned during service", but he pointed out that M r Black was thereafter able to reduce it considerably, and he said:

"Even assuming the existence of heavy drinking during service, and the cause of this heavy drinking as related to the conditions of service, there is no evidence that heavy drinking after 1951 was related to the conditions of service."

On this evidence, it is plain that there was raised the hypothesis of a sufficient association between Mr Black's war service and his death, by virtue of the circumstances of his drinking habit and of his death. The facts which raise that hypothesis were the following:

1.    He died of a particular form of cancer, the development

of which on the uncontradicted medical evidence was contributed to by his previous consumption of alcohol,

and particularly beer;

1. He had entered the army as a totally abstaining member of a totally abstaining family, and had thereafter undergone extremely stressful combat experiences, as well as close contact, in zhe conditions of army life, with other men who consumed substantial quantities of alcohol. He had developed during this period, which lasted for eight years, the habit of drinking somewhat to excess, as evidenced both by his drinking when on leave and his drinking when discharged at the end of the period;

3.   After a few years of civilian life, and with the assistance of his wife, Mr Black succeeded in significantly reducing his habit;

4.   Psychiatric opinion in the case accepted that heavy drinking could have been a reaction to stress (Professor Heather), and that Mr Black "well may have developed the habit of regular alcohol consumption as a result of his service experiences" (Dr Greenberg).

It was open to the Tribunal, confronted with this hypothesis, to question whether the hypothesis was reasonable, and to question whether any of the facts alleged to raise it could be discarded from consideration beyond a reasonable doubt. Unfortunately, it does not seem to me that the Tribunal went about its task in either of these ways. It described the critical issue in the following terms:

"What the Respondent did challenge was the

submission that the deceased's consumption of alcohol post service connected with his war

service." (Emphasis added.)

There are at least two problems with this formulation of the issue. It sets the standard far too high, that is, it asks whether a connection was shown, not whether the hypothesis of a connection was reasonable. Secondly, it confines attention to consumption of alcohol "post service." Nothing in Professor Kune's evidence confined attention for the purposes of the hypothesis to alcohol consumption during a recent period, or a period which excluded the time of the deceased's war service. The Tribunal accepted that the deceased "was

drinking heavily at the time of his discharge", from which it must follow that the habit had been established by then, and inevitably, that he had been drinking alcohol from some time

be£ ore.

The Tribunal criticised the evidence suggesting that a cause of Mr Black's drinking during his service was the stress of the imminent threat of death. The Tribunal pointed out that the particular stress relied on would not have applied during his period as a member of the occupation forces in Japan. It is difficult to understand this comment, which appears to trivialize Mrs Black's case based on the real stresses of military service during World War I1 and during hand-to-hand combat in Korea. A lull in between these two periods of service does not at all deny the reasonableness of

comment ignores Professor Heather's concession that "of	the hypothesis in question. Furthermore, the Tribunal's
course" Mr Black may have indulged in heavy drinking in Japan as "a delayed reaction to that stress", that is, the stress suffered during World War 11.
The Tribunal emphasised that the psychiatric evidence denied "any significant degree of alcohol dependence", and the Tribunal accepted that "whereas the deceased had a habit of drinking, he was not alcohol dependent". It is not clear to me what significance the Tribunal attached to this distinction. Professor Kune did not suggest that the relationship he saw between alcohol consumption and cancer of the rectum had anything to do with drug dependence. The professor's report makes it plain that he realised the beer consumption of which Mrs Black spoke was "during his service years", and after his discharge in 1951 "frequently and heavily until their marriage in December 1956 when she strongly requested that Mr Black decrease his alcohol intake". Professor Kune was aware that alcohol consumption was said to have decreased thereafter, and further after 1979. He specifically negatived stress as being, considered by itself, a factor in the development of the cancer on the very ground that the stress of war service had occurred too long before, but he made no suggestion that any part of the beer consumption should not be taken into account for the same reason.

The Tribunal made a specific finding:

"There is no real evidence upon which to find that the deceased's partaking of alcohol arose out of or was attributable to his war service as opposed to the mere temporal connection." (Emphasis added.)

This proposition is also difficult to understand. The Tribunal had the evidence of the psychiatrists, suggesting that the stress of war service may have led to drinking. There was, too, Mrs Black's evidence that Mr Black had complained in vivid terms of this stress and of its effects, and that he had also asserted the influence of the men around him who drank. But, in any case, the Tribunal has again misstated the issue. The question is not whether there was evidence upon which it could "find", as a fact, that the consumption of alcohol was attributable to war service, but whether there existed a reasonable hypothesis that this was so.

The Tribunal acknowledged that "the hypothesis does exist that the deceased commenced to drink on service due to the exigencies of that service", but went on to find:

"I am however, satisfied beyond reasonable doubt that there was nothing attributable to the deceased's service which caused or contributed to his drinking post service."

This, as has been pointed out, is to ignore a substantial part of the consumption of alcohol which is in question. It is also to ignore the whole matter of continuity. Possibly, a

continuous course of conduct may be broken up, so that the	conduct at the end of the continuous period is not to be
attributed, in any way, to factors which existed at the beginning of the period; but if this is to be asserted rationally, there needs to be some discussion, and reasons need to be advanced for the conclusion. No reason at all is here advanced for an arbitrary drawing of a line at the moment when the deceased ended his service.
The Tribunal's decision was quite brief. It contained the findings to which I have referred, findings not logically significant for the ultimate conclusion, and it contained some discussion of the medical evidence and of the facts of the case. The following conclusions were then stated:

"It may well be that at the time the deceased was discharged from the service he had commenced a pattern of drinking which would have been dangerous had he continued but due to the intervention of the Applicant that pattern was broken. Whatever may have been his pattern of drinking thereafter, I am satisfied it was not caused or contributed to by the circumstances of his service.

1 find that the Respondent has negatived beyond

reasonable doubt sufficient facts to enable me to form the opinion that the material before me does not raise any reasonable hypothesis connecting the death of the deceased with his war service. This being so I am deemed to be satisfied beyond reasonable doubt there is no sufficient ground for determining that the death of the deceased was war- caused.

The decision under review will be affirmed."

There is simply no evidence that the "pattern was

broken", in respect to the deceased's drinking, as suggested

persuaded the deceased to reduce his drinking, although it	in this passage. All that was evidenced was that Mrs Black
continued when he was brought in contact with a peace time continuation of his military service, that is, the military reserve. Even more fundamentally, the Tribunal seems to have repeated its earlier error of confining attention, for the purposes of the ultimate decision, to the later stages of the deceased's drinking. No finding was made that his consumption of alcohol during his service, and before the establishment of his relationship with Mrs Black, was not contributed to by his war service. But the Tribunal seems to have thought the appellant's hypothesis would be destroyed by a finding that the later drinking was not war-caused. There was no basis in the evidence for this bifurcation of the alcoholic consumption for the purposes of the hypothesis linking it, and the deceased's war service, with his death from cancer of the rectum. In particular, there is no medical evidence to justify the assumption that the drinking of alcohol before Mrs Black persuaded Mr Black to reduce his consumption was not already dangerous in the sense that it posed a statistical risk of the ultimate development of cancer of the rectum. At the same time, it should be said that the further assumption, which appears to underlie the decision, that the deceased's continued drinking in later life, particularly in circumstances of continuing contact with army friends, would not have been linked with his previously established drinking habit, is also an assumption not justified by any evidence.
The final conclusion that the respondent had negatived "sufficient facts" to destroy the hypothesis, as a reasonable hypothesis, is stated without specifying the facts said to have been negatived. It must be assumed, as counsel conceded, that the Tribunal was speaking of the propositions it had discussed earlier in its reasons. If this is so, I note that none of the facts which I have set out as raising the hypothesis in question is held to have been negatived in the reasons of the Tribunal.
The decision on the facts was, of course, for the Tribunal. It is not sufficient to justify setting it aside that it involves error of fact. However, in this case an analysis of the Tribunal's reasoning about the relatively short and simple evidence adduced shows that there were findings in the absence of evidence, there were misstatements of the issues, and there was a failure to deal at all with the real issues. The final conclusion simply cannot follow from the extremely restricted findings made earlier in the reasons, which did not touch the central question of the reasonableness or otherwise of the hypothesis linking the deceased's consumption of alcohol, during and in the period immediately following his war service, with the incidents of that service. It is not at all clear from the reasons why this was so, or why the hypothesis was rejected. In the circumstances, what was said in the joint judgment of Mason C.J., Deane and McHugh JJ. in Bushel1 (at 422) is applicable:

"In these circumstances, a finding that the hypothesis was not reasonable, although a matter

the ambigu~us nature of the Tribunal's reasons	for the tribunal, is surprising. The finding and
raise the inference that it applied the wrong test or was 'not in reality satisfied of the requisite matters'."

In my opinion, the decision of the Tribunal is vitiated by the errors of law which have been identified in these reasons, and must be set aside.

I order that the decision of the Tribunal be set aside, and that the matter be remitted to the Tribunal, differently constituted, to be decided according to law. I order that the respondent pay the applicant's costs of the appeal.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of his Honour M r Justice Burchett.

Associate: 8eCq P~ZWL&

Date: 10 June 1993

Counsel for the Applicant:	Mr A.T. McInnes Q.C. with Mr C.A. Vindin
Solicitor for the Applicant:	Mr K. Harrison
Counsel for the Respondent:	Miss R.M. Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of hearing:	21 April 1993