Brown v Repatriation Commission

CATCHWORDS

Bdminlstratlve Law - Judlcial Revlew - Repatriatlon Act - death of

former member of Armed Forces

from carcinoma - refusal by Repatrlation

Review Tribunal to qrant applicant’s clam for

war wldow’s penslon -

whether on appeal to Federal Court the whole declsion of the Trlbunal

was open to review bv the Court

- whether an the evidence before

the Tribunal could conclude that It

was established beyond reasonable

doubt that the

member‘s death dld not arise

out of or was not

attrll?ut,ible to war service.

Repatriatlon Act 1920:

ss . 31, 47, 101. 107VC. 107VG. 107VZZH.

Federal Court of Australia Act 1976: S. 19.

Income Tax and Socid Servlces Contribution Act

1336: S. 196(1).

Admmistratlve appeals Trlbunal Act

1475: S. 44(1)

SARAH SYBIL BROWN	v. THE REPATRIATION COMMISSION
WdG 6 3 of 1984

BOWPI S. J. , FISHER & LOCKHART JJ.

7 JUNE 1985

SYDNEY

IN THE FEDERAL COTJRT OF AUSTRALIA	1
)

AUSTRALIA

WESTERN

)

No. WAG

63 of 1984

)

REGISTRY	DISTRICT	)
)

DIVISION

GENERAL

)

ON APPEAL FROM THE FEDERAL COURT OF

AUSTRALIA

SARAH SYBIL

BRlOWN

Appellant

THE REPATRIATION COMMISSION

Respondent

JUDGES MAKING ORDER:	BOWEN C.J., FISHER and LOCKHART JJ.
EATE OF ORDER:	7 JUNE 1485
WHERE MADE:	SYDNEY

MINUTE OF ORDER

THE CfiUFT ORDERS

THkT:

The appeal

dlsmissed.

7	The appellant. Sarsh	Syb l l Brown, pay to che respondent, The
I.

Repatrlation Commlssicn,

~ t s

costs of the appeal.

C J O T E :

Settlement and e n t r y

of orders is dealt with in Order

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA

)	No. WAG 63 of 1984

REGISTRY

UISTRICT

1 1

DIVISION

SEIEPAL

ON ".PPE.AL FRGM THE FEDERAL C0UP.T OF

AUSTRALIA

SAR9H SYBIL BROWN

Appellant

THE REPATRIATION COMMISSION

Respondent

Bowen C.J., Fisher and Lockhart	JJ
7 June 1985

REASONS FOR JUDGMENT

THE CGURT

This 1 s an

appeal from a Judgment of a

sinule Judqe of thls

Court (Toohey J . i dismissing the appellant's appeal

from a decision nf

the Repatriation Renew Trlbunal ("the Trlbunal") that chere were

insufficient urounds for urantinu the appellant's

clam for a penslon

under the Repatriation Act

1420 ( "the Act").

The appellant S late husband

("the deceased") died on 27

eprll 1974. He was a

member of the R.A.B.F. from 11 March 1444 to 18

May 1945 and served

m New Gulnea from

11 March 1945 to

28 April 1945.

The cause

of his

death was fulmmating Infection due to widespread

malignancy from carclnoma

of the rectum. The appellant lodged a claim

for a pension on 24 Auqust 1974.

The clam was rejected by the

Repatrlation

Board

on 26 September 1974 and

appeals

the

Repatriation Commisslon were subsequently dlsallowed.

There

was a

further appeal to the War Pensions Entitlement Appeal Tribunal which

was dlsallowed In 1978.

On 17 February 1981 the appellant requested the Commisslun to

reconslder its earlier declsion pursuant to sub-S.	31(1)	of the Acr:
whlch provides as follows:-

"(1)

GIhenever it

appears to the Commission that.

under

chls

Act,

sufflcient

reason

exists

for

ceviewlngr any assessment, decision

or determinatlon

relation

penslon

(other

than

a service

penslon) the Commlssion may review the assessmenc.

decision or determmation."

The Commlssion decided

that

it did not conslder sufficlent

ceasons exlsted for

It to renew the case. The appellant then applled

t o the Tribunal pursuant to S.

107VC of the Act for

a revlew of the

Commission's

latest

decision.

The Trlbunal

consldered

that

the

reasons of the Commlssion for rejectinu the appellant's

clam and the

medical

opinlons

whlch they

were

based

established

beyond

reasonable doubt that the deceased's

death dld not arlse out

of or was

not sttriktable

to hls war service.

The Trlbunal therefore decided

that, the appellant was not entltled to

a pension under S. 1131 of the

Act. On appeal to this Court from that declsron of the Tribunal the learned primary Judue held that It	was open to the Tribunal to make
that decision.

3 .

The	appellant's argument on appeal to thls Full Court was

twofold. First. It

was submltted that, provided some question of law

is lnvolved

m the declslon of the Tribunal,

the whole decision. and.

not merely the question

of law,

1 s then open to

renew by the Federal

Court. Counsel relied heavlly

a stream of authority

in the Hiuh

Court to the effect that, where a declslon of

a Board of Review made

under the Income Tax and Soclal Services Concribution Assessment Act

1336 ("the Assessment Act") Involves a question of law, then the whole

case, and not merely the question of

law, 1 s

sub3ect to

an appeal

broucrht from that decision to the court

havinu 2urisdiction

to hear

the appeal and is then open to review: Ruhamah Prooertv CompaE

Limited v. The Federal Commissloner of Taxation (1923) 41 C.L.R. 148:

-	Kv. Federal Commlssioner of Taxation (1971) 45 A.L.J.R. 249; X a
Ptv. Limited v. Federal Commissioner of Taxation (1971) 124 C.L.R.
343.

Counsel for the appellant submltted that,

as the Iurisdiction

that the Federal Court

exercises on

appeal from decisions

of the

Tribunal 1s wlthin its orlainal. not Its appellate. lurlsdlction (see

Federal Court of Australia Act 1376, sub-s. 1 9 ( 2 ) ) the parties are not

llmited

t o

the material

whlch

was before the Tribunal, but are

entitled to adduce before this Court fresh evidence in support of or

in answer to the appeal.

In our npinlon there

1s a

fundamental difference between

appeals brouqht from decrsions of Boards of Review tc Supreme Courts

pursuant

to S.

196 of the Assessment Act

and appeals brouuht from

decisions of the Tribunal to the Federal Court under the Act pursuant

S. 107VZZH.

In the former case the relevant provislon (sub-s.

196(1)) provides:-

"(1) The Commissloner or the taxpayer may apFeal that involves a question

t'o a

Supreme Court from

anp

declslon of the Board

of law."

Sub-section

1 0 7 V Z Z H ( 1 ) of the Act

1 s

cast In

materially dlfferent

languaue ,-

namely :

"(1)

An appllcant In a proceedins

before

the

Trlbunal or Federal Court of Australia, on a question of law.

the

Commlssion

mal7 appeal to

the

from

any

declsion

the

Trlbunal

that

proceedina.

The lanuuage of S . 196 supports the view that It is the whole

decision of a Board of Review that 1 s subject to appeal to a Supreme Court provided the declsion Involves a questlon of law.

This is the

construction which the High Court has placed upon

S .

196

for many

years. but we see no warrant for transferrlng that reasoning process

to S. 107VZZH which 1s couched in very different terms.

The exlstence of a question of law is not merely a qualifyinu condltlon to ground an appeal from a declsion

f the Tribunal; rather,

it and It alone

1s the subject matter of the appeal. and the ambit of

the appeal is confined to it. Althouuh it is necessary In some

appeals pursuant to

S . 107VZZH for this Court to conslder the evldence

before the Tribunal

(for example. where the alleged questlon of

law 1 s

that there

is no evidence upon

rJhlch the Tribunal could reasonably

support its finding) the Court should be cautious before embarking on

its own analysis of the evldence where the task of assessing

facts has

been placed by the legislature In the hands

of specialist bodles such

as the Tribunal and the Commission which are equipped to deal with

them.

Thus the lanuuaoe of S. 107VZZH. the leulslative framework In

which the section appears and the role played by appeals to the

. - - .

Federal Court from decislons

of the Trlbunal

lead. us to reiect the

submlssion of counsel for the appellant. But there

are other indicla

In the relevant provlslons

of the Act which confirm our vier?.

m e n the Commission or a Board hears and conslders

a claim or

appllcatlon the Act expressly provldes that it

not bound

technlcalities, leqal forms or rules of evidence and that it shall acc

according

substantial clrcumstances of the case and shall take into account

justice

and

the

merl'ls and

all

the

any dl

fficultles

that for any reason would lie in the way of ascertalning the

exist nce

of any fact,

matter, cause or circumstance: see

sub-S .

(1) in the

case of the Commission

or Board and

S . 107VG m

the case of the

Tribunal.

The Act macs

no slmilar provlsion with respect to appeals

to the Federal Court from d-cislons

of che Trlbunal.

I F the legislature mtended thls Court to nave

a Tenera1

power of review of the Tribunal's declslon one vould expect

to find a

provlsion

relatinu

the

Court

slmilar

sub-S. 47fl) and

107VG.

review by thls Court In the absence of a similar pronsion

- 6 .

the Act

with

respect to the Court would lead to the

renew

procedure becomlnu unbalanced and productive	of confuslon, uncertainty
and perhaps Inlustice.

There are sound reasons why the legislature has not applied

provlslons such as

sub-S. 47(1) and S . 107VG to the Court in its

appellate role pursuant to

S . 107VZZH.

The Court is

a court of law

and, although exerclsing its oriumal 2urisdictlon. is hearlnu appeals on questions of law from decisions of the Tribunal. The Act contains

an elaborate structure for

considermu and determininu facts

applications and claims for penslons and other entitlements under the

Act.

To add to thls structure the Court

as yet another of the bodies

charued wlth thls	factual	assessment	would	be	a work of
supererouatlon.

Also. althouah the Court shall hear and determlne the appeal

and make such order

as it thinks approprlate by reason of its decislon

(sub-s. 107VZZH(4)). sub-s. 107VZZH(5) provides:-

" ( 5 )

Wlthout

llmltlng

lmplicatlon

the

qeneralltg of sub-section

( 4 ) . the orders that may

be made by the

Federal Court of Australia

on an

appeal Include an

order afflrmlnu or settlnu aslde

the decision of the Tribunal and

order remitting

the case to be heard and declded auain. elther

wlth

or without the hearing of further evldence. by the

Tribunal in accordance with the directlons of the

Court.

The lanuuaue

of sub-S.

(5) does not sit easily with the notion that

the Court conducts

a general renew of the Trlbunal's declslon: but It

is entlrely consonant with the view that the sublect matter and scope

of the appeal is limlted

to a question of law and does not operate

a rehearing of the whole matter.

A more

apt analogy to appeals pursuant o

S. 107VZZH of the

Act than appeals pursuant to

S. 196 of

the Assessment Act is to be

found In appeals to thls Court from declsions

of the Administratlve

Appeals

Tribunal

pursuant

sub-s.

44(l) of the

Admlnlstratlve

Appeals Tribunal Act 1975 which provldes:

"A party to

a proceeding before the Tribunal may

appeal to the Federal Cour t of Australia, on a question of law, from any decision cf the Tribunal

In that proceeding.

I '

That sub-sectlon is cast in substantially the same language

as sub-s. 107VZZH(11 of the Act.

has been held that appeals under

sub-S.

4 4 t l ) of the

Adminlstrative Appeals Tribunal

9cc 1975 are more

lmited

I n scope

than those under

sub-S. 196(1) of the Assessment Act: Elackwood Xodae

(Australia) Ptv. Ltd. v. Collector of Customs (New South Wales) (1980)

47 F.L.R. 131: Coinmittee of Dlrectlon of Fruit MarketKa v.

Australian Postal Commission (1979) 25 A . L . R . 221 per Northrop J. at pp. 232 and 233.

Accordlngly, in our opinion the appeal to this Court from

the

decision

the Trlbunal which was heard by the primary Judue

1 s

llmited to questlons of law	and did not extend to	a qeneral rehearlnq
of the matter.

8 .

The second attack made by counsel for the appellant upon the

reasons for judgment of the primary Judge was

that, notwlthstandlng

the concession

of the appellant that the Tribunal posed the correct

test (i.e. whether It was satisfied beyond

reasonable doubt that the

deceased's death did not arise out

of or was not attributable to var

service)

it went astray on the material before it in

reachmu

concluslon adverse to the appellant and that Toohey	J. erred in not	so
holding.

It	is necessary to refer in some detall to the Tribunal's

findings of fact and to Toohey

J.'s assessment of those

- findlnqs.

The Tribunal, in an extensive review

of the facts. referred

to the medical history

of the deceased goin? back to his war service.

The prlmary Judge noted that there is nothinu in the medical records relstlns to the deceased's perlod of ellulble servlce of any apparent relevance to the cancer from which he died except for a reference to

malaria. The Tribunal said of thls:

"After his dlscharge he had one bout

of malaria in

J u l y

1945

and

reported

aualn

with

malaria

November 1945 but the diagnosls of malaria was not confirmed.

Further, the Tribunal ncrted that accordmu to the deceased's

"own

statement at discharue he had not suffered malaria

...

service.

9 .

It was not until

1973 that carcinoma

of the rectum

5-3as

diagnosed.

Dr. Waters, a phpsiclan, noted on

19 July

1973 that the

deceased started to develop diarrhoea in January

1973 and he said:-

"Rectal examlnation reveals a mass in the anterior

wall of the rectum which feels	like a carcinoma.
. . .
Diaunosls: Probable Carcinoma	of the Rectum."

The primary Judged noted that this diagnosis was

confirmed

and that the deceased died the following year.

The appellant's case before the Trlbunal, before the primary

Judge and before us placed heavy emphasis upon two reports furnished

Dr. Hainsworth

of the State Health Laboratory Services.

It 1 s

important to note that the medlcal opinions

which were before the

-. .

Tribunal were from doctors who had never examined the deceased but who

had read the departmental

file relating to him. These doctors

were

not called as witnesses before the Tribunal.

The first report of Dr.

Hainsworth of

11 June 1975

stated that he

had read the file on the

deceased and could find.

"no

dlrect assoclation between his termlnal

csrclnoma and his death". This was

obviously

erroneous and was

corrected bp

Dr. Hainsworth In

hls later report in

whlch

he stated

that he meant that he could find no dlrecr: assoclation between

r:he

deceased's terminal carcinoma and	his war	service. in hls first
report Dr. Hamsworth said:

"However the causes of carcinoma of the rectum are

unknown and there could have been some aspect of

his war servlce

which predlsposed hlm to subsequent

development of carclnoma.

There is some evldence to show that the development

of tumours may be related

to alterations in

person's immune mechanisms as the result of chronic

infection e.g. malaria.

There is no way to prove

that this man's

death was not the result of hls

war

service and this should introduce sufficient doubt

for your appeal to succeed under Section

47 of the

Repatriation Act.

Dr. Martln, a

Senior Medical Offlcer (Appeals) made

a report

on 31 Julv 1975 in which he

said:-

"I have read the veteran's

file, Including the

Advocate's araument,

dated

17.6.75,

and opinion

dated 11.6.75, by Dr. D. Hamsworth, in

the

summary. ...

Dr. Hamsworth speculated that there

may have been some aspect

of war service which

predisposed the deceased to subsequent development

of carcinoma. The veteran had short service and

was discharged fit. There wa5 no abdommal and

bowel complaint recorded In the service documents,

nor in the early post-war years.

Tiiere

was some

evidence that	the veteran had malaria in	1945 on
one occasion.

There is no evidence in the veteran's file that

immune mechanisms were interfered wlth. If war

service had interfered with his immune mechanisms one would have xpected hlm to have been Incapacitated by infections at an early age. or for him to have succumbed to a fatal disease much earler than hls age of death. of 69 years. In

fact, the D.M.O. attendln? him in hls final illness

commented on his apparent resistance - 26.4.74,

page 182, 'He is definitely going down

hill (Altho'

I appear to have said thls before), and thls is	a
month later'.

There is

no known medical connectlon between the

disabllity

lumbar-sacral

pain

and

sciatica

dating back to

1944, and lumbar-sacral pain and

sciatica arising from carcinoma

of the rectum. The

veteran had two types

of pain. one associated with

his A/D polyarthritis,

and the other assoclated

with

the malignancy

._. The illness occurred too

long

after

war

service

related--to war

service.	In my opmion the veteran's death was
N.D.W.S."

11.

This lastmentioned reference stands for "Not

Due to

Mar

Service".

In his report of 8 March 1978 Dr. Hainsworth disagreed wlth the opinlon given by Dr. Martin.

Dr. Hamsworth said:-

"In those carcinomas where aecloloqical factor5 are

known there is often

a surprlsing length of time

between exposure to the aetlological factor and the

development of carcmoma.

For example a particular

tumour of the lung resulted from minor exposure to

a certaln type

of asbestos, the

tumours

never

develop m

less than

20 years after exposure and

sometimes the Interval is as long as 40 years.

is also qulte well known that malignant cells can

lle dormant for many

years and this feature can

again spread the length of time between inltlation

of the tumour and clinical evidence of	It.
. . .

In the face of the gradually increaslnq amount of

information about he aetloloay of mallunant

dlsease it is unwise to be doqmatic and say that

certain

period

a patient's

life

had no

slgnlficance. There 1 s no way to prove that this man's death was not the result of his war service

and I feel that the doubt thus introduced should

resolved in favour

of the appellant."

In a later report of Dr. Martin dated

7 June 1976 he said:

"I have read the

veteran's

files again, includlng

the

Advocate's

arqument. dated 22.3.76 with

enclosures - medical oplnlon date& 8.3.76 by

Dr. D.

Hainsworth ... There is no medical evidence to

incrimlnate war service

as an

aetiological factor.

Dr. Hamsworth

8.3.76 disagrees with my statement

'thac because the Illness occurred

long after

war

service

that

lt cannot

war

service'.

He supported hls oplnion by referrlna

two situatlons that are not related to the present

argument ... The tlme

relatlonship

between

the

onset of the lnitiatinq carclnogenic stimulus and

12.

the appearance

cllnlcal symptoms is unknown.

There is no medical evldence to

incrimmate any

factor of war service in the initiation	of the
veteran's cancer.

If the veteran had pain from cancer of the recto-sigmoid present for many years before diaqnosed, I consider other symptoms would have

made the diagnosis obvious, such

as alteratlon of

bowel habit and bleedins.

... I n my opinion r;he

veteran's death was not due to war

service."

Dr. van den Brenk made a report dated 25 January

1582.

was also a Senlor Medlcal Officer (Appeals). The Trlbunal said chat:-

"Dr. van den Brenk qraduat5.d M.B.B.S. (Melb.) D.T.R.E., F.R.C.S. (Eng.) F.R.A.C.R. He holds

speclallst

dearees

urger~r

and

radiation

oncolouy.

He was Professor

of Cancer Research

London University coupled

with Director

of the

Richard Dimbleby Laboratory

of Cancer Research, St.

Thomas' Hospital, Medical School and Consultant

Physician. St. Thomas' Hospital, London. He was

employed

for

over

30 years smce 1547 in

the

treatment and investigatlon

mallqnant diseases

and

been

responslble

for

the

Initiation

and

direction of

Cancer

Research

Laboratories

and

clinical Research units In Oncoloqy in London and Melbourne as well as holding Consultant posts at a

ma?or London and Melbourne

teachmq hospitals. The

Tribunal find that

he is emmently qualified."

The prlmary Judae summarlsed Dr.

van den Brenk's report

these terms:-

"There ie no record of Mr. Srown haTr>.ng any disease

the alimentary tract

during

the

perlod

eligible servlce.

There are certam risk factors,

believed to predispose

to cancer of the rectum

colon,

but the deceased dld not develop these

diseases.

had

some

Infection

illnesses

service but none caused immunosuppresslon. In any event there is no evidence that immunosuppression

causes

cancer.

If a

person

became

severely

depressed

through

beinq

unable

mount

effective immunologlcal response to a

new forelgn

13.

antlqen, such haematoloulcal dlsease wlth panhaemocytopenia and

a person would

have

a gross

be in a state of health comparable to

an indlvldual

dying from letliZl---irradiation. He would certain1:J

not survive for another	29 years.	Dr. van den
Brenk's conclusion was:

'In my opinion to submit that the member

became

immunodepressed

service

(whether or not this

has

any bearinq-on

the aetiology of cancer development)

patently

false.

Refer Dr. Martln's

opinion (31.7.75) which I endorse'.''

The Tribunal said of Dr. Hainsworth's two reports that they:

member's file and thus could be considered as 'I ... were not based on any recorded evidence on the

speculative as to a causal relatlonship to war service of the disease that led to the death of the

member In this case.

Furthermore the Act does not

require proof absolute. rather it require5 a proof

beyond reasonable doubt."

The Tribunal attached considerable weluht to the evidence of

Dr. Martin and Dr.

van den Brenk.

The Tribunal sald of Dr. van den Brenk:

"The Tribunal

find that he

1 s eminently qualified

and has pven compelling reasons to rebut

the

opinion expressed by Dr.

Hamsworth and on that

basis the Trlbunal find that the evidence of Dr.

Hainsworth has been destroyed

by Dr. Martln and Dr.

van .I=n Srenk in reGard to this speclfic case."

The prlmary Judqe said:

"While one mlaht cavll

at the use of

the

term

"destroyed", there

can

doubt

that

the

Trlbunal accepted. as it was entitled to. the evidence of Dr. Martin and Dr. van den Brenk and not that of Dr. Hainsworth."

14.

The Tribunal had before It

a paper given by Sir Edward Dunlop

entltled "The Acceptance of C

Mar Caused". Speaking

of Sir

Edward Dunlop's paper dated

1970 the Tribunal said:

' I . .. the Trlbunal acknowledges the eminence

of Sir

Edward in Cancer Research but finds that this

reference is a general paper on cancer and does not

relate

speciflcally

the

case

under

renew.

Certain claims In the paper relate to

the disease

from whlch Mr. Brown, the member, died but Sir strong assoclation to ulcerative colltis and to a

lesser

extent

dysentery

and

Irrltable

colon

disorders. None of these diseases appear in the

member's medlqal records."

The prlmary Judge found that the Tribunal's assessment of the

relevance of Sir Edward Dunlop's paper to the claim before It was

assessment which was open for the Tribunal to make.

Th Tribunal said

that it "must find for the applicant and set aslde the Commlssion's decislon unless it is satisfied beyond reasonable doubt that there are

lnsufflcient grounds for granting the claim".	The Tribunal s a d thac
It found as facts:

' I .

the member dld not

suffer durlng war service

from chronic lnfectlon

of any k m d which mlght have

presumed to have altered

his immune mechanisms.

there

evidence

showinq

any

Immune

def lciency

er any

relatlonship

between

rmmuno-deficiency and the member's carcinoma of the

rectum from which he died.

'No evidence'

course is not the test to

applied. Rather the test

1 s :

' Is there evidence

disproof?'

and

the fact that

there is 'no

evidence' is one of the factors that the Tribunal must take Into account when decldlnu for itself

whether the Commission's

onus of dlsproof beyond

reasonable doubt has been

dlscharged.

15.

The Tribunal concluded wlth reference to the reasons

of the

-- -

Commission for rejecting the

clam:

' I . . .

those reasons and the medical opinlons

which thev' were based establish beyond reasonable

Counsel for the appellant

submitted that the present case

was

one where It was not known one way

or the other whether or not some

incident In

the deceased's war service was related to

the ultimate

development of hls cancer and that in those clrcumstances the claim

for pension must be granted because the possibllitp that war servlce

had contrlbuted to the cancer had not been negatlved beyond reasonable

doubt.

Counsel

relied

upon

the

joint

Iudqment

of Keely

and

Fitzqerald JJ. in

O'Brien v. Repatrlatlon Commission (1984) 53 A.L.R.

477, where their Honours said

at pages 504 and 505:-

"If there is no material in respect of a fact. or

if the materlal

1s neutral In the sense that it

leaves the existence of the fact unknown, there is

rational

basls

for

a choice betwek the

conclusicn

that

the

fact

does

exist

and

the

conclusion that it does not.

The non-existence of

that fact is

not. the only ratlonal conclusion.

There is no	need that there a l so be materla1 which
points to a	'real' posslbllitp of the existence of

that fact.

That 'real' possibilltp 1 s left open by

the evidence.

Thus, it

Inay not be established beyond reasonable

doubt that Incapaclty or

death is

not 'connected

wlth' war service either because there is material

16,

which rsolnts positively

a cause of

the

incapacity

or death

which is or might

'connected'

(as, for

example, in m,

and

Morcombe),

or because of some inadequacy in the

material to show the absence of

a connection."

O'Brien's Case went on appeal to the

High Court (Iudgment 27

February 1 9 8 5 ) .

Gibbs C.J., Wllson and Dawson

JJ. approved thls

passage from the joint

~udqment

of Xeely and FitzTerald

JJ., but

sald:

"Two matters should

however be

made clear. The

first is

that

although their Honours spoke of the

disproof of

a fact, S.

4 7 ( 2 )

does not require the

Tribunal to grant

clalm unless It

is satisfied

beyond reasonable doubt of the non-existence of

every

evldentiary

fact.

The

question

for

the

Tribunal is whether it is satisfied, beyond all

reasonable doubt, that there are

insufficlent

grounds for granting the claim: it wlll dlsallow

claim If it

1 s

satisfied beyond reasonable doubt

that 'any fact necessary to establlsh entitlement'

(Law, at p.652) does not exlst."

The present case is not one of either neutral or confllcting medical evidence. Drs. Martin and van den Brenk addressed themselves

speclfically to the medical history

of the deceased

as revealed by che

medlcal records. They dld not

slmply conclude that the aetlology of

the

disease

was

unknown.

Each

those

medlcal

pracclLioners

concluded that, had the carcinoma been attributable to or arlsen out

of the

deceased's war service. i t s symptoms would have been apparent

much earller than they were. Of

Dr. Hainsworth's reports the prmary

,Judue said

" ... Dr. Hainsworth's earlier report, was less

medical

opinion

than

a piece of sylloqlstlc

reasonlng.

That is not to criticise the report; It

is simply to assess the welqht to be attached to It

m relation to the entirety of the material before

the Tribunal. Llkewlse the concluding sentence

Dr. Hainsworth report of

8 March 1956 is by way of

argument rather than medical opinlon."

A llttle later in hls reasons for judgment hls Honour said:

"No crlticlsm of Dr. Hainsworth is intended when

his arqumentatlve. expressinq

were

ess ntially

say

reports

that

a view of the operation

of the Act.

We agree wlth His Honour's observatlons.

This is not therefore a case like Repatriatlon Commisslon

( 1 9 8 0 ) 31 A.L.R.

140 (Full Court of the Federal Court); (1981) 36

A.L.R.

411

(Hlqh Court) where there was conflicting but unchallenged

medlcal evidence

so that

the Tribunal could not properly have been

satlsfied beyond reasonable doubt that the medlcal evldence favourable

.1_ .

-'C.=

-,<se a>-+=\-,

2 ,Yi5?;

~)-ie

~~~~~~~~~L

_ _

x&s WC<\?;

!:\,c

13 11 :

r:c.;dr:

_ _ _ _

L _ LC..

_ _ -

See also ReDatriation Commlsslon v. Bvrne (1981) 40 A.L.R.

296 and Lennell v. Repatriation Commission (19821 4 A.L.N.

FJ29.

our opinion the prlmary Judge correctly held

in the

present case that it was open to the Trlbunal to be satisfied beyond

reasonable doubt that the deceased's

eath did not arlse out

of or was

not attributable to

war servlce.

- 18.

The appeal should be dismissed with costs.

I certify that this and the seventeen (17)

precedrng pages are a true copy of the

Reasons f o r Judgment of the Court

12.

the appearance of clinlcal symptoms 1s unknown. There is no medlcal evldence to lncrlmlnate any

factor of war service	in the initlatlon of the
veteranls-cancer.

If the

veteran

had

pain

from

cancer

the

recto-slamold

present

for many years before

diaanosed,

I consider other symptoms would

have

made the aiaqnosls obvious, such as alteratlon of bowel hablt and bleedlnu. . . . In my oplnion c:?e

veteran'

S death was not due to war servlce.

Dr. van den Brenk made a reprJrt dated r15 January 19E2.

was alsG a Senlor Medlcal Offlcsr (Appeals). The Trlbunal s a d chat:-

"Dr. van den Brenk

qraduatsd M.B.8.S.

tMelb.1

D.T.R.E..

F.R.C.S.

(En?.)

F.R.B.C.R.

He nolds

speclallst

dearees

In sur4qer:r and

radlatlon

oncoloay

He was Professor of Cancer Research

London Unlverslty coupled

wlth Dlreccor of the

Richard Dlmblebp Laboratory of Cancer

Research, St.

Thomas' Hospital, Medical

School

and

Consultant

Physician. S t . Thomas' Hospital. London.

He was

employed for over 30 pears slnce 1947 m the treatment and. investigation of mallanant dzseases and been responslble for the initlacion and. dlrectlon of Cancer Research Laboratories an& clmica1 Research units In Oncoloup m London and Melbourne as ?ell as holdlnq Consulcant posts ar: a

ma!or

London and Melbourne teachlng hospitals.

The

Trlbunal find that he is emmently qualified."

The prlmary Judcre summarised Dr. -ran den Brenk's report In

thess terms:-

I, rlk

:.rere

is no record of Mr. Srowr! h w n g any dlsease

the allmentary

tract

durlnq

the

perlod

elicclble service.

There are certam rlsk factors,

belleved to

predlspose to cancer of

the reccum or

colon, but

che

deceased

did not develop tnese

diseases.

He had some infectlon illnesses

service buc none caused lmmunosuppresslon.

In any

event there

1s no evidence

that mmunosuppresslon

causes

cancer.

If a person

became

sever?!..;

depressed

throuah

bemq unable

mount

effective ~mmunolog~cal

response to a new forelun

13.

antlgen, such a person

would

have

a uross

haematoloaical disease

wlth

panhaemocycopenia and

be in a state of health comparable to an indlvldual dying from letlibr--lrradiatlon. HE: would-certalnlp not survlve for another 29 years. Dr. van den

Brenk's conclusion was:

'In my oplnlon to submlt

that the member

became immunodepressed on servlce (whether or not this has any bearinq-on the astioloqy of cancer development) 1s

patently

false.

Refer

Dr. Martm's

opinion (31.7.75) whlch I endorse'."

The Tribunal sald of Dr. Hainsworth's two reports that they:

' I . . . Were not based on any recorded evidence on

che

member's file and thus could be consldered 3 s speculatlve as to a causal relationshzF to war servlce of the dlsease that led to the death of che

member in tnis case. Furthermore

the Act does not

requlre proof absolute. rather it requlrec	a proof
beyond reasonable doubt."

The Tribunal atcached

c.onsideraLle xeight to the evldence o f

Dr. Martln and Dr. van den Brenk.

The Trlbunal sald of Dr. van d?n Brenk:

"The Tribunal

find that he

1 s ?mlnently qu-lifled

and has Tiven compelling reasons ts r?buc the opxnlon expressed 3~ Dr. Halnsvorch and cn

char:

basls che Trlbunal find chat the 'vldmce

of Dr.

Ha1ncc;orth has betn

destroyed by Dr. Marcin and Dr.

van Azn 3ren.k 111 re5ard tc chls speciilz case.	"
The primary Judge sald:

"Nhile one mlahc cavll

at the use of the rerm

"destroyed", chere

can

doubc t'nar: the

Trlbunal accepted. as lt was entltled to. the evldence of Dr. Marzin and Dr. van den Brenk and. not thar: of Dr. Hamsworth."

The Trlbunal had before It

a paper glven by Sir Edward Dunlop

entltled "The Acceptance of Cancer-as Mar Caused".

Speaking of Slr

Edward Dunlop's paper dated

1970 the Trlbunal said:

' I . . .

the Tribunal acknowledges the emlnence of Slr

Edward In Cancer Research nut I'lnds that thls

reference 1s a general paper

on cancer and does not

relate

speclflcally

the

case

under

renew.

Certain clalms In the paper relace CO the disease from which Mr. Brown, the member, died but Slr Edwara relates colon and rectal tumours wlth a strong association to ulcerative colltls and to a lesser extent dysenter:r and lrrltable colon disorders. None of these diseases appear in che

member's medical records."

The prlmary Judge found that the

Tribunal's assessment of ths

relevance of Sir Edward Dunlop's paper tG the clam

before It was an

assessment whlch was open f o r the Trlbunal to make.

Tke Tribunal sald

that it

"must flnd for the appllcant and set aslde the

Commisslon's

declslon unless it is satlsilea beyond reasonable doubc that there

are

lnsufflulent urounds for grantug	the clelm". The Trlbunal said that;
It found as faccs:

' I .

the- member dld

no5

x i f f s r durmg

war service

from chronlc mfecclon of an:r

kind whlch mlgnt

have

presumed to have altered hls immune mechanisms.

L ,here

1s no evldence

showlnq

an:r

lnmune

deflciency or any

relatlonship

between

mmuno-deflclencp and the member's carclnoma

of the

rectum from whlch he

dlea.

'No e-JldenCe' of

courss 1 s nor; the test to

applied. Rather the

"lest 1 s :

' Is there evldence

of dlsproof?'

and

Lhe

fact

that

there

is 'no

evidence' 1 s one of the faccocs

that the Trlbunai

muzt

tab:e

Into account vhen decidlng for itself

whether the Commlsslon's onus oi dlsproof bepond

reasonable doubt has been dlscharged."

15.

The Tribunal concluded wlth reference to the reasons of tne

-- -

Commlsslon for rejectxnq the clalm:

' I . . .

those

reasons and the medical oplnlons nn

whxch thev- were based establlsh beyond reasonable

Section 101 of the Act."

Counsel for the appellant submitted that

the present case was

one where

It was not known one way o c the other whether

or nct some

Incldent In

the deceased's

%=r ser-xce

gas relaced to the ultimats

development of hls cancer and thac

m those circumstances c*.- clalm

for penslon must be qranted because the possiblllcy thac

w z r service

had contrlbuted to the cancer had not

jeen negaclved oeyond reasonabie

doubt.

Counsel

relled

upon

che

jomt Judgment .-.f Reel:: and

Fltzuerald JZ. In

O'Brlen v. Rezatrlatlon rommisslon (19841

53 ?..L.?..

477. where thelr Honours said

at paqes 504 and 5 0 5 . -

"If there 1s no macerlal In respect of 3 fact. o r

I€ the aaterlal 1 s neucral In the sense chat IC

leaves the existence of the fact unknown, t-here x= no ratlonal basls for a cholce betT;re&n the conclusicn that- the fact does exlst and che concluslon that it does not. The non-existence nf

that fact 1 s not the only ratlonal

concluslon.

There is no need that there also be mater131 whlch

points to a 'real' posslblilcp of the existence of

that fact. That 'real' posslblllty 1 s left open by

the evidence.

Thus. it

may not be established beyond reazonabie

doubt that lncapaclty or death 15: not 'connected wlth' war service elther because there is materlal

16.

which Doints Dosltlvely to a cause of the incapacity or death which is or might be so

Morcombe). o r because of some Inadequacy in the

'connected' (as, for example, In m, Bvrne and

material to show the absence of a connecclon."

O'Erlen's Case went on

appeal to the

High Court (judqment 27

February 1385). Gibbs C.J., Hilson and Dawson JJ. approved thls passap from the ~olnt judgment of Keely and Fitzgerald ZJ., buc

said :

"T.0 matters should however

be made clear.

flrst is that althouah their Honours spoke of tne dlsproof of a fact, S . 4 7 1 2 ) does not reaulre the Trlbunal to grant a clam unless it 1s satlsfled beyond reasonable doubc of the non-exlstence of

every

evldenciary

face.

The questlon

for

the

Trlbunal is whether it

1s satlsflec. beyond

all

reasonable doubt. that here are msufficlent grounds for granting the clalrn: ~t wlll dlssllow a claim If It is saclsfled be~7ond rezsonable doubt that 'any fact necessary to escabllsh entltlement'

(Law, at

p . 6 5 2 ) does not eslst."

Tht prescnc case 1s

not one of either neutral or confllctlng

mealcal evldence. Drs. Martm and van den Brenk addressed themselves speclflcally to the medlcal history of the deceassc as revealed by che

medlcal records.

Thev dld not s1mpl.r conclude that che aetlcloqr

the dlsease

was

unknown.

Each

of those

medlcal

pracclzloners

,concluded that, had tne carcinoma been sttrlbutable

CO or arlsen ouc

3 1 the deceased's war servlce, ' C S syrnpcoms

would have been appsrs.nc

much earller than chey were.	Of Dr. Fialnsuorth's reports che primary
,Judas sald

17.

" . . .

Dr. Halnsworch's earllor report

w3-s less a

medlcal

oplnlon

than

plece

of splloglstlc

rrasonmg.

That 1 s not to crltlcise the report: it

1s simply to assess the welqht to be attacned 20 It In relatlon to the entlrety of che materlal before the Tribunal. Llkewlse the concludlnq sentence of

Dr. Halnsworth report of

8 March 1576 1s by way of

acgumenr- cather than

medlcal oplnlbn."

A little later in his reasons for

juagrnent hls Honour said:

"No criclclsm of Dr. Hainsworth 1s Intends6 when I

reports

his

th t

say

were

essentla11:r

arFumencat:ve, expressing a vlew of the oprratlon

of the Act.

We agree with tiis Honour's observaclons.

Thls is not therefore a case llke ReDatrlatlon Commisslon

Law (1980) 31 A.L.R. 140 (Full Courc of the Federal Cmrc); (1581) 36

B.L.R. 411

(Hiah Courc) where there

was confllcslng Dut unchallcnged

medlcal evldence

so thar-

che Trlbunal

could not properly have been

satlsfled beyond reasonable

doubt that the medlcal evlience fsvourable

- - si,?.

= . - > - 7

_I-._.-

- - - -

. - * - - - - l

- 2 =i

,;P

ni--5;-, 7 ;;*;

1-12 _I__

AprLL$:s::a< 4 . 2 "/.X'-:!-;;

!?'C!

1 5 I r 2 '1..

__.__

In our oplnlon che prlmary

Judge correctllr he15 ~n the

present case that it was open to che Trlbunal to be satlsfled beyond reasonable doubt that the deceased's ae;lth dld not arise out of or was not attrlbutable to war servlce.

18.

The appeal should be dismissed. with c o s c s .

I certify th-at

t h r s and t h e

s e v e n t e e n

(17)

p r e c e d r n g

p a g e s

a r e

t r u e

c o p y

t h e

Reasons

f o r

J u d g m e n t

t h e C o u r t

A s s o c l a t e	&%aa<
Dated :

[1985] FCA 236

7 Jun 1985