Bushell v Repatriation Commission

[1992] HCATrans 97

...

' 'I

• ,:~;I'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl0S of 1991

B e t w e e n -

ALLEN WILLIAM BUSHELL

Appellant

and

REPATRIATION COMMISSION

Respondent

MASON CJ
BRENNAN J

DEANE J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Bushell(2) 1 31/3/92

AT CANBERRA ON TUESDAY, 31 MARCH 1992, AT 10.17 AM

Copyright in the High Court of Australia

MR M.D.A. MAURICE, QC:  May it please the Court, I appear

with my learned frie , MR M.B. SMITH, for the

appellant. (instrucced by M. Richardson, Director,

Legal Aid Commission (New South Wales))

MS M.J. BEAZLEY, QC: If the Court pleases, I appear for the

respondent, with my learned friend,

MR A. ROBERTSON. (instructed by the Australian

Government Solicitor)

MASON CJ: Yes, Mr Maurice?

MR MAURICE:  I hand up to Your Honours our outline of

submissions and two chronologies; one relating to

the personal circumstances of the appe~lant, and another to the proceedings leading up co today's hearing.

Your Honours, the appellant is a veteran who

joined the RAAF in 1941 and saw service in New

Guinea and the Dutch East Indies, as well as this country, up to the time of his discharge in 1946.

Before his discharge he was declared permanently

unfit for service on the grounds of temperamental

instability. This would nowadays be described as

an anxiety state.

At about the time of his separation from the

RAAF, a psychiatrist, Dr McGeorge, advised him,

because of the problems he had, to keep away from

doctors, to avoid medication and have a few beers

every afternoon when he knocked off, and to have

them with people other than the people with whom he

worked. That advice he took, and lived according

to its dictates up until the time of a heart attack

in 1985. He purchased a hire car business out at

Windsor and a mail contract and settled into

self-employment.

In 1956, for the purposes of an insurance assessment, he saw his general practitioner,

Dr Bathgate, and either Dr Bathgate or his

secretary, took his blood pressure which was then

recorded as being 140 over 90. Before the Tribunal

there was conflicting evidence as to whether this

indicated borderline hypertension, perhaps the

preponderance of evidence was to the effect that it

did, but it was not at that time recognized as

giving rise to a problem.

His blood pressure was not taken again

until 1972, when it was found to be 160 over 120.

He was diagnosed as suffering from essential

hypertension and started on a course of medication. respect of which the present claim is made.

Bushell(2)	31/3/92
BRENNAN J:	Where do we find that there is evidence of the diagnosis of essential hypertension since 1972?

MR MAURICE: It is referred to, Your Honour, in - - -

BRENNAN J: Is it at the pages you have noted there, at 132

point 25, and 163, or it elsewhere?

MR MAURICE:  No, it would be elsewhere, Your Honour. It is

referred to in - there are several medical reports

which are incorporated in the appeal books.

Perhaps I could just indicate to Your Honour where those medical reports can be found. There are two

doctors relied upon by the appellant, Drs Miller

and Schiller, and the appeal books contain three

reports from each of those doctors. Dr Miller's

first report, in point of time, is at page 273, and

at page 275 Your Honour will find the history of

diagnosis of hypertension commencing at line 10.

The appellant's war-caused anxiety state has

continued to the present day. Unfortunately the

appeal books have not reproduced materials which

were included in the appeal book before the Federal
Court which indicated that in 1946 a determination
was made of nervous disorder but with nil capacity.

These matters are referred to in the medical

reports, Your Honour, but the formal documents have

not been incorporated in the appeal book.

In 1982 the appellant applied for an increase

of pension with reference to his anxiety state or
nervous disorder, leading to a determination by the

Repatriation Board on 16 March 1984 when an

assessment was made of an entitlement to

40 per cent of the general rate on account of his

temperamental instability, and that was backdated

to his original application for increase on

26 May 1982. It may be important to note that

there was never any challenge made to that

determination or assessment.

The appellant has followed, as I indicated,

Dr McGeorge's advice up until 1985 when he suffered

a heart attack.	He consumed about four middies a
day.	He was overweight until that time. His claim

is founded on the idea that three environmental

factors may have contributed to the development of

essential hypertension in his case: anxiety or

stress; consumption of about four middies a day

and obesity.	The first is a service-caused
condition.	The other two are related to it.

In support of his claim the appellant relied

upon the reports of two cardiologists,

Dr M. Geoffrey Miller - his CV is set out in the

appeal book at page 330; and Dr Eric Schiller, and

Bushell(2) 31/3/92

his CV is set out in the appeal book at page 126,

and relevant publications of his are listed at

page 127.

Three of Dr Miller's reports have been

included in the appeal book, together with a paper

prepared by him entitled The Relationship Between

Prolonged Emotional Stress and the Development or

Aggravation of Essential Hypertension. Those

reports and the paper are to be found at 273, 322,

327 and 332. It is not our intention to take

Your Honours through the evidence of these

witnesses. The transcript of Dr Miller's oral

evidence has also been included, commencing at

appeal book 189.

Three reports of Dr Schiller have been

included; they are to be found a~ page 319 - the

first one is at 116, the second a~ 319 and the

third at 336. The transcript of his oral evidence

begins at page 169.

We only wish Your Honours to understand that

the reports and evidence of these two witnesses were not merely theoretical speculation as to a possible connection between stress and the

condition of essential hypertension or between
alcohol and the condition of essential

hypertension.

The flavour of their reports is that both of

these men are adherents to the view that there is

an association between stress and the development

of essential hypertension in predisposed people.

Applying that view to the facts of this case, they

thought, at the very least that a real possibility

by way of explanation for the appellant's

condition.

Perhaps if I could just take Your Honours to

two references so you will have the flavour of it.

In Dr Miller's report, at page 326, the second

volume of the appeal book, at line 19, the doctor

says that it is:

My opinion ..... is that emotional stress

can act as a stressor and is indeed a

contributing factor to the development of
hypertension in those who are already

predisposed.

And he concludes that:

Mr. Bushell would fall into the category of a

patient who is predisposed to hypertension

because of his high alcohol intake which, it

Bushell(2) 4 31/3/92

has been agreed, has been operative for many

years.

There are other references in his reports to the matter of alcohol which he saw as being all related, in view of the advice Dr McGeorge had given, alcohol here being used as a relaxant, and

he was very firmly of the view that there was a

definite connection between the appellant's simply express an opinion but they detail the basis of that opinion, both in terms of the general
consumption of alcohol over the years and the
development of essential hypertension in his case.

theories propounded by them and their application

to the circumstance of the appellant's case, they

refer to the literature on the relationship between

stress and essential hypertension to laboratory

experiments, to human studies, and to the mechanics

of how repeated stress can lead to the onset of

high blood pressure.

Dr Schiller, one can get the flavour of his reports, if we go to page 340 of the appeal book at

the beginning of line 6:

Clearly, there are reputable clinical

scientists who believe that ongoing,

repetitive, and intense emotional stress and

distressing emotions can play a role in the

initiation and maintenance of raised arterial

pressure or hypertension. It is submitted

that Mr. Bushell's anxiety state acted in this

manner.

And then he develops that, or further to say about

that in the paragraph numbered 5. There in effect

he expresses the same opinion, with reference to

Mr Bushell, yes.

So the two points we would make here, are that

these witnesses, on the face of the materials, were

undoubtedly qualified to express the opinions which

they did, and the opinions they have expressed are

not merely speculation. They amount to saying that

there is positive evidence to support a

relationship between stress and high blood pressure

and in the case of Dr Miller, between the
consumption of alcohol in this man's case and the

high blood pressure, and that many doctors believe

there is an association between stress and high

blood pressure and they are amongst them, and they

believe it a real possibility, if not a

probability, in this case.

The Repatriation Commission relied upon

reports from three experts: Professor O'Rourke,

Bushell(2) 31/3/92

Dr Freeman and Dr Brender.	Dr Brender did not give
evidence before the Tribunal.	He is, I am told,
incorrectly described there as being dead.	My

learned friend says he is, but I am told he is not.

In any event, he was not called. It becomes clear

from reading the Tribunal's reasons that the focus

of Mr Bannon's, as he then was, attention was on

the witnesses who gave evidence before him, the
four experts who gave evidence before him.

The important parts of the evidence of these

witnesses, so far as it was accepted by the
Tribunal, is discussed in the Tribunal's reasons.

At the outset, Your Honours, it is important to

appreciate that the Tribunal rejected part of the

evidence of the experts relied upon by the

Commission, namely those parts which were tainted

by the false premise, a premise held by the

Tribunal to be false, that the veteran did not

suffer from ongoing stress.

This becomes important to a submission we will

be making concerning other evidence to which the

Full Federal Court had regard when saying that

there was evidence to support the conclusion which

Mr Bannon reached. In identifying that evidence,

unfortunately they have referred to evidence which

was affected by this error. When they expressed

views to the effect - I think Dr Brender and

Professor O'Rourke both expressed the view that a theory of connection between stress and essential hypertension in this case was fanciful - they used

that word "fanciful" - but they did that in the

context of an expressed view that this man did not

have ongoing stress, that his stress had ceased at

the conclusion of hostilities in 1945.

BRENNAN J: Are these not matters of fact?

MR MAURICE:  They are matters of fact, Your Honour, but they

were an error in which the Full Federal Court fell

because they overturned the decision of

Justice Wilcox who said that the evidence

identified by the Tribunal and relied upon it, was

not capable of supporting the conclusion which it
reached. They overturned him by saying, "Well,

look, there's this other evidence".

BRENNAN J:  My problem is not one as to whether the Full

Court could overturn Justice Wilcox, but is not the questions of law of all questions of fact?

MR MAURICE:  Yes, indeed, Your Honour.

Bushell(2) 6 31/3/92

BRENNAN J: Then, what was the finding of the Tribunal

which, in your submission, the Full Federal Court

has failed to give attention to?

MR MAURICE: It is the finding of fact that no reasonable

hypothesis was raised, Your Honour.

BRENNAN J: If that is the finding of fact, then the

Tribunal's decision is conclusive, is it not?

MR MAURICE:	Yes. Well we are not complaining about the finding of fact, as such, but the process by which
that position was arrived at, Your Honour, because
the process by which it was arrived at was one of
weighing up the conflicting evidence and then
deciding upon the balance of probabilities which
evidence it preferred; on the one side,
Drs Schiller and Miller, and on the other, Professor O'Rourke and Dr Freeman.

In concluding that it preferred the

Repatriation Commission's witnesses, with the

result that, so it is said, that justified a

finding that no reasonable hypothesis had been

raised. Our contention is that that is a wrong

approach, it manifests an error of law, that we

were entitled to have those conflicts determined on

a criminal standard of proof.

BRENNAN J:  I can understand that, but you have got to have

the foundation, do you not, of some primary facts,

and do you seek to challenge any of the primary

facts: for example, the question of whether or not

there was some continuing anxiety state suffered by

Mr Bushell?

MR MAURICE:  The finding that the Tribunal made was that

there was a continuing anxiety state.

BRENNAN J: That is no problem then, you accept that.

MR MAURICE:  We indeed do, Your Honour, but the Full Federal

Court - and it goes to our second argument. We say

that the Full Federal should not have overturned

the decision of Justice Wilcox, and we say that

they were in error in doing so by referring to

evidence - other evidence not relied upon by the

Tribunal - as justifying the Tribunal's conclusion

when it is clear that the Tribunal had rejected

that evidence, because that evidence was, to a

large extent, premised on the view that there was

no ongoing stress.

TOOHEY J:	Mr Maurice, to what extent was that matter foreclosed by the granting of the pension in 1984?
Bushell(2)	31/3/92

MR MAURICE:  We say that it was, Your Honour. This Court in

O'Brien, to which we intend to take Your Honours in

some detail later on, the majority took the view

that where there was a determination of the

Tribunal, as it then was, to the effect in that case as well that there was an anxiety state and

there had been no attempt by the Commission to have

that reviewed, then it was not open to it in

subsequent proceedings to relitigate the matter.

That is a view which Your Honour Justice Brennan said they he might have some trouble with and made

no final decision about, but the majority certainly

thought it foreclosed the matter. But in this

instance it is clear from the Tribunal's reasons in

any event, Your Honour, that Mr Bannon found as a

matter of fact that there was ongoing anxiety.	He
said so expressly.

TOOHEY J:  But when the Full Court of the Federal Court came

to deal with the matter did they attach any

importance at all to the existence of the pension

granted in 1984?

MR MAURICE:	They do not deal with the issue, Your Honour. They do not appear in their judgments to recognize
that there was this problem, that some evidence had
been rejected.

TOOHEY J: Well, I take it its significance, that is, the

significance of the anxiety state or the

continuance of the anxiety state for your purposes, is not that it provides an inevitable link with the hypertension, but it is a foundation upon which the case for hypertension can be built?

MR MAURICE:  Yes indeed, Your Honour. And to our primary

argument these points have no real significance,

because our primary argument is that you only look

at the reports of Ors Miller and Schiller and you

can see clearly on their face that they raise, if

there is no other evidence, a reasonable
hypothesis.	We say that the approach which should

have been adopted, having found amongst the

materials those reports pointing as they do clearly
to a hypothesis of connection, that on the face of
those reports was a reasonable approach, that the

Tribunal should then have moved to subsection (1)

and resolved the conflict on a criminal standard.

So if we are right in our first main ground of

appeal, then we do not even get to this point.

So the position may be summarized this way:

that the Tribunal accepted the evidence of the

Commission's witnesses on the general theory of the

lack of an association between stress and the

development of hypertension, but rejected their

evidence concerning the possible application of any

Bushell(2) 8 31/3/92

such theory to the circumstances of this veteran's
case.

I take Your Honours briefly to the reasons of the Tribunal which commence at page 344 in the

second volume. At pages 345 to 348 Mr Bannon set

out matters taken from the reasons for decision

given by the Tribunal as previously constituted,

and as he says on page 345 line 4 these matters

were not in dispute.

He sets out provisions of the Act, and

something about the personal history of the

appellant, at page 346 line 41, and begins talking

about the anxiety problems of the appellant. It

said that when he was overseas during the war he

became intolerant, after his tour in New Guinea:

At that time he was short-tempered, easily

upset, had lost weight, and continued to

suffer from a gastric problem which first

started in New Guinea ..... throughout his time

at Morotai, he did not feel well; the

emotional symptoms continued then, and have

remained until now.

Now that, despite the evidence of the Repatriation

Commission doctors, was treated by the Tribunal as

being not in dispute. That continues at line 39

where he says:

he had experienced nightmares during and ever

since the war, which have continued with

variable frequency until the present time.

They have become worse with some forms of

anti-hypertensive medication, especially

Inderal.

And goes on, he:

admitted to a fairly stress-free environment
after the war.	He did not have difficulties

in relationships with people in his

mail-contracting business but he had
difficulty in coping with his two daughters

and was occasionally short with his wife. His

relationship with his daughters grew more

stressful when they were teenagers. He became

overly involved in matters which should not

have concerned him. He became irritated

without provocation and was easily upset.

And then:

he had frequently experienced indigestion,

stomach upsets and diarrhoea.

Bushell(2) 9 31/3/92

Then, at page 348, the last line on that page, the

Tribunal makes the observation that:

It was agreed that all four gentlemen who

gave oral testimony before me are well
respected medical practitioners. However,

they exhibit some divergence of opinion -

between them.	And then we say the error begins in
his approach.	He proposes a course of resolving

that divergence of opinion, solely within the

framework of subsection (3), and he says, in

line 9, that it:

is a matter for this Tribunal to decide

pursuant to s. 120(3) -

which is the matter of the reasonability of the

hypothesis, not for the witnesses to decide.

Then, at page 350, at the top of the page, he

sets out the general theory advanced by Ors Miller

and Schiller:

the onset of essential hypertension is that it

is caused by or contributed to by stress.

And talks about the evidence in support of that.

He acknowledges, at line 15, that alcohol and

obesity are advanced as other hypotheses leading to

elevated blood pressure. Then, on the following

page, at line 5, he begins setting out a passage

from Professor O'Rourke's report. This is one of

the passages reproduced in the Federal Court's
judgment. It is not one which the Tribunal

accepted, it becomes apparent, because it begins:

"In this case severe anxiety developed in

the absence of hypertension."

Obviously referring to the war years.

"Later severe hypertension developed in the

absence of anxiety" -

which is the piece that was not accepted.	Then he
goes on to say:

"In this case there is no credible link

between war service and hypertension; I

believe that the hypothesis linking the two is

fanciful" -

a conclusion expressed on the basis of the false

premise. He sets out Dr Brender's view, at

line 24, and then he begins at line 27 discussing

Dr Miller's view. Over the page, at line 13, he

Bushell(2) 10 31/3/92

talks about Dr Freeman's evidence. Then, on the

following page, 353, at line 18, he says:

I accept Dr Freeman's statements as

quoted above. It seems to me that ten

clinical studies are worth one hundred paper

experiments, and that experiments on animals

have little weight compared to observed

clinical effects in human beings. In his oral

evidence Dr Freeman also added that whereas

the hypothesis of stress as being related to

essential hypertension was in vogue in the

past, and was held, and still is held, by some

respectable medical practitioners - I flag that, Your Honours -

modern studies have discounted that view -

Then, at line 31, begins a paragraph which might

clearly be described as the ratio of Mr Bannon's

decision:

As I accept Dr Freeman's views of the

paper studies, which form the basis of the

views of Ors Schindler -

it should be Schiller -

and Miller, and because I prefer Dr Freeman's

view that clinical observation outweighs paper

studies, animal experiments and retrospective

surveys, I am satisfied that after
consideration of the whole of the material
before me that that material does not raise a

reasonable hypothesis connecting the veteran's

essential hypertension with the admittedly

war-caused condition of stress from which he

has suffered, and still suffers.

That is the critical finding in relation to stress

made by this Tribunal, that he still suffers the

war-caused condition of stress. Then he goes on to

say that he has not overlooked the evidence of

Professor O'Rourke. At line 10, he says:

His comments which I accept as more probable -

and he sees looking at this as a balancing

exercise -

than the contrary views expressed by the

pro-stress papers, point to factors -

et cetera. Then over the page he wraps it up,

commencing at line 8:

Bushell(2) 11 31/3/92

The evidence of Dr Freeman and of

Professor O'Rourke satisfies me that although the hypothesis of stress as contributing to the onset of essential hypertension has been

advanced in a number of papers, that

hypothesis is not reasonably based. That

being so, and however well respected

Ors Schiller and Miller may be in their

profession, I am required -

so he is treating it as not an actual finding, but

one which he is required as a matter of law to

make -

by the terms of s.120(3) of the Act to be

satisfied beyond reasonable doubt - - -

BRENNAN J: Given his view, is that conclusion challenged,

that 120(3) has that effect?

MR MAURICE:  Yes, it is, Your Honour. It is challenged on

the ground which formed the basis of Justice Wilcox

overruling the Tribunal's decision.

BRENNAN J: Whatever Justice Wilcox says, how do you address

the argument based on the construction of 120(3)?

MR MAURICE: 

We say that if his approach was correct, then

the evidence, which he accepted and which he has
identified in his reasons, does not support the
conclusion.

BRENNAN J: My question to you was: 

assuming, for the

purposes of the argument, that the hypothesis

advanced by the two doctors, Miller and Schiller,

was not reasonably based, assuming that, is there

any error in the view advanced by Mr Bannon that in

those circumstances 120(3) required him to be

satisfied beyond reasonable doubt that there was no
sufficient ground for determining the war-caused

relationship?

MR MAURICE:  Just to make sure we are not cross-purposes,

Your Honour, if all we had regard to was the

evidence of Ors Schiller and Miller, put aside the
other reports, did not test them against the

reports of the other doctors, and he formed that

conclusion that they did not give rise to a
reasonable hypothesis, then he would have been

required, yes, by the combined effect of

sections 120(1) and 120(3) to reach that

conclusion.

BRENNAN J: 

Then your challenge is to the reaching of the

conclusion that the hypothesis is not reasonably
based.

Bushell(2) 12 31/3/92

MR MAURICE:  To the process by which he reached that

conclusion?

BRENNAN J:	Yes.
MR MAURICE:	Yes, Your Honour.
TOOHEY J:	And you say presumably, Mr Maurice, that it is

not enough to balance one set of medical opinions

against another, that somehow each set may prevail

unless the Tribunal reaches the conclusion that the

set relied upon by the applicant simply cannot

sustain a reasonable hypothesis, is that the way

you put it?

MR MAURICE:  I do not know, with respect, Your Honour, it is

quite how we would put it. We say that he would

have to be satisfied beyond reasonable doubt that

the hypothesis proposed by Drs Miller and Schiller

was wrong.

TOOHEY J: That is not quite the way the Act puts it though,

is it? The Act itself determines what shall be

satisfaction beyond reasonable doubt, namely, the

formation of an opinion by the Commission that the
material before it does not raise a reasonable

hypothesis.

MR MAURICE: That is one interpretation, Your Honour, and it

is the interpretation to which effect has been

given in this case and in, perhaps, all cases where

it has been necessary to propound an interpretation

by the Federal Court, but we say it is wrong, that

if you read subsection (3) together with

subsections (1) and (2) on the footing that you

have got to give some work to subsections (1)

and (2) to do, then subsection (3) must mean

something else, and we say that it can only

mean - for those earlier subsections to have any

work to do subsection (3) can only be interpreted

as providing a sort of threshold test which does

not involve any adjudication because once you make

an adjudication for the purposes of section (3) you

necessarily get yourself in a position - whatever

the result of that adjudication - where, as a
matter of logic, there is nothing left for
subsection (1) or subsection (2) to do.

We are saying that given the history of this

legislation the Parliament intended to adopt the
approach which, I think, it is correct to say

Your Honour developed, in the time when Your Honour

was on the Federal Court hearing cases under the

old legislation, and Justice Brennan took up, in

O'Brien's case, where it was suggested that before the heavy burden of disproof - I think the phrase

attributed to Your Honour Justice Toohey - was

Bushell(2) 13 31/3/92

triggered, there had to be some evidence to support

a hypothesis of connection, but once you located

that evidence then you were bound to find for the

claimant unless by looking at further evidence you

came to the view that it had been dispelled beyond

a reasonable doubt.

The effect of the majority decision in O'Brien was to tear away that requirement for a trigger and

leave open the view or promote the view that a

claim could succeed where there was no evidence one

way or another, so that one could not eliminate, as a matter of logic, the possibility of there being a connection between war service and the disability

or death which was the foundation of the claim. In those circumstances, so it was said by the majority

in O'Brien, there could be no satisfactory basis

for saying you were satisfied beyond reasonable

doubt that the required connection did not exist.

TOOHEY J:  But in terms of this legislation, if the

Commission forms the opinion and says that it forms

the opinion that the material before it does not

raise a reasonably hypothesis connecting the

disease, injury or death with the circumstances of

the service, do you say there is still a basis upon

which an applicant may succeed?

MR MAURICE:  No, that would be the end of it. We do not see

how there could be any other interpretation. That

must be the - - -

TOOHEY J:  No, but in that sense subsection (3) does dispos0

of the matter.

MR MAURICE:	Yes, indeed, Your Honour.
TOOHEY J:	I thought you were suggesting or seeking to give subsection (3) a construction that would leave
subsections (1) and (2) to perform some other
purpose.

MR MAURICE:  We do. If you just look at the Act - and

putting to one side, for a moment, that there is no

onus of proof on anybody in these ''proceedings" -

if you just look at the materials relied upon by

the claimant and looking at those you say, "These

don't give rise to a reasonable hypothesis, that is

my view" then, applying subsection (3), necessarily

the claim must be defeated. But if you say,

"Looking at them, they are capable of giving rise

to a reasonable hypothesis" - in the same way, for

example, as a judge presiding over a murder trial

may say that the evidence is capable of giving rise

to a reasonable doubt about a defence of

self-defence or provocation - then you have got

past the subsection (3) stage, you have a

Bushell(2) 14 31/3/92

reasonable hypothesis, and if there is further

evidence which attacks that hypothesis, you

consider it and make a determination about it in
the process of doing the work required by

subsection (1).

TOOHEY J: Yes, I see that.

BRENNAN J: Is your point this, Mr Maurice, that in forming

the opinion under subsection (3) the Commission is
required to approach the formation of the opinion

in the light of the direction in subsection (1),

that is to say, that no opinion is to be formed,

adverse to the claimant, under subsection (3)

unless the Commission is satisfied beyond

reasonable doubt that the hypotheses advanced by

the claimant, or on the claimant's behalf, are

unreasonable?

MR MAURICE:  Yes, Your Honour. Just at the last paragraph

of Mr Bannon's reasons, on page 355 at line 17,

where he says:

It is a matter of regret for me that the

decision of disputed matters between well
respected physicians is left to a layman such

as myself -

because that highlights the problem of Mr Bannon's

approach, we say, Your Honours. Subsection (1)

stands out as a beacon, a promise to veterans, that

their claims will not be defeated unless, in truth,

the Tribunal is satisfied beyond a reasonable doubt

that there is no connection between their war

service and their disability, and if there are

well-respected physicians who say that there is

such a connection, then what are we doing talking

about making a choice, on the balance of

probabilities, between those physicians and others

who take a different view and never getting to

subsection (l)? It brings into sharp relief the

failure of subsection (1) to do the work promised

of it.

DEANE J:  You test it best, do you not: assume that

Mr Bannon had said, "I think there is a 51 per cent

chance that the evidence that the hypothesis is

fanciful is correct, and I think there is a

49 per cent chance that the evidence that that hypothesis explains what happened is correct", whether you stop on a 51:49 per cent view of it, or

whether you go on to consider, in the context of

the criminal onus, whether the material does raise

a reasonable hypothesis?

MR MAURICE:  We would say, Your Honour, that - maybe there

is some other way of construing it which enables

Bushell(2) 15 31/3/92

that process to be followed. We have not seen it

so far, we suggest that you form the view that

there is, or is not, a reasonable hypothesis

without resolving any conflicts in the material.

You just simply ignore any adverse material for the

purpose of forming that view. So, that you have a

reasonable hypothesis at the time you move on to

subsection (1).

DEANE J:	I do not think what I was putting was against you.
MR MAURICE:	I am sorry, Your Honour, I must have

misunderstood Your Honour.

DEANE J:	I thought it was helpful to your argument.
MR MAURICE:	Yes, Your Honour.

DEANE J: If not helpful to your argument, help to identify

the critical question.

MR MAURICE: Yes, Your Honour. It does, indeed,

Your Honour. Can I just briefly take Your Honours

to Justice Wilcox's judgment which commences at

page 365. Really, we can patch into his reasoning

at page 371 where, having analysed the Tribunal's

reasons, he approves the approach it took saying,

at line 20 on 371:

I am not persuaded that Mr Bannon

misunderstood the question to be determined.

In other words, endorsing the approach of weighing

up the competing medical evidence exclusively

within the framework of subsection (3) and reaching

a conclusion concerning it.

TOOHEY J:	Mr Maurice, the way in which you explained your approach a moment ago, I take it, permits the
Commission to weigh competing medical opinions in
order to determine whether the Commission is
satisfied beyond reasonable doubt that there is no
sufficient ground for making the determination?

MR MAURICE: Yes, Your Honour.

TOOHEY J: In other words, you say for the purposes of

subsection (3), no weighing, just see whether there

is a reasonable hypothesis?

MR MAURICE:  Yes, Your Honour.

TOOHEY J: If there is none, that is the end of the claim.

If there is, you move into subsection (1) and for

the purpose of that subsection it is legitimate -

indeed, necessary, I suppose - to look at the

competing medical opinions. And even though the

Bushell(2) 16 31/3/92

Commission has said that one set of opinions

favourable to the applicant cannot be dismissed as

not raising a reasonable hypothesis, the Commission

may still be satisfied, at the end of the day,

beyond reasonable doubt that the claim has not been

made out?

MR MAURICE: 

Yes, and it can do that because in the process

of coming to the view that it does raise a
reasonable hypothesis, it has not considered the

further material and made an adjudication upon the

two. Indeed, the logical result of our being
successful on our primary ground of appeal would be

that this matter would have to go back to the

Tribunal to consider the question of whether the

hypothesis raised by Drs Schiller and Miller had

been dispelled beyond a reasonable doubt.

BRENNAN J: In other words, subsection (3) relates to an

evidentiary onus and subsection (1) relates to an

ultimate onus?

MR MAURICE:  Yes, in so far as it is permissible to

talk - - -

BRENNAN J:  To use those terms.

MR MAURICE:  To use those terms. the problem at page 372 which he had with Justice Wilcox then states

Mr Bannon's reasons, that is he says at line 16:

The problem which I have with Mr Bannon's

reasons, with respect, is that the evidence

which he accepted, and which he preferred to

the competing evidence of the applicant's witnesses, seems to me to be incapable of establishing the conclusion which he reached.

Mr Bannon relied primarily on the evidence of

Dr Freeman. Then he goes through that evidence and on page 373,

at line 13, points out -

it does no more than indicate that Dr Freeman

preferred the view that there was no

relationship. He did not assert that there

was no link, or that there could be no link.

It would have been difficult for him to do

this, given his admission that "no entirely

satisfactory cause has been determined for

essential hypertension".

Similar comments may be made about the

evidence of Professor O'Rourke.

Professor O'Rourke expressed a clear

preference for the view that there was no long

term connection between stress and

Bushell(2) 17 31/3/92

hypertension but, at least in the parts of his

evidence accepted by Mr Bannon -

so this judge was alive to the fact that some parts

had not been accepted -

he did not say that the contrary view was
unreasonable, or that there was no connection

between the two conditions.

Over the page, he says that Mr Bannon fell into

error.

His error was not that he misunderstood the

nature of his task but that the primary facts

found by him were incapable of supporting his

ultimate conclusion.

At line 8:

The accepted evidence did no more than show

that the postulated hypothesis was less likely

to be accurate than the hypothesis that there

was no link between stress and hypertension.

That was sufficient for him to dispose of the

matter, but he goes on to deal with the fact that with a complementary hypothesis, but one capable of

standing by itself, that there was a relationship

between war-caused alcohol consumption and the

onset of the appellant's hypertension. There is

some dispute as to whet~~r that had been advanced

in final submissions before Mr Bannon.

Justice Wilcox considered that and came to the

conclusion that it had. He was satisfied that it

had been advanced, as indeed it had, and pointed

out on page 375 line 21:

The applicant was entitled to have a ruling on

that case, so the omission of the Tribunal to

deal with it was an error of law.

Then over the page on 376 at line 2 he propounds a

view of section 120 which is similar to the view

applied in this case:

If it were possible to say that the material

before the Tribunal did not negative the
existence of a reasonable hypothesis of a

connection ..... Mr Bushell would be entitled,

as a matter of law, to a finding in his

favour.

So you never get to section 120(1).

Bushell(2) 18 31/3/92

The scheme of section 120 of the Act is that a

claim must be granted unless the

Commission - or on review, the

Tribunal - "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.

TOOHEY J: But you do not subscribe to that, do you?

MR MAURICE:  No, that is the approach we say is wrong,

because that disenfranchises subsections (1) and

(2), but its orthodoxy at the moment, perhaps one

might say, Your Honour, with some qualification.

He goes on to say, considering whether to send the

whole matter back or to make a finding in light of

this view in the claimant's favour so that he is to

get his pension - he makes the point at line 22:

But there was other evidence before the
Tribunal, upon which no findings were made.

It is theoretically possible that this

evidence does contain material upon which the

Tribunal could properly find that the postulated hypothesis is not reasonable.

What the Full Federal Court did was to say, "Here

is the evidence he is referring to. It is capable

of supporting the conclusion. Therefore, there was

nothing wrong with the Tribunal's approach."	So
his order was that the matter go back to the
Tribunal for, in effect, a full rehearing.

Then, if I could take Your Honours to the

judgments of the Full Court, making this

preliminary observations, Your Honours, that if one

goes to the order of the Full Court which is set

out at page 404 of the appeal book, one sees from
the first order that the view of the

majority - that is, Justice Neaves and

Justice Merling - is that the only issue in any

case is whether there is a reasonable hypothesis,

something to be solely determined within the

framework of subsection (3). The determinative

issue is whether there is a reasonable hypothesis,

as their order indicates, and that order is crafted

in the joint judgment of Justice Merling and

Justice Neaves at page 402.

The view of Justice Davies was that the whole

matter should go back to the Tribunal for

rehearing. If I could take Your Honours to - - -

BRENNAN J:	If it went back in accordance with the view of the majority, it would still leave undetermined,
would it not, the question arising under
subsection (1)?

Bushell(2) 19 31/3/92

MR MAURICE:  Yes, Your Honour, and it would say this to the

Commission, that if the Tribunal is unable to form

an opinion that no reasonable hypothesis has been

raised or forms the opinion that one has been

raised, based on the alcohol matter, the Commission

cannot then seek to attack the formation of that

opinion under subsection (1).

TOOHEY J:  In some ways this could work out favourably to

you; more favourably than the approach for which you are contending. It seems to carry with it the

flavour that if the reasonable hypothesis cannot be

dismissed, then that is the end of the matter.

MR MAURICE:  When you think it out, Your Honour, we suggest

it really is the same question. The way the

Tribunal approaches it now, it really is the same

question that falls to be determined. Whether you

do it under subsection (1) or do it under

subsection (3) is the issue. The only difference

between the two in practice, in fact, is the

standard of proof.

So that all cases now coming before the

Tribunal where there are conflicts in the evidence are decided on the balance of probabilities, and

that is the end of it. They never go to be

determined under subsection (1), so it is difficult

to conceive of circumstances in which it favours a

veteran.

BRENNAN J: That is overstating it, is it not, because

questions arise not only with respect to the
existence of a causal relationship which may be a

matter of inference or professional opinion, but

there may be questions turning also on issues of

primary fact. Where did he serve; how intense was

the stress that he was under at that time, and so

forth.

MR MAURICE:	Your Honour, our submission would be that those questions of primary fact such as Your Honour has
indicated: where did he serve, what was the
intensity of the stress, what amount of the toxic
chemical was he exposed to, that sort of thing,
those questions are all connected with the hypothesis, they all come to be considered in subsection (3).
There are cases which deal with that. For example, Lowerson, which is on our list, is a case
in which the veteran was killed in a motor car
accident.  The basis of his widow's claim was that
his war service had caused him to become an alcoholic. His alcoholism due to war service
continued over the years and he was probably drunk

Bushell(2) 20 31/3/92

at the time his car went off the road at 2 am in

the morning and he was killed.

The Tribunal took the view that it was in

effect bound to presume that his war service had

caused him to become an alcoholic - not that there

was any problem with the theory that the stress of
war service can cause someone to become an
alcoholic, but that as a fact, a primary fact, and

therefore expressed itself satisfied that a

reasonable hypothesis had been raised.

It went to the Federal Court. Justice Morling heard it and said, "No, that all comes within the

working out of what is a reasonable hypothesis.

They could not make that assumption; they had to

look to see if there was material which supported
the view that his war service had caused him to

become an alcoholic and also the further question"

- about which there apparently was some argument -

"whether he was drunk at the time his vehicle left

the road and he was killed".

Those primary facts, we would respectfully

suggest, come within subsection (3). One needs to

look at - if you take a case of, say, a cancer said

to be causally related to exposure to chemical

agents in Vietnam, and the hypothesis requires, obviously, that the veteran had been exposed to

such a chemical, then there must be some evidence

pointing to the possibility that he was exposed as

a result of his service to that chemical, otherwise

one could not be satisfied that there was a

reasonable hypothesis.

As Mr Justice Davies, in struggling to deal with this section, has been doing, you try to

somehow say that the hypothesis deals with things

other than the basic factual data, to use one of

the expressions that has been used, upon which the

hypothesis or opinion depend.	Where do you draw
task.

the line, we ask rhetorically? It is an impossible

So the fact is that no cases, on my

instructions, ever get into subsection (1).

Justice Davies, at page 388, line 2 - - -

DEANE J:  Mr Maurice, in these cases has there been an

examination of the meaning of the word "reasonable"

in subsection (3)?

MR MAURICE:  Yes, Your Honour. A good deal of attention has

been paid to that.

DEANE J:  And what do you say it means?

Bushell(2) 21 31/3/92

MR MAURICE:  We would not argue with the view that seems to

have prevailed in the Federal Court, Your Honour,

East's case.
commencing with That is the first intervention, where they adopt a formulation propounded by the Tribunal in a case called Stacey.

They say that to be reasonable there must be some

evidence which points to it.

DEANE J:  But they regard "reasonable" as referring to the

possibility of the hypothesis being correct, not to
the nature of the hypothesis as explaining the

connection.

MR MAURICE:  Yes, that is so, Your Honour. They say there

has to be some evidence to support the hypothesis. There is really two limbs to their approach; sc::1e

evidence to support the hypothesis and the

hypothesis must have - these are their

words - reached a "degree of acceptability or

credibility". That seems to be referring

particularly to where you are dealing with diseases

of unknown aetiology.

BRENNAN J: This is the passage which appears at the bottom

of 387, is it, which you are speaking about?

MR MAURICE:  Yes, it is, Your Honour. That really

represents the view. No one's ever departed from

that, and a corollary to that is that if the

problem if one of aetiology, of medical knowledge,

concerning the causes of a particular disease

process, it does not have to appear that it is the

preferred view of the medical profession that this

is the cause or that this is not the cause. You

only have to show that it has some level of

acceptance, some degree of credibility. It is not

just somebody propounding an heretical view about

cause and effect.

TOOHEY J: It might be. It might be more useful once you

have moved from subsection (3) to subsection (1) to

abandon the language of hypothesis.

MR MAURICE:  Indeed, Your Honour. One of the problems is

that now everybody is framing their reports in the

language of hypothesis and it becomes unmuddled, no

one knows whether their understanding of the words

"reasonable" and "hypothesis" corresponds with the

Tribunal's and the c)proach accepted by the Federal

Court. Doctors are .:o longer just simply

expressing their opinions.

DEANE J: If you take that explanation on page 387,

Mr Bannon would seem pretty clearly to have

disregarded the word "obviously" and adopted the

approach that it was enough if he accepted evidence

Bushell(2) 22 31/3/92

that on the balance of probabilities it was

fanciful or wrong.

MR MAURICE:  Yes, Your Honour. The problem is that it was

East's case that sort of charted this course which

subsequent decision making has taken. In East's

case, one cannot select a passage and say "The

Federal Court went wrong here", but what they did

was to approve without discussion the Tribunal's

approach of weighing the evidence in support of the

applicant's claim against the evidence relied upon

by the Commission. There is no doubt that that set

the course for the future decision making. His Honour, at page 388, commencing at line 2,

seems to suggest, and he has done it in other

decisions, that really all that subsection (3) is

concerned with is questions of aetiology.	He says
in East it was established:

that, by requiring a reasonable hypothesis

consistent with the known facts of the

veteran's case, the Legislature had dealt with

the problem which arises when the veteran's
disease or disability has an unknown

aetiology.

We have said that one cannot draw that conclusion.

And then he goes on, in the next paragraph, to say:

A reasonable hypothesis will ordinarily

be established if a responsible medical

practitioner, speaking within the ambit of his
expertise, and after considering the

particular facts of the veteran's case, puts

forward a theory of a likely, in the sense of

a realistically possible, not fanciful, causal

connection between war service and the

veteran's disability.

Now, one could perhaps not quarrel with that

sentence taken by itself but, in a sense, it is a

question of "Do what I say", not "What I do",

because he then goes on to approve a process

whereby our:

responsible medical practitioner, speaking

within the ambit of his expertise ..... puts

forward a theory -

which fits his description, and have then been shot

down after regard is had to the contrary opinions

of the Commission's doctors.	He then goes on to
say:

The veteran's claim may be dismissed if the

decision-maker is satisfied beyond reasonable

Bushell(2) 23 31/3/92

doubt on all the evidence that any necessary

element of fact did not exist, or that the

theory was, in the circumstances of the case

completely untenable.

It creates the illusion that there is some work for

subsection (1) to do, but no case has yet been

found in which it is given a role. It seems to be

a logical extensions of the fact versus opinion

dichotomy which he is propounding, that there is

some distinction between medical opinion evidence

and evidence of pure fact, that subsection (3) is

not concerned with evidence of pure fact, but where

the Tribunal has taken that view, following the

lead given in Webb's case to that effect, it has
been told, "No, no, that is something in respect of

which you have to reach some level of satisfaction in order to be able to form the opinion that there

is, or is not, a reasonable hypothesis".

And then he goes on to gloss this by saying:

Of course, to be reasonable an hypothesis

must be responsible.

This is the mailed fist coming out, and that is

what justifies - this gloss justifies considering

other contradictory proofs:

Therefore an element of proof may be involved

in the application of s. 120(3).

Then he goes on, we would suggest, to confuse

two different things: how you define a reasonable

hypothesis and the process by which you form the
opinion to which subsection (3) refers. Then over

the page, in the middle of the page:

In the light of my opening remarks, I do

not propose to discuss whether the particular

hypothesis put forward by the medical

practitioners called on behalf of Mr Bushell,

and for which there was "some evidence" but no

"hard evidence", to use the terms of Professor

O'Rourke, was a reasonable hypothesis. That

was a matter for the Tribunal. But I should,

however, take the opportunity to emphasise

thats 120(3) is concerned with an hypothesis,

a theory or supposition, whilst s 120(1) is

concerned with the determination of facts,

including disputed medical facts.

We would respectfully submit that is a distinction

without a difference.

BRENNAN J: Well, that would shoot your case down in flames

if your last proposition is right.

Bushell(2)	31/3/92
MR MAURICE:	No.

BRENNAN J: It is a distinction which your case depends on,

is it not?

MR MAURICE:  No, but the way he puts it is - the

distinction, Your Honour, between - I will put it

another way. To say that subsection (3) is

concerned with something entirely different to

subsection (1) in the way he suggests is not

correct, in our submission, Your Honour.	I suppose
it depends how you read it, Your Honour.

But he goes on - and this is perhaps an

important recognition of a point we rely heavily

on:

To require, in the consideration under

s 120(3), too strict a proof of the validity

of an hypothesis would be to subvert the
operation of s 120(1).

Now, here I can say, I think with some confidence, that is a clear confusion between how you define a

reasonable hypothesis and the process by which you

become satisfied that one does or does not exist,

because on the one hand they are saying that to be

a reasonable hypothesis as a matter of definition

it has got to have some acceptability, and that

somehow the operation of section 120(1) has got

something to do with that. At page 390 he

discusses the evidence and then at page - - -

MASON CJ: Is it necessary to spend all this amount of time on the judgments? Justice Davies' judgment really

puts the case as you want to put it, does it not?

Subject perhaps to some modification of the central

paragraph on page 389?

MR MAURICE: It certainly highlights the problem,

Your Honour, and His Honour is perhaps in the

middle position, so the majority are taking the

view that there is nothing for subsection (1) to

do, Justice Davies is searching for a role for it

to play. Yes, indeed, Your Honour. There is no

need to once it has been grasped that there are

these difficulties, and I will not take up any

further time with his judgment.

Perhaps the point I need to make about the

judgment of Justices Morling and Neaves has been

made by referring Your Honours to the order they

made, which says it all really. I ought, however,

Your Honours, refer you to the way they overruled

Justice Wilcox's decision. That appears commencing

at page 398 in the last paragraph, that the

evidence accepted by Mr Bannon:

Bushell(2) 31/3/92

was not capable of establishing the conclusion

which he reached.

They point out that that argument succeeded before

Justice Wilcox. They said over the page:

there is much to be said in support of the

conclusion reached by Wilcox Jon this

issue ..... there was sufficient material before him to enable him to reach the conclusion that

it did not raise a reasonable hypothesis -

and they then refer to extracts from the evidence

of Dr Freeman, Professor O'Rourke and Dr Brender,
but some of that evidence at least is tainted
evidence because it is contrary to other findings

of the Tribunal. At line 14, where it says:

In this case severe anxiety developed in the

absence of hypertension. Later severe

hypertension developed in the absence of

anxiety.

That was obviously rejected by the Tribunal. Then

over the page, a long passage from Dr Brender's

report is set out, but that too must have been

rejected by the Tribunal because at line 11 it

says:

To postulate that any stress that Mr Bushell

might have suffered during war service between

1941 and 1946, and which was not documented as

leading to even transient rises in blood
pressure, could produce, in 1972, a sustained

elevation in blood pressure leading to a

diagnosis of essential hypertension is, in my

opinion, fanciful.

That of course is tainted.

BRENNAN J: But all that the judgments say is that there was

material which would support a finding by Mr Bannon

that the hypothesis was unreasonable, but your

complaint, as I understand it, was that it is not a

question of whether there was evidence which would

support a finding, but whether Mr Bannon directed
himself correctly in approaching the finding under

subsection (3).

MR MAURICE:  That is our first argument. We still seek as a

second argument, Your Honour, to have the decision

of Justice Wilcox upheld if we are wrong on the

first. It is an alternative ground; it accepts

that the approach taken by the Tribunal was correct

in resolving the matter under subsection (3).

Bushell(2) 26 31/3/92

But we say, however, even if that approach was

correct, here he has identified, as he had to, the

evidence which he found acceptable, and it is

incapable as a matter of law of supporting the

conclusion which he reached. The Full Court could

not properly overturn that decision by referring to

evidence which he had plainly rejected.

If I could take Your Honours then to our submissions. Our primary submission is set out in

paragraph 1 - before I do that, might I hand up to

Your Honours a set of the various sections dealing with standards of proof in this legislation and the

legislation which it has replaced. These may be

useful in understanding some of the judgments.

BRENNAN J:  What is the section which confers the relevant

entitlement on the present appellant?

MR MAURICE: Section 13, Your Honour, read with section 9.

MASON CJ:	What are you going to do now, Mr Maurice?
MR MAURICE:	I was going to take Your Honours briefly to

Byrnes' case where Justice Lee - it is as very

recent decision - in a dissenting judgment has, in

an attempt to reconcile 121 and 123, put forward a

view similar to that which we are putting forward,

Your Honour. I was then going to take the Court to

- the main exercise, Your Honour, would be to go to

Law and O'Brien and to refer the Court to the

minister's second reading speech in Hansard when

this legislation was introduced.

MASON CJ: Well, you might do that as quickly as you can.

MR MAURICE: Yes, I will, Your Honour. In the second

paragraph of our submissions we cite Byrnes, a very

recent decision. It was a case in which the

veteran had ricked his neck in a diving accident

when he was stationed at Townsville in 1943. He

sought a pension for cervical and thoracic

spondylosis. His evidence, which was unchallenged,

was that he had had neck pain since 1943.

Two orthopaedic specialists gave evidence in

connection with the claim, one for the veteran and

one for the Repatriation Commission. Both agreed

that trauma to the cervical spine of sufficient

severity could trigger the onset of spondylosis.

The veteran's doctor said, in effect, that it was

reasonably possible that the veteran's spondylosis

was linked to his diving injury and he was not

seriously challenged on that.

The Repatriation Commission's doctor said that

the injury in 1943 was not of sufficient severity

Bushell(2) 27 31/3/92

to be a cause in this case which, I suppose

indicates that it was a dispute about primary fact
rather than aetiology, the severity of the injury

in 1943, and he considered it very unlikely to have

been the cause, saying it was a 1 in 20 chance. He

thought the probable cause was the ageing process.

The Tribunal rejected the claim and

Justice Einfeld dismissed an appeal and then the

Full Court dismissed an appeal from his decision,

Justice Lee dissenting. In separate judgments, of

Justices Beaumont and Burchett, held that in

but, none the less, I find it's not reasonable in

the context of this section".

MS BEAZLEY:  No, Your Honour, looking at the first

proposition I thought Your Honour was putting

DEANE J: But that is what would be involved.

MS BEAZLEY:  Dr Brender and Dr Freeman, in this case, were

on the same side.

DEANE J: I have got them wrong. Well, Schiller.

Bushell(2) 71 31/3/92

MS BEAZLEY:  Yes, well then, I answer the matter

differently. If one looks at Dr Brender, I accept him 60 per cent right. I looked at Dr Schiller, I

think he is 40 per cent right.

DEANE J:  "I think there is a 40 per cent chance that he is

right".

MS BEAZLEY:	Thenk, in our respectful submission, he would have to determine whether there was material behind
Dr Brender's opinion - - -

DEANE J: That is not what he has done. What he has done

is, he has said - and the percentages are probably

out, but - there is a 60 per cent chance,

Dr Brender, a 40 per cent chance of Dr Schiller,

there is a 60 per cent chance that Dr Brender is right.

therefore, there is a 60 per cent chance that

MS BEAZLEY: In which case, as a matter of fact, he found

that Dr Schiller's opinion was not reasonable, and

he was entitled to do that.

DEANE J: In other words, he has held that a hypothesis

which is consistent with a connection and which has

a 40 per cent chance of being right is not a

reasonable hypothesis for the purposes of

section 120.

MS BEAZLEY:  He has held that. He is entitled to hold it.

The percentages made -

DEANE J: That is the issue, is it not?

MS BEAZLEY: It is, with respect, Your Honour, yes. But you

see, Your Honour, the percentages may change. Even

on that assessment of the evidence, Mr Bannon would

have been entitled to find that he was still

satisfied, that he was still of the opinion that
there was a reasonable hypothesis.	He did not do
so.	He considered there was enough in the evidence

on the other side to convince him that it was not

reasonable.

DEANE J:  I follow what you say. You have answered my

question.

MS BEAZLEY:  Your Honours, I think that comes close to

concluding what we wanted to say. However, there

is assistance, in our respectful submission, to be

found in the judgment of His Honour

Mr Justice Morling in Lowerson's case. Lowerson

was referred to by our learned friend this morning,

I think by way of an example of the way the courts have been going about the construction of

Bushell(2) 72 31/3/92

section 120. In our respectful submission, it

would be of assistance to Your Honours because he

correctly goes about that task. The decision is

reported in (1989) 22 FCR, at page 430.

Your Honours might quickly recall that the

factual circumstances were that this was the man

who was an alcoholic, probably because of war
service, might have been an alcoholic and it may

have been because of war service, he had an

accident at 2 o'clock in the morning, that might

have been because he was drunk, in very brief

terms. The Tribunal, in going about its task - if

I could just take Your Honours to page 432 in the first instance - posed a question at about point 6:

The Tribunal said the fact most crucial to the establishment of this hypothesis was

that the veteran was an alcoholic. After referring to evidence as to the veteran's drinking habits, it said -

and they go through what matters were taken into

account. Then at the bottom of that indented

passage, the Tribunal said:

On the whole of the evidence before me, it is not established beyond reasonable doubt that the veteran was not an alcoholic at the time of his death. Accordingly, I must find that

he was."

So they have looked at one little bit of material

which was before him. Over the page, the Tribunal

then took the next step and said, "I've got to look

at the next bit of material before me".	He talks
about this individual having a vulnerable

personality, susceptible to disease like alcoholism

and the like.	Then at about point 3, the Tribunal
said:

In my view, the non-existence of that fact is

not established beyond reasonable doubt."

Then at about point 5, the Tribunal is recorded as

looking at another piece of material before it and

made a separate finding in relation to that:

Certainly, the non-existence of that fact has

not been established beyond reasonable doubt."

His Honour Mr Justice Merling, at page 434, held

that approaching the matter in that way was wrong.

This is the passage which appears at about point 3, the second main paragraph on that page:

Bushell(2) 73 31/3/92

Hence, the -eal question for decision on

it was not. There is nothing in

the appeal is whether the test that the opinion

s 120(3) itself which requires the Commission

to resolve any doubt as to the existence of a

fact in favour of a claimant for pension

unless the non-existence of that fact is

established beyond reasonable doubt.

Then there is reference to East's case.	Further,
at page 436, His Honour, in determining	that the
matter must be returned to the Tribunal	for its
reconsideration, then said:

When the Tribunal reconsiders the matter it

will be open to it to form the opinion that

the material before it raises a reasonable

hypothesis connecting the veteran's death with

his war service if, but only if, the material

points to, and not merely leaves open, the

hypothesis as a reasonable hypothesis. That

is not to say that any fact upon which the

hypothesis is based must be proved on a

balance of probabilities. But it will not be

proper for the Tribunal to proceed on the

basis that if there is any doubt as to the

existence of a fact which it thinks is

material, then the doubt is to be resolved in

favour of the respondent unless the

non-existence of the fact is proved beyond
reasonable doubt.

In our respectful submission, that correctly sets out the task which has to be performed by the

Tribunal in subsection (1) as it is dictated to by the provisions of subsection (3).

BRENNAN J:  Ms Beazley, if - and I know that the analogy is

inaccurate, but if one takes the analogy of a

criminal trial, say a defence of provocation, the

trial judge has to decide whether to let

provocation go to the jury and he has to decide

whether there is, on the evidence, a sufficiency of

evidence to go to the jury, why is it then,

approaching subsection (3), the decision maker does

not have to say to himself or herself, "Well, if

this were going to a jury, would there be anything

here which would justify a jury finding in
accordance with this hypothesis?", because to say

whether a hypothesis is reasonable or not, really,

has to be determined in the light of the evidence

that is before the Court, does it not?

MS BEAZLEY: Absolutely, Your Honour, and that is a

fundamental departure we have with our learned

friends in the approach to the section.

Bushell(2) 74 31/3/92

BRENNAN J:  I wonder if it is, really, because if you have

to ask yourself the question, having regard to the

evidence that is there, would the drawing of an

inference of causation in this case be

unreasonable?

MS BEAZLEY:  In this case before the Court?

BRENNAN J: In this case.

MS BEAZLEY:  Your Honour, as a matter of fact, it would not

have been unreasonable just as, as a matter of

fact, it was a matter open to Mr Bannon, in our

submission, but, on the other side or the coin, of
course, the determination of a reasonable
hypothesis is a matter of fact - it is a question

of fact - then he may be wrong and Waterford's

case, and subsequently Bond, have said that the

decision maker can be wrong, as a matter of fact.

BRENNAN J: Well, if Mr Bannon in this case had said, "I

think 60 per cent chance of Dr Schiller being right

and only 40 per cent of the other doctor being

right", then he would have been entitled to find in

favour of the claimant.

MS BEAZLEY:  He would have been entitled to find in favour

of the claimant.

BRENNAN J:  Now, on the evidence before him, was he legally

entitled to find either way?

MS BEAZLEY:  On the supposition that he considered

Dr Schiller to be 60 per cent right?

BRENNAN J:  I am just saying, on the evidence before him,

was he entitled to find either 60 per cent for

Dr Schiller or 60 per cent for Dr Freeman?

MS BEAZLEY:	Yes, Your Honour.
BRENNAN J: Then, how can you say either of those hypotheses

is unreasonable?

MS BEAZLEY:  Your Honour, because it was open to him to make

such a finding either way, it is our submission

that the legislative scheme requires an opinion to

be formed - and it must be intrinsic to that

opinion formation function that you look at all of the material and determine one way or the other if you can that the hypothesis is reasonable - then

notwithstanding that he may have gone wrong in the

formation of that opinion, that is not a matter of

review under section 44 of the Administrative

Appeals Tribunal.

Bushell(2) 75 31/3/92

So we simply answer it, Your Honour, by saying

that in this case the challenge is not rightly

made. But even if one could, in a different

tribunal, or if a different tribunal had a

different opinion as to the factual matter, that

does not undermine Mr Bannon's decision because the

legislative structure under section 120 says that a

reasonable hypothesis is a matter of fact and not a matter of law and the appeal is only on an error of

law and the authorities quite clearly say that an

erroneous finding of fact is not an error of law.

But that is a different proposition altogether from

determining whether or not in making the finding

that he did he misconstrued subsections (1) and

(3). They are our submission, Your Honour.

MASON CJ: Yes, thank you, Ms Beazley. Yes, Mr Maurice?

MR MAURICE: Nothing in reply.

BRENNAN J:  Mr Maurice, could I ask you a question before

you resume your seat. If there is a finding under

subsection (3) that there is a reasonable

hypothesis, how could there be a finding adverse

under subsection (l)?

MR MAURICE: There cannot be, Your Honour. There cannot be

unless, in forming the opinion that there is a

reasonable hypothesis under subsection (3), you

have not performed a process of adjudication

between the material which has led you to that

opinion and material which is in conflict with it.

BRENNAN J: Thank you.

MASON CJ:  The Court will consider its decision in this

matter.

AT 3.25 PM THE MATTER WAS ADJOURNED SINE DIE

Bushell(2) 76 31/3/92