Bushell v Repatriation Commission

[1991] HCATrans 186

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S55 of 1991

B e t w e e n -

ALLEN WILLIAM BUSHELL

Applicant

and

REPATRIATION COMMISSION

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J

McHUGH J

Bushell 1 5/8/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 AUGUST 1991, AT 3.20 PM

Copyright t~ the High Court of Australia

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

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

applicant. (instructed by the Director, Legal Aid

Commission of New South Wales)

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

learned friend, MR A. ROBERTSON, for the

respondent. (instructed by the Australian

Government Solicitor)

MR MAURICE:  Your Honours, we have prepared an outline of

our submissions in this matter and together with a
copy of section 120 and the authorities referred to

in our submissions, might we hand the outline up?

MASON CJ: Yes.

MR MAURICE:  Your Honours, section 120 lies at the heart of

veterans' entitlements and on this application we

say the Court may seize the opportunity of giving

back the veterans the promised standard of disproof

provisions encapsulated in subsection (1) and at

the same time greatly simplifying the operation of

section 120 in practice. It may do that by

adopting the approach advocated by the progenitor

of subsection (3), Justice Brennan. The

alternative is to relegate subsection (1) to a

state of permanent unemployment.

We say in relation to this application, six

things are clear beyond doubt. Firstly, the

drafting instructions for subsection (3) came

straight from Justice Brennan's judgment in

O'Brien; the legislature has picked up

His Honour's language. Secondly, Parliament

intended to adopt the approach outlined in that

judgment. That is made clear in the relevant

second reading speeches. Thirdly, that that
approach necessarily involves resolving competing

hypotheses under subsection (1). Fourthly, that

there were competing hypotheses in this case.

Fifthly, that the conflict between those hypotheses

was resolved without reference to subsection (1)

and, sixthly, that consistently with its approach

Webb, to the total emasculation of subsection (1).

since the Full Court decision in the

There is perhaps no better way of illustrating

our point, Your Honours, than by drawing a

comparison between what happened in this case or

what has happened in this case so far and what

happened in O'Brien's case. Both cases are on all

fours; both were cases in which the veteran's
condition in relation to which a pension

entitlement was claimed was essential hypertension

and both were cases in which the veteran was said

Bushell 2 5/8/91

to be suffering from an anxiety state - a

war-caused anxiety state~ which had contributed to

the development. So it was argued on one side, of

essential hypertension; on the other side it was

argued that no such hypothesis of connection could

be postulated. In both cases then there were well-

respected medical experts giving evidence on both

sides of the question.

In the O'Brien case the dissenting judges,

Justices Murphy and Brennan, having read section 47

of the Repatriation Act, which has now been
replaced by section 120 as if subsection 120(3) of

the present legislation were part of the then

statutory scheme, held that the veteran could only

be refused his pension if the tribunal was

satisfied beyond reasonable doubt that there was no

connection between his war service and his high

blood pressure. In the present case, Mr Bushell

has been denied his pension claim without reference

to that standard of proof.

Indeed, Your Honours, it is part of the

unsatisfactory state into which the interpretation

of section 120 has fallen that all the disputed

claims appear now to be resolved under

subsection (3) and in doing so nobody talks about

the standard of proof which they are applying.

MASON CJ:  Now, Mr Maurice, am I correct in thinking that in

this case the Federal Court applied the

interpretation of the section in accordance with

East v Repatriation Commission?

MR MAURICE: It depends, Your Honour, with respect, upon

what one says that East decides. We do not have

any particular quarrel with East. Where the line

of decision making appears to have gone off the

rails -

MASON CJ: Well, I am looking at page 39 where it was put on

subsection (3) - the top of page 39.

MR MAURICE:	The question cannot be answered "Yes" or "No", Your Honour. There is no essential conflict
between the way the Federal Court approached this case and the decision in East. The conflict does
not_really arise until one looks at Webb where the
Court began to take the view, more clearly, that
where you have competing hypotheses - and that
means conflicts of any sort in the evidence - they are resolved solely within the framework of
subsection (3) and there is no need to have any
recourse to subsection (1) at all. That is the
view that was applied in this case and it is
consistent with the view which the Federal Court

Bushell 3 5/8/91

has developed, principally in Webb, Your Honour,

rather than East.

MASON CJ: So, you accept East but you do not accept Webb?

MR MAURICE: That is so, Your Honour. If I could say this

about East, Your Honour: the point that was argued

in East before the Federal Court was this, that in

the face of a finding by the tribunal, that there

was nothing in the evidence which pointed to a

connection between the veteran's war service and

the condition in respect of which a pension was

claimed, it was still contended that a reasonable

hypothesis had been raised because it was a

possibility and, as was pointed out by the Full

Court in East, that meant that subsection (3) had

no work to do.

DEANE J:  Mr Maurice, can I take you back? I do not quite

follow what assistance you get from

Justice Brennan's judgment in O'Brien's case - - -

MR MAURICE:  Can I take Your Honour to the passages which we

say

DEANE J:  - - - in that if the legislature has adopted what

His Honour's view of the section was, His Honour

found that the finding of no connection was

justified. Have I missed something?

MR MAURICE:  No. With respect, Your Honour, His Honour did

not find that the finding of no connection was

justified. He said that the tribunal would have to

be satisfied beyond a reasonable doubt that the

finding of no connection was justified.

DEANE J: But he set aside the Full Court's decision

quashing the tribunal's decision.

MR MAURICE:  He would have done that, Your Honour, except

that he was in the minority.

DEANE J:  I just cannot follow how the judgment helps you.

MR MAURICE: Well, may I take Your Honour to the passages

which we say are right on point? They really pick
up a theme, Your Honour, which was developed by

His Honour Justice Brennan, along with

Chief Justice Bowen and Mr Justice Lockhart in the

Law case in the Full Federal Court, where the view

was taken that provided there was some evidence
which pointed to a hypothesis of connection then

you move to the second stage of having to dispel

that hypothesis beyond a reasonable doubt. But

His Honour consistently, with that view, in O'Brien

at page 437, at the bottom of the page and going to

the top of the next page, makes the point that

Bushell 4 5/8/91

unless you read some threshold requirement into section 47 then a claim must be granted in the:

absence of material tending to prove the

existence of the criteria of eligibility -

but, as he says:

The provisions of s. 47(2) need not be construed to have and, in my opinion, do not

have so absurd an operation.

So, he implied into section 47, as it then

was, a threshold requirement which he described in

terms as a requirement whereby a reasonable

hypothesis must be raised on the materials before

the tribunal. It is clear all the way through his

judgment, Your Honours, that where other materials

before the tribunal suggest an alternative
hypothesis, that the resolution of the conflict

between the two hypotheses is to be dealt with

according to the criminal standard and the

hypothesis of connection has to be disproved beyond

reasonable doubt.

The critical passage is, in that regard,

Your Honours, in the middle of page 438 where, at

point 4:

Section 47 thus operates in a context where an

investigation has been carried out with

reasonable diligence and where all the

relevant facts ascertained in the

investigation and furnished by the claimant

are before the decision-maker. If the facts
thus ascertained support a reasonable
hypothesis that the claimant is entitled to a
benefit under the eligibility provisions of

the Act, the Board or the Commission must

determine to grant the claim.

And then of particular importance, Your Honours:

If a reasonable hypothesis of entitlement

arises on some of those facts, the Board or

Commission must determine to grant the claim

unless other facts dispel the hypothesis

beyond reasonable doubt.

Then over the page, Your Honours, he addresses

specifically the problem of competing hypotheses.

That is on page 440 on the last paragraph on that page where he says:

But where the material before a decision-maker

gives rise to competing hypotheses, one

affirming an entitlement, the other denying

Bushell 5/8/91

that entitlement, and it is possible

rationally to determine whether the

affirmative hypothesis is dispelled beyond
reasonable doubt, it is the function of the

Board, the Commission or the AAT, as the case

may be, to decide the question.

And he goes on to talk about how that may be done.

He talks about the function of determination on the next page.

DEANE J: What I had in mind are the two paragraphs at the

bottom of page 441 where His Honour applies that

approach to a case that reads very like the present

case and even some of the medical witnesses seem to

be doing the rounds again.

MR MAURICE:  Yes, Your Honour. He just says, as we

understand it, Your Honour, that he was not

persuaded that the tribunal did not apply what he

said was the correct approach.

DEANE J: But he seems to suggest that Mr Bannon's statement

that who was he to adjudicate upon conflicting

opinions of medical experts which has been seen by
everyone in the Federal Court as an unjustified

statement was correct - in that second-last

paragraph of page 441.

MR MAURICE:  Yes, Your Honour, but if one reads on, if I

could take Your Honour to the sentence I had in

mind, beginning at the bottom, the third last line

on the page:

The AAT concluded that although there was

medical evidence to support the claim the

countervailing medical evidence had shown it

to be wrong. In my opinion, the AAT had

grounds on which it was entitled to find

beyond reasonable doubt that there was no

causal connexion between Mr O'Brien's

essential hypertension and his war service.

Now, there has been no such finding in this case

and, Your Honour, we do not understand the majority

in the Federal Court to have reached the decision

which they did on the footing that Mr Bannon made

su~h a finding.

The majority in the Full Federal Court in this

case have applied what has now become the orthodox

approach. They say that if you have conflicts in

the evidence, if you have competing hypotheses, to

use Justice Brennan's language, you resolve them

within the confines of subsection (3) and if you

decide there is no reasonable hypothesis, then that

is the end of the claim. If you decide there is a

Bushell 5/8/91

reasonable hypothesis, that is the end of the contest because the existence of a reasonable

hypothesis arrived at after an adjudication is

inconsistent with a finding of being satisfied

beyond reasonable doubt that no sufficient evidence

of connection exists. But that is all done without reference to any standard of proof. No standard of

proof appears to be being applied and this case

really illustrates that. If any standard is being applied it is being applied sub silentio and it is

the civil standard.

I do not know if that finishes dealing with

Your Honour's point, but we respectfully submit

that it is very clear from reading

Justice Brennan's judgment there and reading what

he had to say on the Law case, that he has always

taken the view that where there are conflicts in

the evidence, provided there is some evidence
pointing towards a hypothesis of connection - a

rational hypothesis of connection - where there are conflicts, they would have to be resolved according

to the standard set by subsection (1). So,

currently, there is no work for subsection (1) to

do; the adjudication is made under subsection (3).

MASON CJ:  I have not followed what, in effect, went wrong

in this process of interpretation. Now, as I

understand it, in East's case the Full Court of the Federal Court relied on Justice Brennan's judgment. In particular, cited the passage upon which you

principally rely.

MR MAURICE:	Yes, Your Honour.
MASON CJ:	Now, what has happened since to indicate that the Full Court of the Federal Court have departed from
that interpretation?
MR MAURICE:	Can I take Your Honour to - well, perhaps a

good way of illustrating it is this, Your Honour.

If one goes to the judgment of Mr Justice Wilcox in

this case, at page 24 of the application book at

line 6 His Honour says:

The scheme of s.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 connecting the

injury, disease or death with the

circumstances of the particular service

rendered by the person." In other words, if

the evidence includes an hypothesis, the
reasonableness of which is supported by expert

opinion and which the Tribunal is not

Bushell 7 5/8/91

satisfied is unreasonable, an applicant must

succeed.

Now, that is leaving subsection (1) no work to

do.	He is applying what has now become the
orthodox approach.	He is saying that once you find

that there is a reasonable hypothesis that is the

end of the inquiry.

DEANE J: But there is an underlying assumption though and

that is once the basic facts are ascertained on the
necessary standard - I mean if, for example, in

this case it had only appeared probable or it had

only appeared possible that your client had

essential hypertension, the criminal onus would

come into play to assist him.

MR MAURICE:  Your Honour, that is what we say should be the

interpretation but the criminal onus, on the view taken by the Federal Court, never comes into play.

DEANE J: But here when you have no dispute about basic

facts, and the question is asked, "Is there a reasonable hypothesis which would support the

argument that war-time stress was a contributing

factor to his essential hypertension?", if the

answer is, "There is no reasonable hypothesis which

could support that approach", how can the criminal

onus have any further function to play?

MR MAURICE:  Your Honour, we say that all that

subsection (3) was supposed to do was to provide a

starting point. If there was some evidence - and

necessarily opinion evidence here because the issue

was whether there can be a connection between

anxiety and essential hypertension - to the effect

that there was or could be such a connection or

that it was a risk factor - which is the same thing

- and that evidence was not, on its face, absurd,

too remote or fanciful, then you have got over the

threshold.

DEANE J:  I can see the appeal of that approach but it takes

me back to my query to you about Justice Brennan

because that is in the teeth of what

Justice Brennan expressly said on those paragraphs

in O'Brien.	I mean, he pointed to the fact that
th~~e was competing medical evidence.	He said,

notwithstanding that being the approaches for the tribunal to resolve the question, and here it was perfectly entitled to resolve it the way it did.

MR MAURICE:  Your Honour, with respect, to resolve it by

reaching the conclusion that it was satisfied

beyond a reasonable doubt by the application of the

criminal standard.

Bushell 5/8/91

DEANE J: But if all one is concerned with is the ultimate

scientific question, the facts having all been

established, if there is no reasonable hypothesis

consistent with point (a), why can you not say it

has been established beyond reasonable doubt that

point (a) is not right?

MR MAURICE: Well, you are required, in terms of the

section, to do that, with respect, Your Honour. If

you come to the conclusion there is no reasonable

hypothesis, then you are obliged to do that. But

we say that Justice Brennan was saying that if you

have a medical opinion which is, on its face, not

inherently incredible, absurd, from somebody who is

properly qualified, then the only way you can say

that the hypothesis is being dispelled is if you

can declare yourself satisfied that it has been

dispelled beyond a reasonable doubt, and that is

what he said was open to the tribunal to do in that

case and that is what he took them as having done.

So, with great respect, Your Honour, we do not

accept that what he said is in the teeth of what we

are putting here.

If Your Honour is propounding a distinction

between basic facts and opinion evidence or matters

which are matters of opinion then we would

respectfully submit that that is not a true

distinction. It was distinction which, in order to

grapple with the difficulties of section 120, was

propounded by Mr Justice Davies in the Webb case
and taken up by Mr Justice Foster in that case.

Both of them seem to suggest that somehow

subsection (3) is concerned only with medical
theory and subsection (1) is concerned with the

basic factual data.

With respect, Your Honours, we would submit

that there is no justification in the application

of this section as a whole for distinguishing

between facts which are a matter of opinion and

indeed, is a view from which Justice Davies would	facts which are not a matter of opinion and that,
now seem to have moved away. If one goes to his
judgment in Mr Bushell's case, if I could take
Your Honour to that, there are two passages of
importance, one at page 30 in the paragraph in the mid~le of the page. If I may preface what I have to say by this remark, Your Honours: the majority
in the Federal Court do not appear to have squarely
addressed our submission in this respect but
His Honour Mr Justice Davies does here where he
speaks of:

A reasonable hypothesis will ordinarily

be established if a responsible medical

practitioner, speaking within the ambit of his

Bushell 9 5/8/91

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. That being done, the

s. 120(1) standard of proof will apply.	The
veteran's claim may be dismissed if the

decision-maker is satisfied beyond reasonable

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.

But that view is not the view which is being

applied in practice and it is not seen as being the

view, despite what His Honour says there, for which

Webb is authority.

Over the page, His Honour says, starting at

line 20 on page 31:

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.

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).

And, indeed, that is what has happened in this
case, in our respectful submission, Your Honour,

and Mr Justice Davies, although his reasons perhaps

are not altogether clear, wanted the whole case to

go back and presumably to apply that approach

whereas the result now is that the case goes back

limited to the issue of the connection between

alcohol and this man's essential hypertension, and

that is because the majority eschew the view that

you resolve disputes between medical practitioners

within the context of section 120(3) without
reference to the criminal standard at all and if
you decide them adversely to the veteran, that is

the end of the case, and if you decide them in his

favour, then he must succeed. So, that leaves no

work, again, for subsection (1) to do. There is a

clear conflict, Your Honours, between the decision

of Mr Justice Davies and the decision of the

majority in that respect.

DEANE J:  Mr Maurice, can you point to where, in the

majority decision or judgement, you say

Their Honours have gone wrong?

Bushell 10 5/8/91

MR MAURICE: It is difficult, Your Honour. It is just in

the application to the facts because here you have

a case where it is beyond argument that there were

two medical experts who gave viva voce evidence

supportive of a hypothesis of connection before

Mr Bannon, and you had two medical experts on the

other side, and he purported to make an
adjudication of that conflict solely within the
confines of subsection (3) and that course was

approved. It is difficult to put a finger on a

passage where the divergence of opinion is clearly

articulated because there are parts in the majority

judgment where they say, "Well, we agree with what

Mr Justice Davies is saying, and he says the same

thing about the majority judgment", but they part

company in deciding what should be done. But

perhaps the passage that comes closest to it,

Your Honour, is on page 42 where they say, at

line 18:

It must be conceded that the experts

called by the Commission acknowledged that
other experts did not share their views.

Mr Bannon could have come to the view that the

material before him did raise a reasonable
hypothesis connecting the veteran's
hypertension with his war service, but he was
not obliged to reach that conclusion. In our
opinion it was open to him on the evidence to
reach the conclusion which he did.

Now, the only thing that made the experts

supportive of Mr Bushell's claim, made their
hypothesis of connection unreasonable - potentially

unreasonable - was the existence of contrary

opinions by two experts called by the Repatriation

Commission and that passage that I have just

referred Your Honour to is approval to the course

which was followed in this case.

MASON CJ: But Mr Maurice, is not the problem this, that it

was not necessary for the majority to deal with

this question of principle, that you are concerned

with, having regard to the way in which the case
was argued? If you look at page 19, it seems to me

that that central paragraph in Mr Justice Wilcox's

judgment rather identifies the point that was being

argued before him and before the Full Court. And

if- that was the central point then it never became

necessary for the majority in the Full Court to do

any more than, in effect, address that point.

MR MAURICE:  Your Honour, if I could say this: the matters

which were raised before Mr Justice Wilcox may not

have crystallized the way they have before this

Court but the submissions that we are putting

before this Court certainly were pu~ and were at

Bushell 11 5/8/91

the forefront of our submissions in the Full Court.

Nobody took the point that, "Oh well, that wasn't

put before Mr Justice Wilcox", and we were allowed

to argue the point fully. Indeed, the position
taken by Mr Justice Merling was that, "If you are

contending that our decisions, the Full Court
in Webb East

decisions and are wrong, then that is along the lines Your Honour suggests.

a matter which you should agitate before the High

May I say this, Your Honour, whatever else was

raised before Mr Justice Wilcox, it is clear that

it called for a consideration of the proper

approach to be taken to the resolution of competing

hypotheses under section 120. It might not have

majority have not addressed it but not for reasons

been put quite the way we are putting it here and

the way we put it before the Full Court but the

which we are aware of, Your Honour. The short

answer to the submission that was put before

Mr Justice Wilcox would have been, "Well, you have

got two experts, Drs Schiller and Miller, saying

that there can be a link between anxiety and

essential hypertension and that that view can be

applied to the facts of this man's case, to the
circumstances of this veteran. They are properly
qualified doctors. That opinion is not, on its
face, inherently absurd, fanciful or unreasonable;
ergo, you have got a reasonable hypothesis." That

is the end of the matter. There was not any need

to talk about whether he tried the validity of the

theory or simply saw it as an exercise of

preferring the views of one set of experts over the

other. The fact is the argument before him called

for a consideration of the proper approach to the

resolution of competing hypotheses under the

section.

Our contention is that it was always intended

- once the reasonable hypothesis innovation was

introduced into the old legislation and then

reworked back into the new legislation - that once

a veteran could point to some evidence which was

not on its face remote, fanciful or absurd and

which supports a hypothesis of connection, he or

she_was to be entitled to the benefit of the heavy

onus of disproof - those words come from a

judgment, Mr Justice Toohey's judgment, I think, at

the first instance in the Law case - before being

denied a pension. I am repeating myself, Your

Honours, and I apologize for it. The way the

section is being applied in practice and has been

applied in this case is that no veteran ever gets
the benefit of the criminal standard of disproof

provided for in subsection (1).

Bushell 12 5/8/91

MASON CJ:  When one starts to repeat oneself it is generally

time to resume one's seat.

MR MAURICE: It is, Your Honour, and I apologize for having

done so.

MASON CJ: Yes, Ms Beazley.

MS BEAZLEY:  Your Honour, might we hand up an outline of

argument?

MASON CJ: Yes.

MS BEAZLEY:  As Your Honours will see, we specifically raise

a matter which Your Honour raised a moment ago and

that is that the question of law which has been

particularly raised in paragraph 10 in the

affidavit in support of the application for special

leave raises a question which was not raised before

Mr Bannon and the tribunal at first instance nor,

indeed, was it raised, as we read the judgment,

before His Honour Mr Justice Wilcox. We do

concede, Your Honours, that it was raised in the

argument in the Full Court. It was not

specifically raised in the notice of contention,

and we can hand up a copy of that if Your Honours

require, but it was raised in argument. I am also

instructed that in dealing with the argument in the

Full Court, counsel for the respondent, the respondent here, said it was not necessary for the court to deal with it because it was wrong, and we would repeat that contention.

In our submission, this application has to be

looked at on this basis: the matter was argued

upon a particular question which is identified at

pages 18, 19 and also at 39, as we have identified

in our outline of submissions. That proposition,

as it was argued, is a proposition which is

directly based upon what the Full Court said in

East's case. It was dealt with on the basis of

whether or not there was a reasonable hypothesis

and what was meant by that, and to the further

issue of whether the tribunal is entitled to enter

into the arena and determine which of the competing
hypotheses, given that there are competing

hypotheses, is correct.

It was contended always on behalf of

Mr Bushell that Mr Bannon entered into that arena.

Mr Justice Wilcox and each of the members of the

Full Court rejected that contention. We say that

there is no other issue in this case, that any

issue in relation to the interrelationship between

subsections (1) and (3) just does not arise, that

what one has is a direct application of East's case

and the correct performance of his function in

Bushell 13 5/8/91

determining at the section 120(3) level whether

there was a reasonable hypothesis. In that regard,

we would refer the Court to pages 440 and 441 in

O'Brien's case where His Honour Mr Justice Brennan

did deal with the manner in which a court or a

tribunal is required to go about in dealing with

that question.

Might we indicate to Your Honours that one has

to take a little care in reading the decision of

His Honour Mr Justice Brennan because he was

dealing with the provisions of section 47(2), which

is set out at page 437 of His Honour's judgment,

and not with section 120(3) which is in a different

form to that with which His Honour was dealing.

Therefore, when reading his judgment, particularly

at pages 440 to 441, one must disregard the

references to dispelling matters beyond a
reasonable doubt. But might we refer Your Honours

to these passages at page 440, and this is the

fourth last line on the page:

An opinion expressed in or a fact suggested by

the material may be contradicted by ordinary

experience or be otherwise inherently

incredible.	Or the material supportive of the
claim may be internally inconsistent.	Or the

material obtained from the opposed medical
experts, especially evidence given under

cross-examination, may reveal that an opinion

in favour of entitlement is vitiated by a

mistake of fact or by inconsistency with

received contemporary medical science. Or a

lack of personal credibility may deny credit

to material emanating from a particular

source. Or it may be a combination of factors

that leads the decision-maker to reject the

hypothesis of entitlement.

And then, a little further down the page at about

point 3:

Where there are rational grounds available for	resolving a conflict in medical opinion, the
decision-maker does not perform his duty by
pointing to the conflict and saying that the
mere existence of the conflict binds him to
find in favour of the claim. To decide a
claim in that way is to abdicate the function
of determination cast upon him by the Act and
to relegate the decision on the critical issue to the expert whose opinion supports the claim.
It is our respectful submission that what the

Deputy President did was apply that approach, which

His Honour Mr Justice Brennan said was a

Bushell 14 5/8/91

requirement in the performance of the execution of

the duty under the then section 47, and in East's

case the Full Court of the Federal Court, in a way

which has not been overruled in any sense, which

has been accepted, and in circumstances where, as

we have pointed out in our outline of argument, the

High Court refused special leave, concentrated on

the proper application of subsection (3) and the

meaning of a hypothesis and what is a reasonable

hypothesis.

McHUGH J: But it really does come down to this, does it

not, that under the guise of determining whether
the hypothesis is reasonable, you can examine all

the facts of the case for the purpose of holding

that it is not reasonable, and that seems to avoid

altogether the onus raised by subsection (1). In

using the word "onus" I have not overlooked

subsection (6).

MS BEAZLEY:  Your Honour, there is no doubt, in our

end of the day basis because it has to look at the

submission, that when applying subsection (3) the

whole of the material.before it and it must

determine whether it is of the opinion that the
material before it does not raise a reasonable

hypothesis. And then there is the statutory

requirement that there be the connection of the

injury et cetera with the circumstance of a

particular service. So there is no doubt there is

the end of the day test.

McHUGH J: Supposing there was an issue, in this case, as to

whether the applicant suffered from a hypertension,

where would that issue be raised?

MS BEAZLEY: .Your Honour, it would be raised arguably at two

levels, but we would disavow an argument as to that

because we say it is not this case. Quite

obviously, as His Honour Mr Justice Deane noted,

this was a case where one had just no dispute as to

the war service, the condition during war service,
the hypertension, that is the diagnosis, and the

issue was whether or not there was a reasonable

hypothesis as to stress relation and the diagnosed

condition. So we say Your Honour's question does

not- arise and the fact that it does not arise, we

say, ought to put an end to the application.

But to answer Your Honour's question, having determined whether or not there is a reasonable

hypothesis the question which arises is whether
then one has another step under subsection (1) and

that is where the court, the Full Court of the

Federal Court in Webb's case dealt with that issue

and that was subsequently explained by His Honour

Bushell 15 5/8/91

Mr Justice Hill in Gilbert's case. In Gilbert's

case, His Honour Mr Justice Hill said that on the

proper interpretation on Webb's case there is no

question that subsection (1) is otiose, subsection

(1) has its own work to do and it is after a

determination of whether or not there is a

reasonable hypothesis. Your Honour, we are a

little chary of entering into that arena

because - - -

McHUGH J:  Is it not vital to determine that question

because you have to determine what is the relevant

material for the purpose of subsection (3).

MS BEAZLEY:  Your Honour, we do not

McHUGH J: What is the material?

MS BEAZLEY:  Your Honour, we do concede or accept that there

are difficulties of construction between

subsections (1) and (3) which may arise in a

particular case. We say they do not arise here,

quite clearly, and that-is why this case is not a

case for special leave. There is an issue as to

whether subsection (3_). is, in effect, the deeming

provision for the application of subsection (1)

because what subsection (1) says, that provides the

circumstances in which a claim must be granted

given a certain standard of proof, namely, that

where a claim is made:

the Commission shall determine that the injury

was a war-caused injury -

et cetera -

unless it is satisfied, beyond reasonable

doubt, that there is no sufficient ground for

making that determination.

It then in subsection (3) in almost like language

says:

In applying sub-section (l) ..•.. in respect of

the incapacity of -

and the like -

related to service rendered by the person, the

Commission shall be satisfied, beyond

reasonable doubt, that there is no sufficient

ground for determining -

(a) that the injury was a war-caused .....

Bushell 16 5/8/91

if ..... after consideration of the whole of the

material ..... that the material ..... does not

raise a reasonable hypothesis -

with the appropriate link.

McHUGH J: But if you are right and subsection (3) is merely

a working out of the unless clause in

subsection (1) then the words "beyond reasonable

doubt" have no meaning or effect at all, have they?

MS BEAZLEY:  Your Honour, they have a defined meaning or a - I have used the word "deemed". Your Honour, might

I indicate that what I have just put to the Court

is not the approach that has been taken by the Full

Court of the Federal Court in Webb and the

explanation of Webb or the rationalization of Webb,

that appears in His Honour Mr Justice Hill's

judgment in Gilbert's case, which is a first

instance decision which did not go on appeal.	So
my statement to the Court in that regard, in

effect, throws up the fact that there is perhaps a

problem with the interpretation and interaction of

subsections (1) and (3).

But, Your Honours, that problem is not raised

in this case on any of the facts and what one would

have if one wished to go and have that issue

determined in this case - - -

McHUGH J: This is the thing that worries me - and it may be

I bring across notions of reasonable hypothesis in

criminal cases - I do not know whether you are

familiar with it, but a decision in this Court in

Barker where it was held a jury can consider

whether there is a r·easonable hypothesis even

though, in effect, there is no evidence which would

support it because there is no onus on the accused.

Here, in the judgments below, one seems to be looking for a foothold in the evidence to determine whether or not the hypothesis was reasonable.

MS BEAZLEY: With respect, there has to be a foothold in the

evidence at some level because the section quite

specifically directs - - -

DEANE J: Can I add something to that, it is this: is not

th~_basic problem with Mr Bannon's reasons, which

is· hinted at in the courts below, that he seems to
have overlooked the fact that if a respected

medical expert gives evidence of his opinion that

is something which, of itself, carries weight, and

instead of recognizing that he seems to have

treated his function as disregarding the weight to

be given to the fact that a respected medical

expert expressed the view and treated himself as

bound to decide for himself on the material on

Bushell 17 5/8/91

which the medical experts said that they acted, and

that led him to make the statement at the end of

his judgment, and it is quite inconsistent with

that statement, I would have thought, that he had

adopted the approach "I have respected experts on

both sides". That being so there is evidence which

adds support to a hypothesis consistent with the

applicant's case.

MS BEAZLEY: Except for this, Your Honours. There is no

dispute that the Deputy President stated the

correct test, and quite clearly appreciated that.

In our respectful submission, he decided in a way

which His Honour Mr Justice Brennan said was a

correct way between those competing hypotheses.

DEANE J:  I appreciate the force of your reference to

Mr Justice Brennan.' s judgment, but I would have

thought that part of this case may raise a question

about whether what Mr Justice Brennan said there is

correct.

MS BEAZLEY: That may have been so and perhaps, to some

extent, that is what was attempted to be done

before His Honour Mr Justice Wilcox when the

problem, which was identified, was not only the

correct statement of the test and its correct
application on the facts before - or on the
material; I do not say facts because one really, at

that level, in our submission, talks about material

- before the tribunal, permitted the decision maker
to determine that there was no reasonable

hypothesis.

The allegation which was made before

His Honour Mr Justice Wilcox was that Mr Bannon

descended into the arena of fact finding

preferment, in effect, between the competing views,

but what Mr Bannon did was say, "Given all of the

evidence" and there is the reference in the

majority judgment in the Full Court to the various

passages of evidence which support Mr Bannon's

view, that the alternate hypothesis put forward by

admittedly respected medical specialists was

fanciful and on the fringe of medical opinion.

Now, that is the classic test which, in

effect, was propounded in the East case, that that

was-the application of the classic test which was

propounded in East's case, in respect of

subsection (3), and also is the proper application

of the manner in which His Honour

Mr Justice Brennan foreshadowed a proper

interpretation of what is now subsection 120 ought

to be followed. So although it may have been an

argument as to whether Mr Bannon did it correctly

on the facts, there really has been no issue raised

Bushell 18 5/8/91

previously as to the correctness of what His Honour

Mr Justice Brennan said - the passage is at page 440 to 441 - which, in our respectful

submission, anyway, Your Honour, are really a

working out or an indication of the manner in which

the tribunal, at first instance, is to deal with the particular problem, given that the statutory

language is still different at the time that

His Honour was looking at it.

Perhaps I have got to the stage where

Mr Maurice was, of saying that there perhaps may be problems with subsections (1) and (3) and what they

really mean, but that is a problem which does not

arise in this case because this case never went

beyond a finding of the reasonable hypothesis case.

And we again refer to the special leave application

in East's case where the Court specifically

rejected special leave and found that there was no

known obvious perceived error in the statement of
principle in relation to the meaning of

subsection (3). If Your Honours please.

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

MR MAURICE:  Can I just deal with two points raised by my

learned friend, Your Honours. Firstly, it would

have made no difference if this question had been

agitated before Mr Bannon because he would have

considered himself bound by the Webb decision.

Secondly, the reference which has been made in the

written submission in my learned friend's oral

submissions to the refusal of this Court in East to

grant special leave, needs to be looked at. At

page 9 of the transcript, which I understand has
been exhibited to an affidavit that has been filed

in this application by the respondent, one sees

clearly why the application failed.	It is page 9
Your Honours.	Mr Meadows, appearing on behalf of

the applicant, put a number of propositions but

they were reduced by Justice Brennan to this, near
the top of the page:

The proposition that you wish to advance is

this: once you have got the fact of death of
a veteran, then unless it is proved that the

death was not connected to the service, he is

entitled to recover.

MR MEADOWS:  If it is proved beyond reasonable

doubt that there is no connection, yes, he is

entitled to recover.

BRENNAN J: Unless it is so proved, you say he

is entitled to recover?

MR MEADOWS:  Yes, that is right•,

Bushell 19 5/8/91

And as His Honour, with respect, rightly observed: That seems to me to give no effect at all to

the words of subsection (3) which speak about

the material raising the hypothesis.

In other words, the contention that was being put

before the Court there and that was put before the Full Federal Court was that it did not matter that there was nothing in the evidence which pointed to

the hypothesis of connection as long as it remained

open as a possibility. Now, if there is one thing

the East decision is authority for, it is that

before you have got a reasonable hypothesis there

must be something in the evidence which points to

it, and that was said over and over again in the

judgments in the Law case in the Full Federal

Court. And one sees this as being the reason why

East was unsuccessful in the Full Federal Court.

At page 531 of the judgment, at about point 6,

Their Honours say in a joint judgment:

It is said that, contrary to the view of the

Tribunal and whatever may have been the

intention of the Government, s 120, in effect,
retains the O'Brien position: provided that
there is a real possibility of a causal

relationship between war service and

incapacity or death and in the absence of

proof beyond reasonable doubt of facts

negativing that relationship, the claim must

succeed.

That was the proposition that was being contended

for there. We are not putting that proposition at

all; it is the reason why that case failed in the Federal Court; it is the reason why the

application for special leave to appeal failed in

this Court; and if one moves through the transcript

of the application for special leave to page 11,

one finds an exchange between Mr Meadows and

Justice Dawson which is entirely supportive of the

approach which we put to Your Honours, where

His Honour talks about establishing a reasonable

hypothesis as being a first step. And towards the

end of the exchange on that page, at about point 7,

Mr Meadows, in effect, accuses His Honour of

looking at the matter:

in a circular fashion

and then says -

they are one and the same question.

And His Honour says:

Bushell 20 5/8/91

No, they are not.

MR MEADOWS: If a reasonable hypothesis exists

then the reasonable doubt exists.

Which, of course, is the view taken by the Federal

Court nowadays. And His Honour said:

Unless there are certain further proofs.

And he says, towards the bottom of the page,

perhaps taking up something that was in Your Honour

Justice McHugh's mind - - -

MASON CJ: There is a limit to the assistance we can get

from plowing through the transcripts.

MR MAURICE:  Yes, indeed, Your Honour, I have been told not

even to cite them because of that. Those are the

only matters in reply, Your Honour.

MASON CJ:  The Court will take a short adjournment and will

consider the course it will take in this matter.

AT 4.23 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.29 PM:

MASON CJ: There will be a grant of special leave to appeal

in this case.

MR MAURICE: If the Court pleases.

AT 4.30 PM THE MATTER WAS ADJOURNED SINE DIE

Bushell 21 5/8/91