Byrnes, C.J. v Repatriation Commission

[1991] FCA 148

Re: CLIFFORD JOHN BYRNES
And: THE REPATRIATION COMMISSION
No. N G398 of 1988
FED No. 148
Administrative Law
23 ALD 35

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Administrative Law - causal nexus between operational service and medical conditions of war veteran - reasonable hypothesis - opposing views from two experts - decision on evidence is for Administrative Appeals Tribunal on all the material before it

Administrative Appeals Tribunal Act 1975 section 44

Veterans' Entitlements Act 1986 sections 120, 9(1)(a) and (b)

Repatriation Commission v O'Brien (1985) 155 CLR 422

East v Repatriation Commission (1987) 16 FCR 517

Repatriation Commission v Webb (1987) 7 AAR 233 and on appeal (1989( 19 FCR 139

Hamling v Repatriation Commission (1989) 10 AAR 131

Gilbert v Repatriation Commission (1989) 86 ALR 713

Ahrenfeld v Repatriation Commission Einfeld J unreported 29 August 1990

Whetton v Repatriation Commission Einfeld J unreported 5 April 1991

HEARING

SYDNEY

#DATE 5:4:1991

Counsel and solicitors Mr I. Sanderson instructed by Vandenberg Reid Pappas
for the applicant and MacDonald

Counsel and solicitor Ms R. Henderson instructed by the Australian
for the respondent Government Solicitor

ORDER

Appeal dismissed.

Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

JUDGE1

If Justice Brennan had known the volume of litigation and judicial learning which he would be siring when he wrote his powerful and eloquent dissent in Repatriation Commission v O'Brien (1985) 155 CLR 422 that gave birth to section 120 of the Veterans' Entitlements Act 1986 (the Act), I suspect his Honour might have thought again. But of course he did not divine or write the legislation or the judgments which have followed it.

1. This is yet another case involving the application of this section and its apparently tortuous language and unusual legal precepts. It comes to this Court by way of appeal on questions of law pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 from a determination of the Administrative Appeals Tribunal (the Tribunal) given on 15 February 1988. The original decision was given by the respondent as long ago as 2 November 1981 and was affirmed by the Veterans' Review Board on 10 April 1986. It is a matter of deep concern that in the time from the original decision to this one, the applicant veteran has aged from 57 years to 68 years. The Act has been changed several times in that period. It really is appalling testimony to the way some claims are apparently treated. Something must and must be able to be done to expedite the legal processes applicable to this type of claim. I know of no other area of the law where an applicant for a statutory benefit could be required to wait 11 years for the matter to be determined. And there is still a Full Court and the High Court to go.

2. The circumstances of this case are that the applicant servce within Australia from 18 December 1941 to 31 August 1942, and in the Navy outside Australia from 7 September 1942 to 21 September 1945. In February 1943 his neck was injured when he dived into shallow water while serving in Townsville. After some days' hospitalisation he returned to duty with a painful neck. In 1945, while he was working as a stoker on a ship in the Coral Sea, a lump of coal came off a stack and hit him across the back of the head and neck. He was groggy and he suffered "terrible pain" in his shoulders and neck. In 1945 the applicant fell against a bulkhead of the same ship again hitting his head and shoulders. Little or no treatment followed the second and third incidents. He now has cervical and thoracic spondylosis which he claims are due to the three incidents and to working in confined spaces on ships. When he was discharged from the Navy, no complaint of any problem with his neck or shoulders was recorded. Although the applicant says that he suffered from significant pain in the ensuing years, and he had to give up tennis and golf around 1967, he did not seek medical attention for this neck disability until 1975.

3. The claim arises under section 9(1)(a) and (b) of the Act. These provide inter alia that injuries sustained by veterans shall be deemed to be war-caused if they result from occurrences that happen during operational service or if they arise out of or are attributable to any eligible war service. There is no dispute as to the occurrence of all the injuries alleged and that they all happened while the applicant was rendering relevant service. The question is whether a causal nexus existed between the service and the two spondylitic conditions. Section 120 required a finding for the applicant unless the Tribunal considered that the available material did not raise and maintain a reasonable hypothesis of the existence of the nexus and was therefore not satisfied beyond reasonable doubt that the claim should be upheld. There was a significant volume of medical evidence, most of which did not favour the existence of the required nexus. This view was that the spondylitic conditions were age-caused. One orthopaedic surgeon, Dr J.M. Whitty, thought a nexus to be most unlikely. The basis of his opinion, not now relevant in detail for reasons which will appear, was the absence of corroborative radiological changes and of treatment or appropriate injury at relevant times.

4. A general practitioner, Dr R.C. Shapeira, testified to the possibility of a nexus but the Tribunal quite understandably found his report insufficient and unpersuasive. Only one doctor actually supported the hypothesis of a nexus. He was Dr N.J. Rowden, an orthopaedic surgeon. Dr Rowden discounted the absence of radiological evidence; he said that the 1943 Townsville injury had been significant, probably ligamentous, and he attributed the thoracic spondylosis to the heavy labour performed by the applicant as a ship's stoker.

5. The Tribunal decided that the weight of medical evidence and the lack of complaint of and medical treatment for the conditions told against the existence of the nexus. It concluded that none of the occurrences alleged caused severe injury and that the second and third incidents were trivial. As a consequence the Tribunal felt that a causal connection between the war service and the spondylitic changes was no more than a possibility, and thus that no reasonable hypothesis had been raised.

6. This type of assessment of evidence is made every day throughout Australia in our compensation courts and tribunals. It is one with which lawyers are familiar and feel comfortable. The conclusions drawn are generally unappealable as being based exclusively on findings of fact. But counsel for the applicant submits that this approach is inappropriate and impermissible for this Act under the regime prescribed in section 120. He argues that the concept of "reasonable hypothesis" explained in East v Repatriation Commission (1987) 16 FCR 517 at 533 by contrasting an acceptable conclusion or thesis with one that is only "possible", means that only a conclusion which is left as "possible" because there is no evidence to support it is excluded. He says that Beaumont J at first instance in Repatriation Commission v Webb (1987) 7 AAR 233 at 236 (see on appeal (1989) 19 FCR 139 at 144) and Davies J in Hamling v Repatriation Commission (1989) 10 AAR 131 at 136 would reject only "fanciful" expert opinions not based on evidence. The applicant's argument is that so long as there is a duly qualified opinion supporting the nexus or, as counsel put it, a duly qualified favourable opinion plus evidence of the possibility of nexus, there is a reasonable hypothesis.

7. There is more than one reason why that approach is attractive. It would certainly simplify the present apparent difficulty of interpreting the legislation. It also accords with the manifest parliamentary intention of simplicity. This is in part reflected in the explanatory parliamentary memorandum to the forerunner of section 120, which I quoted in Whetton v Repatriation Commission unreported 5 April 1991. It is also reflected by the legislature's refraining from the language of the balance of probabilities and reversal of the usual way of testing the evidence to satisfy the tribunal of fact. A clear intention emerges of a simple system biased away from the normal legal weighing of evidence to determine if a claimant's case is made out, so that it is weighted towards veterans and only denies the most evidentially insupportable of cases.

8. However, the applicant's construction appears to stand uneasily with Justice Brennan's dissent in O'Brien when his Honour said at 437-9:
   

Section 47(2) is a piece of legislative legerdemain. It ensures that, in the administration of the Act, the fulfilment of the prescribed criteria of eligibility for war pensions ... should not be required, but that claims be granted unless it appears beyond reasonable doubt that those criteria are not fulfilled. ... By reason of s 47(2) (the veteran) is entitled to have his claim for a war pension granted unless the AAT was satisfied beyond reasonable doubt that his (disease or condition) is not attributable to that service. A provision that a claim be granted unless a negative appears beyond reasonable doubt suggests that an absence of material tending to prove the existence of the criteria of eligibility must result in the granting of a claim. The provisions of s 47(2) need not be construed to have and, in my opinion, do not have so absurd an operation. Although s 47(2) employs a phrase, "beyond reasonable doubt", that is familiar in criminal proceedings, the sub-section is intended to apply to proceedings which are inquisitorial, not adversarial. The Commission and the Board are concerned with the determination of a claim made in accordance with s 24AA and investigated pursuant to s 24AB. The claimant bears no onus of proof but he may support his claim by such evidence as is available to him: s 24AA(1)(b) and (2). When the investigation is complete the whole of the material is submitted to the Board (or, when the Commission so directs, to the Commission) for its consideration and determination: s 24AB and s 27(2). 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. 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. If the Board or Commission is satisfied that no reasonable hypothesis of entitlement is supported by the facts or that any such reasonable hypothesis is dispelled beyond reasonable doubt, the Board or Commission should reject the claim. Where, on the whole of the material no reasonable hypothesis of entitlement arises, there are "insufficient grounds for granting the claim". (emphasis added) ...

Where, after an investigation has been carried out with reasonable diligence, there is simply no material to raise an hypothesis that the requisite connexion exists between a ... condition and war service, the absence of such a connexion can be inferred beyond reasonable doubt. The inference arises from the absence of any material to suggest the contrary. In determining whether a reasonable hypothesis of entitlement is supported or dispelled by the facts, the Board or Commission is bound to take into account the matters set out in s 47(1)(b). ... Section 47(2) directs the exercise of an administrative power, not the resolution of an issue in contest between adversaries before a judicial tribunal.

It is only when the proceedings pass beyond the Commission and the Commission assumes a role of defending the decision it has made that it is possible to speak of an onus of proof resting on the Commission. No doubt it is convenient in proceedings before the AAT for the Commission to adopt that role but, if the Commission chose not to appear, the function of the AAT would nevertheless be to exercise the powers and to perform the function cast upon the Commission by s 28 (see the AAT Act s 43). The Commission may be said to bear an onus only in the sense that it appears and defends its decision - a decision that will be reversed if the material before the AAT raises an hypothesis of entitlement and the hypothesis is not dispelled. The AAT must act on the whole of the material before it, which may and usually does include material that was not before the decision-maker whose decision is under review. ...

1. (All the sections quoted refer to the previous legislation.) The critical portions of Brennan J's remarks for present purposes are those I have underlined. His Honour's mechanism for the decision-maker is that the evidence raising the reasonable hypothesis must be placed or weighed against the evidence dispelling the hypothesis to determine whether on the whole of the evidence no reasonable hypothesis arises beyond a reasonable doubt.

2. In addition, the decision in East which is binding on me, the views of Beaumont and Davies JJ in Webb and Hamling respectively, to which I pay the abiding respect which is their due having regard to their Honours' deep knowledge and learned consideration of the subject matter but to whom this submission was apparently not made, and the words of section 120 itself, lead to the rejection of the argument. As I mentioned in Whetton v Repatriation Commission, unreported 5 July 1991, I do not take Davies J in Hamling to have meant that it is only necessary for one qualified doctor to suggest a supposition of connection for an applicant to succeed regardless of the weight and content of contrary evidence. Such a case may be successful but it is for the Tribunal to make that decision by determining beyond a reasonable doubt whether the claim has not been made out.

3. The Tribunal's obligation is stated in a number of cases: see for example Gilbert v Repatriation Commission (1989) 86 ALR 713 at 721. It is to consider all the material properly before it and then uphold the claim unless satisfied beyond a reasonable doubt that there are insufficient grounds to do so because this material does not raise and maintain the required hypothesis.

4. Because of the evidence of Dr Rowden in particular, this was clearly a case where a reasonable hypothesis of nexus was raised. The question is whether on all the material before the Tribunal it was maintained or dispelled. If the applicant's argument were correct, one report from one medical practitioner, even a general practitioner with little specialised knowledge of the subject matter, supporting the necessary causal nexus would be sufficient to conclude the matter in the veteran's favour even if there were very many contrary more expert opinions. If this were all that was required, such matters could all be finalised administratively without the need for multiple appeals or reviews. Judicial or quasi-judicial considerations of evidence would be completely unnecessary. Such an interpretation would also encourage "doctor shopping" until a favourable opinion could be obtained. I do not think that the simple scheme apparently desired by the Parliament was intended to be that "simple".

5. Here there were effectively opposing views from two eminently qualified experts. Looked at objectively, each raised a reasonable fully argued hypothesis about the nexus. Either could have been accepted. The Tribunal heard both of them give evidence orally and heard the applicant as well. I have read all this evidence. Having regard to the structure of the section as explained in the cases, the applicant might be thought a trifle unlucky to have had the view in his favour rejected. It is difficult to imagine how, in the context of a need for rejection beyond reasonable doubt and in the absence of an onus on the applicant, a soundly-based opinion by a properly qualified expert would not raise and sustain the necessary hypothesis even in confrontation to an equally qualified opinion to the contrary.

6. But section 120 does not operate so as to deprive the Tribunal of any right to reject the opposite view. I am unable to hold that its alternative finding here manifests a legally erroneous application of section 120 which success for the applicant in this proceeding would require. The Tribunal has to consider all the material to decide whether the reasonable hypothesis is not there. The decision on this question is for the Tribunal to make. This Court cannot interfere with its decision if it is legally open to be made. In my opinion the evidence and a proper application of section 120 provide that option in this case.

7. The appeal is dismissed.