Central Land Council v Chairman of the Liquor Commission of the Northern Territory

[1985] FCA 233

Re: SARAH SYBIL BROWN
And: THE REPATRIATION COMMISSION (1985) 7 FCR 302
No. WAG 63 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Fisher(1) and Lockhart(1) JJ.

CATCHWORDS

Administrative Law - Judicial Review - Repatriation Act - death of former member of Armed Forces from carcinoma - refusal by Repatriation Review Tribunal to grant applicant's claim for war widow's pension - whether on appeal to Federal Court the whole decision of the Tribunal was open to review by the Court - whether on the evidence before it the Tribunal could conclude that it was established beyond reasonable doubt that the member's death did not arise out of or was not attributable to war service.

Repatriation Act 1920: ss. 31, 47, 101, 107VC, 107VG, 107VZZH.

Federal Court of Australia Act 1976: s. 19.

Income Tax and Social Services Contribution Act 1936: s. 196(1).

Administrative Appeals Tribunal Act 1975: s. 44(1)

Administrative Law - Judicial review - Appeal from Repatriation Review Tribunal - Whether appeal limited to question of law - Repatriation Act 1920 (Cth), s 197VZZH(1).

HEADNOTE

An appeal to the Federal Court of Australia from a decision of the Repatriation Review Tribunal is limited to questions of law.

HEARING

Sydney, 1985, May 20; June 7. #DATE 7:6:1985
APPEAL

Appeal from judgment and orders of Toohey J.

R J Meadows (with him P C S van Hattem), for the appellant.

An appeal applies to the Federal Court on a question of law from any decision of the Repatriation Review Tribunal pursuant to s 107VZZH(1) of the Repatriation Act. The jurisdiction of the court to hear such appeals is original jurisdiction and when an appeal is brought the appeal applies not merely upon the question of law but upon the whole decision. The court may re-hear the entire case even if the point of law is bad and must decide, not whether the Tribunal decision was open to it on the evidence, but whether it was correct. (He then addressed submissions to the substantive subject matter of the appeal).

R S French, for the respondent.

The right of appeal under s 107VZZH of the Act is limited to an appeal on questions of law. The section does not confer upon the Federal Court jurisdiction to review the impugned decision unless an error of law is shown. (He then addressed upon the substantive merits of the appeal).

Cur adv vult

Solicitors for the appellant: Muir Williams Nicholson.

Solicitors for the respondent: B J O'Donovan, Crown Solicitor for the Commonwealth.

GFV

ORDER

1. The appeal be dismissed.

2. The appellant, Sarah Sybil Brown, pay to the respondent, The Repatriation Commission, its costs of the appeal.
   
   NOTE: Settlement and entry of orders is dealt with in Order
   

36 of the Federal Court Rules.

Appeal dismissed with costs

JUDGE1

This is an appeal from a judgment of a single Judge of this Court (Toohey J.) dismissing the appellant's appeal from a decision of the Repatriation Review Tribunal ("the Tribunal") that there were insufficient grounds for granting the appellant's claim for a pension under the Repatriation Act 1920 ("the Act").

1. The appellant's late husband ("the deceased") died on 27 April 1974. He was a member of the R.A.A.F. from 11 March 1944 to 18 May 1945 and served in New Guinea from 11 March 1945 to 28 April 1945. The cause of his death was fulminating infection due to widespread malignancy from carcinoma of the rectum. The appellant lodged a claim for a pension on 24 August 1974. The claim was rejected by the Repatriation Board on 26 September 1974 and appeals to the Repatriation Commission were subsequently disallowed. There was a further appeal to the War Pensions Entitlement Appeal Tribunal which was disallowed in 1978.

2. On 17 February 1981 the appellant requested the Commission to reconsider its earlier decision pursuant to sub-s. 31(1) of the Act which provides as follows:-
   
   

"(1) Whenever it appears to the Commission that, under this Act, sufficient reason exists for reviewing any assessment, decision or determination in relation to pension (other than a service pension) the Commission may review the assessment, decision or determination."

1. The Commission decided that it did not consider sufficient reasons existed for it to review the case. The appellant then applied to the Tribunal pursuant to s. 107VC of the Act for a review of the Commission's latest decision. The Tribunal considered that the reasons of the Commission for rejecting the appellant's claim and the medical opinions on which they were based established beyond reasonable doubt that the deceased's death did not arise out of or was not attributable to his war service. The Tribunal therefore decided that the appellant was not entitled to a pension under s. 101 of the Act. On appeal to this Court from that decision of the Tribunal the learned primary Judge held that it was open to the Tribunal to make that decision.

2. The appellant's argument on appeal to this Full Court was twofold. First, it was submitted that, provided some question of law is involved in the decision of the Tribunal, the whole decision, and not merely the question of law, is then open to review by the Federal Court. Counsel relied heavily on a stream of authority in the High Court to the effect that, where a decision of a Board of Review made under the Income Tax and Social Services Contribution Assessment Act 1936 ("the Assessment Act") involves a question of law, then the whole case, and not merely the question of law, is subject to an appeal brought from that decision to the court having jurisdiction to hear the appeal and is then open to review: Ruhamah Property Company Limited v. The Federal Commissioner of Taxation (1928) 41 CLR 148; Krew v. Federal Commissioner of Taxation (1971) 45 ALJR 249; XCO Pty. Limited v. Federal Commissioner of Taxation (1971) 124 CLR 343.

3. Counsel for the appellant submitted that, as the jurisdiction that the Federal Court exercises on appeal from decisions of the Tribunal is within its original, not its appellate, jurisdiction (see Federal Court of Australia Act 1976, sub-s. 19(2)) the parties are not limited to the material which was before the Tribunal, but are entitled to adduce before this Court fresh evidence in support of or in answer to the appeal.

4. In our opinion there is a fundamental difference between appeals brought from decisions of Boards of Review to Supreme Courts pursuant to s. 196 of the Assessment Act and appeals brought from decisions of the Tribunal to the Federal Court under the Act pursuant to s. 107VZZH. In the former case the relevant provision (sub-s. 196(1)) provides:-
   
   

"(1) The Commissioner or the taxpayer may appeal to a Supreme Court from any decision of the Board that involves a question of law."

Sub-section 107VZZH(1) of the Act is cast in materially different language, namely:-

"(1) An applicant in a proceeding before the Tribunal or the Commission may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding."

1. The language of s. 196 supports the view that it is the whole decision of a Board of Review that is subject to appeal to a Supreme Court provided the decision involves a question of law. This is the construction which the High Court has placed upon s. 196 for many years, but we see no warrant for transferring that reasoning process to s. 107VZZH which is couched in very different terms.

2. The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. Although it is necessary in some appeals pursuant to s. 107VZZH for this Court to consider the evidence before the Tribunal (for example, where the alleged question of law is that there is no evidence upon which the Tribunal could reasonably support its finding) the Court should be cautious before embarking on its own analysis of the evidence where the task of assessing facts has been placed by the legislature in the hands of specialist bodies such as the Tribunal and the Commission which are equipped to deal with them.

3. Thus the language of s. 107VZZH, the legislative framework in which the section appears and the role played by appeals to the Federal Court from decisions of the Tribunal lead us to reject the submission of counsel for the appellant. But there are other indicia in the relevant provisions of the Act which confirm our view.

4. When the Commission or a Board hears and considers a claim or application the Act expressly provides that it is not bound by technicalities, legal forms or rules of evidence and that it shall act according to substantial justice and the merits and all the circumstances of the case and shall take into account any difficulties that for any reason would lie in the way of ascertaining the existence of any fact, matter, cause or circumstance: see sub-s. 47(1) in the case of the Commission or Board and s. 107VG in the case of the Tribunal. The Act makes no similar provision with respect to appeals to the Federal Court from decisions of the Tribunal.

5. If the legislature intended this Court to have a general power of review of the Tribunal's decision one would expect to find a provision relating to the Court similar to sub-s. 47(1) and s. 107VG. A review by this Court in the absence of a similar provision in the Act with respect to the Court would lead to the review procedure becoming unbalanced and productive of confusion, uncertainty and perhaps injustice.

6. There are sound reasons why the legislature has not applied provisions such as sub-s. 47(1) and s. 107VG to the Court in its appellate role pursuant to s. 107VZZH. The Court is a court of law and, although exercising its original jurisdiction, is hearing appeals on questions of law from decisions of the Tribunal. The Act contains an elaborate structure for considering and determining facts in applications and claims for pensions and other entitlements under the Act. To add to this structure the Court as yet another of the bodies charged with this factual assessment would be a work of supererogation.

7. Also, although the Court shall hear and determine the appeal and make such order as it thinks appropriate by reason of its decision (sub-s. 107VZZH(4)), sub-s. 107VZZH(5) provides:-
   
   

"(5) Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

The language of sub-s. (5) does not sit easily with the notion that the Court conducts a general review of the Tribunal's decision; but it is entirely consonant with the view that the subject matter and scope of the appeal is limited to a question of law and does not operate as a rehearing of the whole matter.

1. A more apt analogy to appeals pursuant to s. 107VZZH of the Act than appeals pursuant to s. 196 of the Assessment Act is to be found in appeals to this Court from decisions of the Administrative Appeals Tribunal pursuant to sub-s. 44(1) of the Administrative Appeals Tribunal Act 1975 which provides:
   
   

"A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding."

1. That sub-section is cast in substantially the same language as sub-s. 107VZZH(1) of the Act.

2. It has been held that appeals under sub-s. 44(1) of the Administrative Appeals Tribunal Act 1975 are more limited in scope than those under sub-s. 196(1) of the Assessment Act: Blackwood Hodge (Australia) Pty. Ltd. v. Collector of Customs (New South Wales) (1980) 47 FLR 131; Committee of Direction of Fruit Marketing v. Australian Postal Commission (1979) 25 ALR 221 per Northrop J. at pp 232 and 233.

3. Accordingly, in our opinion the appeal to this Court from the decision of the Tribunal which was heard by the primary Judge is limited to questions of law and did not extend to a general rehearing of the matter.

4. The second attack made by counsel for the appellant upon the reasons for judgment of the primary Judge was that, notwithstanding the concession of the appellant that the Tribunal posed the correct test (i.e. whether it was satisfied beyond reasonable doubt that the deceased's death did not arise out of or was not attributable to war service) it went astray on the material before it in reaching a conclusion adverse to the appellant and that Toohey J. erred in not so holding.

5. It is necessary to refer in some detail to the Tribunal's findings of fact and to Toohey J.'s assessment of those findings.

6. The Tribunal, in an extensive review of the facts, referred to the medical history of the deceased going back to his war service. The primary Judge noted that there is nothing in the medical records relating to the deceased's period of eligible service of any apparent relevance to the cancer from which he died except for a reference to malaria. The Tribunal said of this:
   
   

"After his discharge he had one bout of malaria in July 1945 and reported again with malaria in November 1945 but the diagnosis of malaria was not confirmed."

1. Further, the Tribunal noted that according to the deceased's "own statement at discharge he had not suffered malaria ... on service."

2. It was not until 1973 that carcinoma of the rectum was diagnosed. Dr. Waters, a physician, noted on 19 July 1973 that the deceased started to develop diarrhoea in January 1973 and he said:-
   
   

"Rectal examination reveals a mass in the anterior wall of the rectum which feels like a carcinoma. ...

Diagnosis: Probable Carcinoma of the Rectum."

1. The primary Judged noted that this diagnosis was confirmed and that the deceased died the following year.

2. The appellant's case before the Tribunal, before the primary Judge and before us placed heavy emphasis upon two reports furnished by Dr. Hainsworth of the State Health Laboratory Services. It is important to note that the medical opinions which were before the Tribunal were from doctors who had never examined the deceased but who had read the departmental file relating to him. These doctors were not called as witnesses before the Tribunal. The first report of Dr. Hainsworth of 11 June 1975 stated that he had read the file on the deceased and could find "no direct association between his terminal carcinoma and his death". This was obviously erroneous and was corrected by Dr. Hainsworth in his later report in which he stated that he meant that he could find no direct association between the deceased's terminal carcinoma and his war service. In his first report Dr. Hainsworth said:
   
   

"However the causes of carcinoma of the rectum are unknown and there could have been some aspect of his war service which predisposed him to subsequent development of carcinoma.

There is some evidence to show that the development of tumours may be related to alterations in a person's immune mechanisms as the result of chronic infection e.g. malaria. There is no way to prove that this man's death was not the result of his war service and this should introduce sufficient doubt for your appeal to succeed under Section 47 of the Repatriation Act."

1. Dr. Martin, a Senior Medical Officer (Appeals) made a report on 31 July 1975 in which he said:-
   
   

"I have read the veteran's file, including the Advocate's argument, dated 17.6.75, and opinion dated 11.6.75, by Dr. D. Hainsworth, in the summary. ... Dr. Hainsworth speculated that there may have been some aspect of war service which predisposed the deceased to subsequent development of carcinoma. The veteran had short service and was discharged fit. There was no abdominal and bowel complaint recorded in the service documents, nor in the early post-war years. There was some evidence that the veteran had malaria in 1945 on one occasion.

There is no evidence in the veteran's file that his immune mechanisms were interfered with. If war service had interfered with his immune mechanisms one would have expected him to have been incapacitated by infections at an early age, or for him to have succumbed to a fatal disease much earlier than his age of death, of 69 years. In fact, the D.M.O. attending him in his final illness commented on his apparent resistance - 26.4.74, page 182, 'He is definitely going down hill (Altho' I appear to have said this before), and this is a month later'.

There is no known medical connection between the disability of lumbar-sacral pain and sciatica dating back to 1944, and lumbar-sacral pain and sciatica arising from carcinoma of the rectum. The veteran had two types of pain, one associated with his A/D polyarthritis, and the other associated with the malignancy ... The illness occurred too long after war service to be related to war service. In my opinion the veteran's death was N.D.W.S."

1. This lastmentioned reference stands for "Not Due to War Service".

2. In his report of 8 March 1978 Dr. Hainsworth disagreed with the opinion given by Dr. Martin. Dr. Hainsworth said:-
   
   

"In those carcinomas where aetiological factors are known there is often a surprising length of time between exposure to the aetiological factor and the development of carcinoma. For example a particular tumour of the lung resulted from minor exposure to a certain type of asbestos, the tumours never develop in less than 20 years after exposure and sometimes the interval is as long as 40 years. It is also quite well known that malignant cells can lie dormant for many years and this feature can again spread the length of time between initiation of the tumour and clinical evidence of it.

...

In the face of the gradually increasing amount of information about the aetiology of malignant disease it is unwise to be dogmatic and say that a certain period of a patient's life had no significance. There is no way to prove that this man's death was not the result of his war service and I feel that the doubt thus introduced should be resolved in favour of the appellant."

1. In a later report of Dr. Martin dated 7 June 1976 he said:
   
   

"I have read the veteran's files again, including the Advocate's argument, dated 22.3.76 with enclosures - medical opinion dated 8.3.76 by Dr. D. Hainsworth ... There is no medical evidence to incriminate war service as an aetiological factor.

Dr. Hainsworth 8.3.76 disagrees with my statement 'that because the illness occurred so long after war service that it cannot be related to war service'. He supported his opinion by referring to two situations that are not related to the present argument ... The time relationship between the onset of the initiating carcinogenic stimulus and the appearance of clinical symptoms is unknown. There is no medical evidence to incriminate any factor of war service in the initiation of the veteran's cancer.

If the veteran had pain from cancer of the recto-sigmoid present for many years before diagnosed, I consider other symptoms would have made the diagnosis obvious, such as alteration of bowel habit and bleeding. ... In my opinion the veteran's death was not due to war service."

1. Dr. van den Brenk made a report dated 26 January 1982. He was also a Senior Medical Officer (Appeals). The Tribunal said that:-
   
   

"Dr. van den Brenk graduated M.B.B.S. (Melb.) D.T.R.E., F.R.C.S. (Eng.) F.R.A.C.R. He holds specialist degrees in surgery and radiation oncology. He was Professor of Cancer Research London University coupled with Director of the Richard Dimbleby Laboratory of Cancer Research, St. Thomas' Hospital, Medical School and Consultant Physician, St. Thomas' Hospital, London. He was employed for over 30 years since 1947 in the treatment and investigation of malignant diseases and been responsible for the initiation and direction of Cancer Research Laboratories and clinical Research units in Oncology in London and Melbourne as well as holding Consultant posts at a major London and Melbourne teaching hospitals. The Tribunal find that he is eminently qualified."

1. The primary Judge summarised Dr. van den Brenk's report in these terms:-
   
   

"There is no record of Mr. Brown having any disease of the alimentary tract during the period of eligible service. There are certain risk factors, believed to predispose to cancer of the rectum or colon, but the deceased did not develop these diseases. He had some infection illnesses on service but none caused immunosuppression. In any event there is no evidence that immunosuppression causes cancer. If a person became severely depressed through being unable to mount an effective immunological response to a new foreign antigen, such a person would have a gross haematological disease with panhaemocytopenia and be in a state of health comparable to an individual dying from lethal irradiation. He would certainly not survive for another 29 years. Dr. van den Brenk's conclusion was:

'In my opinion to submit that the member became immunodepressed on service (whether or not this has any bearing on the aetiology of cancer development) is patently false. Refer Dr. Martin's opinion (31.7.75) which I endorse'."

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

"... were not based on any recorded evidence on the member's file and thus could be considered as speculative as to a causal relationship to war service of the disease that led to the death of the member in this case. Furthermore the Act does not require proof absolute, rather it requires a proof beyond reasonable doubt."

1. The Tribunal attached considerable weight to the evidence of Dr. Martin and Dr. van den Brenk.

2. The Tribunal said of Dr. van den Brenk:
   
   

"The Tribunal find that he is eminently qualified and has given compelling reasons to rebut the opinion expressed by Dr. Hainsworth and on that basis the Tribunal find that the evidence of Dr. Hainsworth has been destroyed by Dr. Martin and Dr. van den Brenk in regard to this specific case."

1. The primary Judge said:
   
   

"While one might cavil at the use of the term "destroyed", there can be no doubt that the Tribunal accepted, as it was entitled to, the evidence of Dr. Martin and Dr. van den Brenk and not that of Dr. Hainsworth."

1. The Tribunal had before it a paper given by Sir Edward Dunlop entitled "The Acceptance of Cancer as War Caused". Speaking of Sir Edward Dunlop's paper dated 1970 the Tribunal said:
   
   

"... the Tribunal acknowledges the eminence of Sir Edward in Cancer Research but finds that this reference is a general paper on cancer and does not relate specifically to the case under review. Certain claims in the paper relate to the disease from which Mr. Brown, the member, died but Sir Edward relates colon and rectal tumours with a strong association to ulcerative colitis and to a lesser extent dysentery and irritable colon disorders. None of these diseases appear in the member's medical records."

1. The primary Judge found that the Tribunal's assessment of the relevance of Sir Edward Dunlop's paper to the claim before it was an assessment which was open for the Tribunal to make. The Tribunal said that it "must find for the applicant and set aside the Commission's decision unless it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim". The Tribunal said that it found as facts:
   
   

". the member did not suffer during war service from chronic infection of any kind which might have presumed to have altered his immune mechanisms.

. there is no evidence showing any immune deficiency or any relationship between immuno-deficiency and the member's carcinoma of the rectum from which he died.

'No evidence' of course is not the test to be applied. Rather the test is: ' Is there evidence of disproof?' and the fact that there is 'no evidence' is one of the factors that the Tribunal must take into account when deciding for itself whether the Commission's onus of disproof beyond reasonable doubt has been discharged."

1. The Tribunal concluded with reference to the reasons of the Commission for rejecting the claim:
   
   

"... those reasons and the medical opinions on which they were based establish beyond reasonable doubt that the illness that caused the member's death was unrelated to his war service in terms of Section 101 of the Act."

1. Counsel for the appellant submitted that the present case was one where it was not known one way or the other whether or not some incident in the deceased's war service was related to the ultimate development of his cancer and that in those circumstances the claim for pension must be granted because the possibility that war service had contributed to the cancer had not been negatived beyond reasonable doubt.

2. Counsel relied upon the joint judgment of Keely and Fitzgerald JJ. in O'Brien v. Repatriation Commission (1984) 53 ALR 477 where their Honours said at pages 504 and 505:-
   
   

"If there is no material in respect of a fact, or if the material is neutral in the sense that it leaves the existence of the fact unknown, there is no rational basis for a choice between the conclusion that the fact does exist and the conclusion that it does not. The non-existence of that fact is not the only rational conclusion. There is no need that there also be material which points to a 'real' possibility of the existence of that fact. That 'real' possibility is left open by the evidence.

Thus, it may not be established beyond reasonable doubt that incapacity or death is not 'connected with' war service either because there is material which points positively to a cause of the incapacity or death which is or might be so 'connected' (as, for example, in Law, Byrne and Morcombe), or because of some inadequacy in the material to show the absence of a connection."

1. O'Brien's Case went on appeal to the High Court (judgment 27 February 1985). Gibbs C.J., Wilson and Dawson JJ. approved this passage from the joint judgment of Keely and Fitzgerald JJ., but said:-
   
   

"Two matters should however be made clear. The first is that although their Honours spoke of the disproof of a fact, s. 47(2) does not require the Tribunal to grant a claim unless it is satisfied beyond reasonable doubt of the non-existence of every evidentiary fact. The question for the Tribunal is whether it is satisfied, beyond all reasonable doubt, that there are insufficient grounds for granting the claim; it will disallow a claim if it is satisfied beyond reasonable doubt that 'any fact necessary to establish entitlement' (Law, at p.652) does not exist."

1. The present case is not one of either neutral or conflicting medical evidence. Drs. Martin and van den Brenk addressed themselves specifically to the medical history of the deceased as revealed by the medical records. They did not simply conclude that the aetiology of the disease was unknown. Each of those medical practitioners concluded that, had the carcinoma been attributable to or arisen out of the deceased's war service, its symptoms would have been apparent much earlier than they were. Of Dr. Hainsworth's reports the primary Judge said:
   
   

"... Dr. Hainsworth's earlier report was less a medical opinion than a piece of syllogistic reasoning. That is not to criticise the report; it is simply to assess the weight to be attached to it in relation to the entirety of the material before the Tribunal. Likewise the concluding sentence of Dr. Hainsworth report of 8 March 1976 is by way of argument rather than medical opinion."

A little later in his reasons for judgment his Honour said:

"No criticism of Dr. Hainsworth is intended when I say that his reports were essentially argumentative, expressing a view of the operation of the Act."

1. We agree with His Honour's observations.

2. This is not therefore a case like Repatriation Commission v. Law (1980) 31 ALR 140 (Full Court of the Federal Court); (1981) 36 ALR 411 (High Court) where there was conflicting but unchallenged medical evidence so that the Tribunal could not properly have been satisfied beyond reasonable doubt that the medical evidence favourable to the applicant was wrong. Nor is it a case like O'Brien's Case.

3. See also Repatriation Commission v. Byrne (1981) 40 ALR 296 and Lennell v. Repatriation Commission (1982) 4 ALN N29.

4. In our opinion the primary Judge correctly held in the present case that it was open to the Tribunal to be satisfied beyond reasonable doubt that the deceased's death did not arise out of or was not attributable to war service.

5. The appeal should be dismissed with costs.