Davenport v Repatriation Commission

[1997] FCA 918

FEDERAL COURT OF AUSTRALIA

VETERANS AFFAIRS - appeal from determination of AAT that cerebrovascular accident not war-caused within meaning of s 120(1) of Veterans Entitlement Act 1986 (Cth) - connection between smoking and cerebrovascular accident accepted - question of fact whether smoking commenced during three week voyage to Vietnam - no other operational service - unreliability of applicant’s evidence considered by Tribunal - no legal error established - appeal dismissed

Veterans Entitlement Act (Cth) 1986, s 120(1), s 120(3), s 120(6)

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 85 CLR 259

Bushell v Repatriation Commission (1992) 175 CLR 408

Devries v Australian National Railways Commission (1993) 177 CLR 472

PETER JOHN DAVENPORT -v- REPATRIATION COMMISSION
TG 3 of 1997

HEEREY J
HOBART
5 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
TASMANIA DISTRICT REGISTRY	)  TG 3 of 1997
)
GENERAL DIVISION	)

BETWEEN:	PETER JOHN DAVENPORT Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	HEEREY J
PLACE:	HOBART
DATE:	5 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application is dismissed with costs including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
)
TASMANIA DISTRICT REGISTRY	)   TG 3 of 1997
)
GENERAL DIVISION	)

BETWEEN:	PETER JOHN DAVENPORT Applicant
AND:	REPATRIATION COMMISSION Respondent

JUDGE:	HEEREY J
PLACE:	HOBART
DATE:	5 AUGUST 1997

REASONS FOR JUDGMENT

The applicant Peter John Davenport appeals from a decision of the Administrative Appeals Tribunal which confirmed a decision of the Veterans Review Board to the effect that a cerebrovascular accident suffered by the applicant in November 1988 was not war-caused within the meaning of s 120(1) of the Veterans Entitlements Act 1986.  The applicant had served in the Royal Australian Navy from 29 September 1958 to 28 September 1967.  During that period he served on HMAS Parramatta and in particular on one voyage in which his ship acted as an escort for HMAS Sydney carrying troops to Vietnam.  That voyage took place between 25 May and 14 June 1965.

The applicant's case was that smoking caused his cerebrovascular accident.  As a matter of medical causation, it was not in dispute that such connection could have occurred.  The case before the Administrative Appeals Tribunal was put by the applicant's counsel in these terms:

The only issue before you today, sir, is whether or not the applicant's smoking habit was one that was commenced during his period of service whilst on HMAS Parramatta.

As much of the attack on the Tribunal's decision was based on what was said to be failures to deal adequately with the case in its reasons, it will be a convenient course if I quote at perhaps greater length than usual from the decision.  Under the heading “The Evidence,” after referring to the “T” documents being tendered and the fact that the applicant was the only witness who gave oral evidence, the Tribunal continued -

8.        The evidence in chief of the applicant, in so far as it related to the issues in dispute, were as follows:-

(a)      He left school at the age of 15 and joined the Navy when he was 18. 

(b        He served in the Navy for 9 years.

(c)       Prior to joining the Navy, he had not smoked a cigarette apart from an experimental sample.

(d)      During his service in the navy he served on HMAS Gascoyne; HMAS Anzac; and HMAS Parramatta for approximately two years of service upon each vessel.

(e)       Whilst on the HMAS Gascoyne and HMAS Anzac he did not smoke.

(f)       He served on the HMAS Parramatta for two years which included the period 25 May 1965 to 14 June 1965 when the HMAS Parramatta was in operational service in the waters of Vietnam.

(g)      He started smoking cigarettes whilst the HMAS Parramatta was in harbour in Vietnam for four days due to anxiety and stress that he suffered as a result of his fear that the vessel would come under attack.  He commenced smoking thirty cigarettes per day during this period.

(h)      Cigarettes were freely available on HMAS Parramatta and the smoking of cigarettes ease [sic] the tension suffered by the applicant.

(i)       He has continued smoking since June 1965 and is still a smoker.

Under cross-examination the applicant conceded that he had previously given evidence concerning the commencement of his smoking habit, which differed form his evidence at the hearing of the review.  Specifically the applicant agreed that in Federal Court proceedings he had sworn an affidavit on 11 May 1995 which stated (inter alia)  “... I first smoked cigarettes after I left school in 1955 but I smoked very little.  At most  I smoked about 2 cigarettes per day.”

The applicant gave evidence that he had a stroke which affected his memory and the given [sic] of his evidence before the Tribunal.

10.      Amongst the T documents tendered at the hearing were the affidavit sworn by the applicant on 11 May 1995, which was used in the Federal Court proceedings, and a copy of the decision of the Veterans’ Review Board on 20 November 1995. In that decision the Board refers to evidence given to the Board by Mr Davenport as follows:-

“Mr. Davenport told the Board he had commenced smoking at about age 15 in 1955 ... and said he was consuming approximately 2 cigarettes per week by the time he joined the Navy, three years later in 1958.  He said he remembered smoking very heavily in the Navy.  He explained that cigarettes were issued duty free whilst on sea-going service outside Australian territorial waters. 

11.      Apart from his operational service on HMAS Parramatta, Mr. Davenport also served during non-operational periods in the frigate, Gascoyne and the destroyer Anzac.  He had considerable sea-going service in both, including lengthy tours of the Pacific area.  He told the Board he estimated he was smoking approximately 20 cigarettes per day whilst serving on HMAS Gascoyne.  This was several years before his posting to HMAS Parramatta, in which he rendered his operational service.”

12.      In cross-examination at the hearing of the review, the applicant was unsure whether or not he had given that evidence to the Veterans’ Review Board.

The Tribunal then proceeded under the heading “Findings of Fact” as follows:

13.      The evidence of the applicant was unsatisfactory.  He had obviously suffered a stroke which appeared to affect his memory.  The applicant appeared to be unsure as to the circumstances and timing of the commencement of his smoking habit, and he was not able to confidently say whether or not his evidence before the Tribunal contradicted previous evidence he had given either before the Federal Court or the Veterans’ Review Board.

14.      The Tribunal is unable to accept the applicant’s evidence unless it is supported by corroborating evidence.

15.      The Tribunal makes the following findings of fact namely:-

(a)      The applicant left school at age 15, and served in the Navy from 29 September 1958 to 28 September 1967.

(b)      During the applicant’s period of service in the Navy he served upon HMAS Gascoyne; HMAS Anzac and HMAS Parramatta.

(c)       That during the period 25 May 1965 to 14 June 1965 the applicant served on operational service on HMAS Parramatta during the period 25 May 1965 to 14 June 1965. 

(d)      That between the time of leaving school at the age of 15, and his discharge from the Navy, the applicant developed a smoking habit.

(e)       That in November 1989 the applicant suffered a cerebrovascular accident which could have been caused by the applicant’s smoking habit.

16.      The Tribunal is unable to find as a fact the date upon which the applicant started his smoking habit; the circumstances in which the applicant commenced his smoking habit; nor the history of the applicant’s smoking habit prior to his cerebrovascular accident.  The Tribunal is unable to make findings in respect of these matters due to the general unreliability of the applicant’s evidence and the contradicting evidence tendered at the hearing.

The Tribunal then noted that the effect of s 120(1) and (3) required it to determine that the cerebrovascular accident was war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  The Tribunal noted that it was not disputed that the smoking habit, however arising, could have caused the cerebrovascular accident and that what was in dispute was whether the smoking habit is connected to the applicant's operational service between 25 May and 14 June 1965.

The Tribunal then said at par 21:

For this Tribunal to made [sic] a decision adverse to the applicant it must be satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis that the applicant commenced smoking cigarettes or substantially increased the smoking of cigarettes during the period of operational service on HMAS Parramatta between 25 May 1965 to 14 June 1965.

It may well be, as counsel for the applicant pointed out, that this particular paragraph somewhat blends together the distinct requirements of subs (1) and subs (3) of s 120, but applying the by now well-established principle that administrative decisions are not to be considered in any pedantic or fault-finding way with an eye finely tuned for error - see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272 and 291 - 292 I am not satisfied the error made is of any significance.

The Tribunal then referred to a passage in Bushell v Repatriation Commission (1192) 175 CLR 408 at 416:

The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making (the) determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis.  Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which it is claimed to support them or because of the superior element of reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making determination.

The Tribunal continued -

24.      In the present case the applicant in his oral evidence raises material which points to an hypothesis that he commenced smoking during operational service.  Not all of the material raised in evidence points to the hypothesis, indeed much material raised does not support that hypothesis.  It is sufficient that there is some evidence that raises the hypothesis.

25.      Having decided that an hypothesis has been raised, I am required to determine whether the hypothesis of connection between smoking and operational service is reasonable.  I am not required to choose between competing hypothesis.  I determine the hypothesis raised by the applicant is reasonable.

26.      That is not the end of the matter however.  Having decided that the hypothesis is reasonable, the Tribunal must allow the claim unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  In considering that question, the Tribunal is required to apply a test of proof beyond all reasonable doubt that the facts upon which the hypothesis was based are untrue.

27.      In applying this test, the Tribunal is satisfied beyond reasonable doubt that the applicant neither commenced or increased his smoking habit during the period of operational service on the HMAS Parramatta between 25 May 1965 to 14 June 1965.

28.      The Tribunal’s reasonable doubts are caused by:

(a)      The contradicting evidence as to the commencement and nature of the applicant’s smoking habit and in particular the different versions given to this Tribunal; the Federal Court, and to the Veteran’s Review Board.

(b)      The general unreliability of the applicant’s oral evidence due to his stroke and memory loss.

(c)       The extremely short period of operational service of the applicant compared to the total period of time from the date of the applicant leaving school to his discharge from the Navy.

(d)      The competing versions as to the commencement and history of the applicant’s smoking habit given by the applicant to the Veteran’s Review Board and the Federal Court which the Tribunal prefers to the version given in oral evidence by the applicant.

29.      The decision under review is affirmed.

Counsel for the applicant argued that the Tribunal did not identify what the reasonable hypothesis was and did not make any finding as to what the "raised facts" were.  It was said that the Tribunal should have identified and dealt with the raised facts which were part of the hypothesis and in particular the fact that the applicant had suffered stress while in harbour in Vietnam.  As part of this criticism it was said that it was not enough for the Tribunal to say that there was some "general unreliability" in the applicant's oral evidence.  It was said that there was a failure in the methodology adopted by the Tribunal and that even if the applicant's evidence was unreliable, the Tribunal should have looked at other evidence including the fact that there was no other war service prior to May/June 1965 in the applicant's naval service that was stressful and that stress in the relevant period might have led to his commencing smoking.

In my opinion, particularly having regard to the way the case was conducted before the Tribunal, I am satisfied that the single, simple and determinative issue in this case was adequately considered and dealt with by the Tribunal.  The case was perhaps somewhat unusual in that it was accepted that for the purposes of s 120(3) a reasonable hypothesis had been raised.  The only question was whether, in terms of s 120(1), the Tribunal was satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the applicant’s cerebrovascular accident was war-caused.

As part of the fact-finding exercise on which the Tribunal was engaged, it was entirely within its function and prerogative to consider whether or not the applicant's evidence was reliable.  Even in an appeal in the ordinary way from a court the limitations on an appellate court in dealing with findings of credibility at trial are well known.  In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, Brennan J said:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact.  If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

The Tribunal was quite entitled to consider as part of its assessment of the reliability or otherwise of the applicant's oral evidence the fact that he had suffered a stroke and memory loss.  I need hardly add that this is in no way any moral criticism of the applicant but it was a fact which the Tribunal could not ignore.  Moreover, the Tribunal referred to the contradictions in the evidence that he had given at different stages.  This was plainly a matter going to the credibility or otherwise of his evidence.  Also, the Tribunal was entitled to look at the inherent probability or otherwise of the applicant's case and take into account the fact that his case involved isolating a very short period of his naval service as the period at which the temporal connection between his smoking and war service was established.

Strictly speaking, questions of onus of proof do not arise under s 120(1); see subs (6).  This is perhaps not so easy to apply as a matter of practicality.  However, I do think it proper to say that the fact that the Tribunal found the applicant's oral evidence generally unreliable and not to be relied upon does not mean that the Tribunal was ignoring the mandate of s 120(1) and in some indirect way requiring the applicant to prove his case.  Rather, once the Tribunal was satisfied beyond reasonable doubt that the temporal connection between the commencement of smoking and the operational service in 1965 was not established, that was the end of the matter.  It was no part of the Tribunal's function to go on and make some finding as to whether the applicant's smoking commenced at some other particular date.

People of course can commence smoking for all sorts of reasons, stress included, but not only stress. The fact that if, it be the fact, that there was no part of the applicant's naval service that was stressful other than the voyage in question would not compel the Tribunal as a matter of common sense to conclude that he started smoking on that voyage. In my view, the Tribunal's reasoning process was adequately disclosed as is required by s 43 of the AdministrativeAppeals Tribunal Act 1975 (Cth). Its decision was essentially one of fact. No legal error has been established. The application will be dismissed with costs, including reserved costs.

I certify that this and the preceding  six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Assocociate:

Dated:             5 August 1997

Counsel for the Applicant:	Mr R M Webster
Solicitor for the Applicant:	Mr R M Webster
Counsel for the Respondent:	Mr P J Hanks
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 June 1997
Date of Judgment:	5 August 1997