Evans, Laurence Trevor v Repatriation Commission

[1984] FCA 272

Re: LAURENCE TREVOR EVANS
And: REPATRIATION COMMISSION
VG No. 31 of 1984
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers A.C.J.
Sweeney J.
Keely J.

CATCHWORDS

Repatriation - former member of armed services suffered teratoma of the testis - question whether that incapacity resulted from an occurrence that happened during a period of special service, or arose out of or was attributable to special service, or was aggravated by the conditions of special service - cause of teratoma obscure - effect of obscurity of cause in proof beyond reasonable doubt that incapacity not caused by the special service - statutory standard of proof - the intention of Parliament in enacting that standard of proof - the factors the Tribunal should ideally seek to identify and consider or have brought to its attention in considering whether the evidence showed beyond reasonable doubt that the incapacity was not related to special service - the interpretation given to the medical evidence by the Tribunal.

Repatriation Act 1920: ss.47(2) 107 VH(2)(a)

Repatriation (Special Overseas Service) Act 1962: s.6.

HEARING

MELBOURNE

#DATE 5:9:1984

ORDER

1. The appeal be allowed.

2. The respondent pay the appellant's taxed costs of and incidental to the appeal.

JUDGE1

I have had the advantage of reading the Reasons for Judgment of my brother Sweeney. I agree that the decision of the Repatriation Tribunal was open to it. I agree with the order proposed. However, I do desire to add further observations.

The submission of the respondent is that on the evidence the Repatriation Review Tribunal (the Tribunal) could not fail to be satisfied beyond reasonable doubt that the appellant's incapacity did not result from an occurrence that happened during his special service in Vietnam and did not arise out of and was not attributable to that special service. The Tribunal stated that it was not so satisfied.

It has been said that where all that appears are circumstances, and a connection between those circumstances and the incapacity cannot be seen as a real possibility, then, if the actual cause is unknown, it is impossible not to be satisfied beyond reasonable doubt that the circumstances stated were not causally related to the incapacity. To my mind this does not accord with the provisions of s.107 VH(2)(a) of the Repatriation Act 1920 (the Act) which, with respect to the function of the Tribunal on a review of the decision of the Repatriation Commission (the Commission) refusing a claim for a pension, enacts that that decision shall be set aside unless the Tribunal is satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. That provision is similar to that contained in s.47(2) of the Act which requires the Commission to grant a claim for a pension unless it is satisfied beyond reasonable doubt that there are insufficient grounds for granting it. It is to be noted that until 1979 the provision in s.47(2) of the Repatriation Act 1920 was that "the onus of proof shall lie on the person or authority who contends that the claim ... should not be granted." This provision was amended by s.11 of the Act No. 18 of 1979 to enact what is now s.47(2). It was by s.26 of that same Act that the provision now in s.107(2)(a) was enacted.

It is not to be doubted that the legislature intended that the standard of satisfaction specified in s.107 VH(2)(a) is to be unequivocally understood according to its terms. The determination of Parliament that a veteran with an incapacity possibly due to war service should be awarded a pension although the casual relationship between the service and the incapacity may remain unclear is clearly manifested. Not satisfied that a claim might fail only where a Tribunal was satisfied on the balance of probabilities that there was no such relationship, Parliament went to the length of providing, in effect, that before a claim should fail the Tribunal must be satisfied beyond reasonable doubt that there was no such casual relationship.

It was said by Toohey J. in Repatriation Commission v. Compton No. WAG 49 of 1983 (unreported):-

"What I sought to do in Bishop's case was to examine certain decisions of this Court and of the High Court with a view to explaining that in the material before the particular tribunal there must be something pointing to a possibility, real as opposed to fanciful, of a connection between death and war service. If there is not, the tribunal is likely to conclude that it is satisfied beyond reasonable doubt that there was no relationship between the war service and the death. Where there is evidence to support a connection between death and war service, the onus cast by the Act upon the Commission would ordinarily lead to a conclusion that the onus had not been satisfied "unless the evidence pointing to a connection between death and war service should be dismissed as merely fanciful".

Where the aetiology of a disease is unknown the same principle is in operation but its application may be somewhat different. Where the cause of the disease from which an ex-serviceman died is unknown, it does not follow as a matter of law that the tribunal cannot be satisfied beyond reasonable doubt that the disease was not attributable to war service. In many cases that, no doubt, will be the conclusion reached. But in a particular case the tribunal may decide that the evidence is against the disease having its origin as early as the war years or against it having an origin having anything to do with war service or any circumstances connected therewith. A conclusion by a tribunal that it is satisfied beyond reasonable doubt that the disease was not attributable to war service may, in the particular circumstances, be a proper conclusion. See Lennell v. Repatriation Commission (1982) 4 ALN No. 29."

To these observations may be added those of the Full Court in Lennell v. Repatriation Commission (1982) 4 ALN No. 29, N54 at N55 in the joint judgment of Northrop and Sheppard JJ:-

"... we should say something of the applicant's submission that in every case where a serviceman died of a disease, the cause of which was unknown, his dependants were entitled to a pension because it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. We would reject this submission because, notwithstanding that the cause may not be known, it may be possible to demonstrate beyond reasonable doubt that the case could not have been related to war service."

But as pointed out in the joint judgment of Keely and Fitzgerald JJ. in O'Brien's Case, 11 April 1984 No. G64 of 1983 (unreported)

". . . 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."

In any case where the cause of an incapacity is unknown and the evidence submitted by an applicant in support of a claim disclose circumstances by reference to which the Tribunal is satisfied beyond reasonable doubt that whatever the cause might have been there was no connection between the war service and the incapacity or where by reference to those circumstances and evidence called specifically to rebut such a connection the Tribunal on all the evidence is satisfied beyond reasonable doubt that whatever the cause might have been there was no connection between the service and the incapacity the claim may be dismissed.

In any case in which the cause of the incapacity is unknown the problem is to determine whether any aspect of the war service was possibly involved. The Tribunal is faced with the problem of identifying possible causes of the incapacity and determining whether there might possibly be a connection between some aspect of the war service and the initiation or development of the relevant disease. Until the range of possible causes is identified and the aspects of war service which might possibly operate relevantly to any such cause are identified a Tribunal is in difficulty in coping with the questions as to whether it can achieve satisfaction beyond reasonable doubt that no such aspects were operative in relation to the incapacity.

The question before the Tribunal was one of fact. Was it satisfied beyond reasonable doubt that the incapacity to the appellant did not result from an occurrence that happened during his period of special service including the contracting of a disease during such a period and did not arise out of and was not attributable to and was not aggravated by the conditions of his special service. Like any other Tribunal of fact it was entitled to have regard to the common experience of mankind. It was also entitled to act on such knowledge of medical matters as it had.

If one wished to satisfy a Tribunal that it should be satisfied that an event in the special service was not the cause of an incapacity one would attempt to identify the morbid bodily condition which constituted the incapacity, describe its development from its beginnings to its ultimate condition constituting the incapacity. Having done that one would look at the conditions experienced in service, identify them all, and endeavour to show beyond reasonable doubt that none of them could have been an operative and substantial factor in the onset or development of the relevant bodily condition to its ultimate stage constituting the relevant incapacity. Unless a process of this nature is undertaken the Tribunal will inevitably be left in doubt as to whether the ultimate condition might not have resulted from some aspect of the war service.

Where the medical evidence is that the cause is unknown in the sense that it is conceded that any event of any description might have caused the onset or relevant development of the condition, or that the onset or development might have been spontaneous bodily action, it would be impossible for a tribunal to be satisfied beyond reasonable doubt that any one of the events that might have occurred during a given period of service or at a particular place of service was not a cause.

But one would think that it would be seldom that a tribunal would have to be left to operate in such a void. Although, as in this case, the cause of the onset and relevant development of the condition was unknown, one would think that at least the range of possible causes could be identified. It might have been difficult to identify the range of possible relevant events to which the victim might have been exposed at the relevant time and place. If each or perhaps either of these objectives are achieved it possible for a tribunal with the assistance of evidence to say that there could be no connection between any of the possible events and any of the possible causes.

In this case the Tribunal was told by Dr. Dunn that it was his opinion that the cause of the condition was hormonal imbalance, that that was the only cause, and that nothing in the special service contributed to cause or aggravate the hormonal imbalance. But Dr. Dunn also told the Tribunal that the cause of teratoma of the testis was obscure, which necessarily means that it was unknown, and he did not state all those events internal or external to the body which were within the range of possible causes. Thus the Tribunal was left in ignorance as to the nature of the range of those events which might possibly cause a condition such as that suffered by the appellant. Dr. Dunn gave no reason for his opinion that the hormonal imbalance was not aggravated by any event involved in the special service.

In informing the Tribunal as to the cause of teratoma of the testis Dr. Dunn told the Tribunal that the cause was obscure. He told the Tribunal that some authorities believed that hormonal imbalance or trauma was the cause. It was to be inferred from the evidence of Dr. Dunn that he was of the opinion that trauma could be disregarded because there was no evidence of any relevant trauma, that the effect of insecticides could be disregarded for reasons that he gave, and as mentioned above, that the cause of the appellant's condition was hormonal imbalance not aggravated by the conditions of special service. It was to be inferred also that in forming this third item of his opinion he relied on the belief of "some authorities" and the undoubted fact that before and during his service the appellant suffered from hormonal imbalance. It appeared from Dr. Dunn's evidence that he claimed no special expertise as to the cause of teratoma of the testis. The third item of his opinion was expressed in response to provisions in the official form which required him to state an opinion as to the cause of the incapacity in the case of the appellant. It was not surprising that knowing the belief of "some authorities" that hormonal imbalance was the cause and that the appellant was a sufferer of that condition, he should express the opinion that he did. But the question is whether the Tribunal was bound to give such weight to that opinion as to be persuaded beyond reasonable doubt that in the case of the appellant the special service was not a cause of the incapacity. Dr. Dunn's evidence indicated that not all authorities held the same belief as that of those whom he had in mind. It remained, from his evidence, that authorities other than those holding the stated belief, had the belief that teratoma of the testis was caused by conditions or events other than the existence of hormonal imbalance. These other conditions or events were not stated specifically nor was the range thereof.

Accordingly, taking Dr. Dunn's evidence as far as it went, the Tribunal was in the position of knowing that although some unnamed authorities believed that hormonal imbalance was the cause of teratoma of the testis, there were other authorities, presumably just as knowledgeable, who had a different belief as to the cause. No doubt the fact that the appellant did suffer from hormonal imbalance added a degree of probability to the notion that in his case the cause was hormonal imbalance, but, in the knowledge that there were authorities who did not believe that hormonal imbalance was the cause of teratoma and that there were other events or conditions which might cause it, it would be difficult for the Tribunal to be satisfied beyond reasonable doubt that hormonal imbalance was the only cause of the appellant's teratoma. An event or factor constituting an operative and substantial casual element although perhaps in conjunction with other events or factors is in contemplation. Compare Law v. Repatriation Commission (1980) 31 ALR 140 where the expression "attributable to" is discussed, and The Commonwealth of Australia v. Keogh 24 November 1983, SA No. 23 of 1983 (unreported) where the expression "resulting from" is discussed.

While it remained open that a cause or causes other than hormonal imbalance were responsible for teratoma of the testis the onus of proving to the satisfaction of a Tribunal beyond reasonable doubt that the appellant's incapacity was due to hormonal imbalance and no other cause could not on the evidence, be carried. Similarly, if causes other than hormonal imbalance were a cause, and not identified, there was difficulty in proving that some event or condition, in the multifarious experiences of the appellant in his service, did not operate to activate that cause. It is therefore, not surprising that the Tribunal was not satisfied beyond reasonable doubt that the appellant's condition was, putting it shortly, not due to his special service.

There was, of course, the question whether, if the incapacity of the appellant were due to hormonal imbalance and that alone, that condition had not been aggravated by some aspect of the special service so that it was activated in a way that promoted the teratoma of the testis.

The learned Judge expressed the opinion that the Tribunal misinterpreted the evidence of Dr. Dunn in relation to the opinion he had expressed. In the critical passage in its decision the Tribunal referred to the medical evidence before it as follows:-

"The medical evidence that was before the Commission has been fully referred to and adequately summarised in the reasons for decision given by a Repatriation Board on 17 August 1981 and a copy of those reasons has been made available to all parties to this proceeding and they need not be repeated here.

In brief, that evidence is to the effect that the precise cause of teratoma of right testis is obscure but believed to be due to hormonal imbalance and in some cases, related to trauma. In the applicant's (appellant's) case it is considered that hormonal imbalance is a factor, the Applicant having undergone breast surgery in May 1970, after a 12 month history of tender slightly swollen right breast."

Dr. Dunn's evidence was that hormonal imbalance was the cause, not a cause or a factor causing the appellant's incapacity. Nevertheless I do not read the statement of the Tribunal set out above as indicating that there was a misrepresentation of Dr. Dunn's evidence or opinion. To my mind the Tribunal, in this passage, is not purporting to state Dr. Dunn's opinion as given by him in evidence as to the cause of the appellant's condition in full or in part. The critical passage appears to be a recapitulation of the finding of the Repatriation Board. It repeats almost word for word the opinion of the Board given in relation to the medical evidence in the appellant's claim. The passage refers to what is said to be the effect of the medical evidence given before the Board. The last sentence in the passage is directed rather to emphasise the strength of the evidence that hormonal imbalance really was a factor in causing the appellant's condition, not as indicating that the Tribunal understood that the medical belief referred to was that the hormonal imbalance was not the one and only cause. It performs that function well. The critical words in the passage follow the Tribunal's reference in its decision to the decision of the Board, a copy of which the Tribunal states it had given to all parties to the appeal before it. In the context, and the reference by the Tribunal to the statement of the reasons and decision of the Board and its accessibility to all parties, I would believe the relevant passage in the Tribunal's decision to be a statement of the view taken by the Board as to the effect of the medical evidence. The expression "it is considered" is not to be interpreted as stating what Dr. Dunn or any other medical person considered, but as a statement of what the Board considered. The important point is that it does not purport to recapitulate what Dr. Dunn said, but to be a statement of what the Board and perhaps the Tribunal considered the effect of the evidence to be. If it is to be taken as a decision of what the Tribunal considered, it would constitute a reasonable conclusion from the evidence and would represent the extent to which Dr. Dunn's evidence was accepted. Also it would accord with the statement in the Tribunal's decision that "the medical evidence is strong that hormonal imbalance was involved but that is only one factor in an obscure cause.". And of course the Tribunal's reasons continue:-

"The evidence clearly is that there is insufficient known of the condition to form a firm conclusion of what factors are involved. Certainly the medical evidence on hormonal involvement is strong but that is only one factor in an obscure cause. The evidence does not exclude to the degree of proof required under the Repatriation Act, other factors that as a real possibility, may be involved in the onset of the condition from which the member suffers."

And the other factors were some unknown cause relating to some aspect of the appellant's experience in Vietnam, including possible aggravation of the hormonal imbalance by some such experience.

If hormonal imbalance were the cause, the question arose as to whether that condition itself might not have been aggravated by the events experienced by the appellant in Vietnam. In that connection it is to be noted that the appellant performed combat duties in Vietnam. Such duties would involve experiences of all sorts, most difficult to be identified by those without combat experience. But it would require little imagination to contemplate that emotional pressures in combat were likely to be intense, to envisage the possibility that hormonal secretions might be affected in some way, especially where there was already an imbalance, and that there might be symptoms from such effects. That such symptoms might occur in the putative target area of hormonal imbalance, would not surprise.

In this connection, it is to be noted that in April 1970, during the special service, there were symptoms of hormonal imbalance in the form of mastitis of the right breast and a small tender lump apparently inducing frequent palpatation by the appellant. In May 1970 a surgical biopsy was performed for a condition of gynaecomastia of the right breast. The Tribunal referred to this surgery as material to its decision. The connection of these symptoms with some aspect of the special service would remain a real possibility in the mind of a reasonable tribunal of fact. Dr. Dunn said that the hormonal imbalance was not aggravated by the war service. No reasons for this were advanced. The hormonal condition, although evident before the period of the appellant's service, became active after a few months of the special service. Evidence might have been adduced on behalf of the respondent as to what conditions might aggravate the imbalance and why it was that there were new symptoms from it some five months after service commenced.

Having regard to the foregoing it appears that this case is not one in which there was evidence of such strength that the Tribunal was required to find beyond reasonable doubt that the relevant cause, whatever it was, was not a factor involved in the special service. The learned Judge remitted the matter to the Tribunal for reconsideration on the ground that the Tribunal may have misdirected itself as to the relevant law. I have discussed the issue of possible misinterpretation above.

As to the possibility of misdirection, I do not see any ground for concluding that it occurred unless the view be taken that there must be something in the material which points to the possibility real, as opposed to fanciful, of a connection between the incapacity and the war service if a pension is to be granted. As indicated above I consider that this view cannot be supported.

The Tribunal had before it the opinion of Dr. Murphy that he felt bound to support the appellant in his claim that something casually material to his condition of teratoma of the testis had occurred in his time in Vietnam. This statement of Dr. Murphy's opinion contains words not found in the document containing that opinion, but it is clear that words have been omitted. To make sense of what Dr. Murphy said words such as those I have used must be supplied. The Tribunal was entitled to understand Dr. Murphy's opinion as stated above, and, there is no reason to doubt that it did so. Dr. Murphy's opinion appears to have been based on the possible exposure of the appellant to Agent Orange. And he regarded the fact that the appellant's child, born after the service in Vietnam, died seven days after birth, as significant. The Tribunal noted that the appellant's representative before it did not pursue the suggestion that insecticide exposure could have been involved. And it is not clear that the Tribunal did not exclude the effect of exposure to insecticide as a possible cause of the incapacity because the representative of the appellant did not pursue it. It would seem that the term insecticide in the context is to be regarded as including Agent Orange. It is difficult to understand why a representative should "not pursue" the possibility that Agent Orange was a possible cause. But Dr. Murphy's evidence was before the Commission, and whatever the Commission's view of it may have been, the Tribunal's was required to have had regard to it: see s.107VH(1). The observations of the Full Court in Law's Case (1980) 31 ALR 140 at p.152 are in point, namely:

"The scheme of the Act is not to establish an adversary method of determining claims and applications but to have the department make the relevant investigations and then to require that, if there is some evidence that the claimant is eligible to receive a pension, a pension shall be paid, unless the investigations or the course of the proceedings throw up information which establishes beyond reasonable doubt that a pension is not payable."

Although the Tribunal found, as a material fact, that the appellant was exposed to some extent to insecticides during his special service, it would seem that it did not, in coming to its decision that it was not satisfied that some factor appertaining to the special service was not a cause of the incapacity, have regard to that exposure as one of the possible factors. Had it considered Agent Orange as a possible cause it might, having regard to the evidence given by Dr. Dunn, have properly excluded it as a possible cause.

In the light of the foregoing observations, the appeal should be allowed.

JUDGE2

On 17 August 1981 a Repatriation Board determined that the incapacity of Laurence Trevor Evans ("the appellant") resulting from teratoma of the right testis was not related to his service. On 19 March 1982 the Repatriation Commission ("the Commission") dismissed the appellant's appeal against this determination. On 31 May 1983 the Repatriation Review Tribunal ("the Tribunal") allowed the appellant's appeal against the decision of the Commission, from which the Commission appealed on a question of law to a single Judge of this Court.

The learned trial judge upheld the Commission's appeal, set aside the decision of the Tribunal and remitted the matter to it "to be heard and determined according to law after the hearing of any further evidence the Tribunal in its discretion sees fit to receive".

The appellant's claim for a pension arose under the Repatriation (Special Overseas Service) Act 1962, s.6 which provides:

"(1) Upon the incapacity . . .

(a) of a member of the Forces whose incapacity . . . has resulted from an occurrence that happened during a period of special service of the member . . . ; or

(b) of a member of the Forces whose incapacity . . . has arisen out of or is attributable to special service of the member,

the Commonwealth is . . . liable to pay to the member . . . pensions . . .

. . . . . . . . . . . . . .

(5) Where the origin of the cause of an incapacity or of the death of a member of the Forces existed before the commencement of a period of special service of the member and, in the opinion of the Commission or a Board -

(a) the incapacity from which the member is suffering was contributed to in any material degree, or has been aggravated, by the conditions of that special service or the member's death has been contributed to in any material degree by those conditions; and

(b) neither the incapacity or death, nor the origin of the cause of the incapacity or death, was due to the member's serious default or wilful act,

the incapacity or death shall be deemed to have resulted from an occurrence that happened during that period of special service."

It was not disputed that the respondent's service as a combat infantryman in South Vietnam between 3 December 1969 and 18 June 1970 constituted "a period of special service" nor that teratoma of the testis diagnosed in 1981 constituted an "incapacity". It was disputed that the teratoma "resulted from an occurrence" during that service, or "has arisen out of or is attributable to" that service.

The Tribunal was required to set aside the decision of the Commission unless it was satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim; see paragraph 107 VH(2)(a) Repatriation Act 1920, "the Act".

His Honour set out the appellant's history, which showed that when he enlisted in 1967, he had declared that he had not previously suffered and was not then suffering from any significant illness, or injury and his medical classification was Class A. The medical officer had recorded external genitalia as normal. After that date service records disclose, inter alia:

"4.6.1968 ... This patient was admitted with sudden onset of headache and vomiting. On admission he had a temperature of 102.5 with a few small axillary and groin glands but no other specific abnormality ...

Has generalised lymphadenopathy . . .

13.6.68 . . . To go home on 2 weeks sick leave and to complete 2 weeks treatment . . .

20.10.69 . . . Sebaseous cyst lobe of R.ear for removal. Hormonal mastopathy R.breast - present 12/12 - exploration only needed.

3.4.70 . . . Diagnosis: Mastitis Male Breast (R) . . .

10.4.70 . . . Small breast lump on (R) tender to palpation which he is doing often. He is fixed on the idea of mastectomy."

The appellant was admitted to hospital on 11 May 1970 and was discharged 8 days later. Gynaecomastia of the right breast was diagnosed and a surgical excision biopsy performed.

It was not disputed that the appellant had had a vasectomy in 1973 and the Tribunal made that finding.

In May 1981, after the period of service, embryonal carcinoma and teratoma (mature) of the testis was diagnosed and a radical orchidectomy performed. This was later followed by a bilateral radical lymphadenectomy. The medical history of the appellant at this juncture was summarized in a letter from Mr. Murphy, a specialist surgeon, to Dr. Stirling dated 9 June 1981:

"This fellow was admitted to hospital with a six month history of testicular swelling on the right hand side. He had had a previous vasectomy in 1973. His health has otherwise been normal.

He has a past history of being in Vietnam and being exposed to Agent Orange. Subsequent to this Army service a child was born and died at the age of seven days, looked after by the Geelong Hospital paediatricians. His general examination findings were normal. He had a 1.5 cm mass involving the lower pole of the right testis and on 15.5.81 I performed a radical right orchidectomy with preoperative Beta HCG and Alpha-theta protein levels. The diagnosis was confirmed as teratoma with embryonal elements. Subsequent to this a chest x-ray and I.V.P. were normal. A C.A.T. scan revealed multiple lymph nodes in the para-aortic region.

On 1.6.81 a bi-lateral radical lymphadenectomy was performed including the external iliac chains because of his previous vasectomy. His supra-hilar lymph node area on each side was clear. There was macroscopic and microscopic deposits in the para-inferior ven cava and aortic regions. The lymph node in the right iliac fossa region was also positive. Post operative Beta HCG and alpha-theta protein levels have been requested. He has had a stormy post operative course but is now on the road to recovery and due to be discharged in the next three days."

Mr. Murphy later forwarded the following letter, dated 9 March 1983, to the Commission:

"I refer to my previous letters as regards this man 9.6.81 who was shown to have a germ cell tumour of the right testicle. This man is progressing satisfactorily after the combination treatment of surgery, cytotoxics and a subsequent laparotomy.

I can only support him in his claim that his time in Vietnam, exposure to Agent Orange and a subsequent child born which died at the age of seven days.

Clinically he is remaining well and all tests remain normal."

Having so summarised the appellant's medical history, his Honour said:-

"In its reasons, the Tribunal, somewhat charitably, stated that Mr. Murphy's letter of 9 March 'supports the applicant's claim for a pension without giving reasons for doing so'. Specific mention was made of 'Agent Orange'. In this context it is to be noted that the respondent had stated, inter alia, in his 'Statement in support of a claim for medical treatment and pension' in response to the question why he considered the conditions of his service caused, contributed to or aggravated the teratoma;

'On investigation from my Platoon Commander he informed me that we served in areas that had been sprayed with herbicides.'"

Section 107 VH 2 (a) of the Act which is made applicable in the present case by s.7(3A) of the Repatriation (Special Overseas Service) Act 1962, provides as follows:-

"where the decision the subject of the review was a decision refusing a claim or application for pension-the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application."

The Tribunal was referred to an extract from the transcript of proceedings before the Administrative Appeals Tribunal in the case of Lennell v Repatriation Commission, in which Professor Tattersall gave expert evidence that:

"it is believed that cancer does not occur in a single step, but that rather, there is an insult to a cell, and that, following this, the cell is damaged but not in fact, a cancer cell until some further process takes place which is called promotion, and a totally different sort of agent may cause promotion compared with the agent which may cause the original insult. Therefore, cancer is seen to occur in at least two steps. The first being damage to the cell and the second, if you like the promotion of that damage to give rise to a cancer which may become clinically evident many years later."

He went on to say that the experience of Hiroshima victims supported "a lead time" extending up to 35 years. His opinion was that the development of a cancer cell required the sequence of insulted cell, damaged cell, followed by the promoting agent.

The material before that Tribunal included the following passage:-

"These views are confirmed by evidence given by Dr. D. Metcalf before the Administrative Appeals Tribunal in the cases of Byrne, Coyle, Wickenden and Wright vs. the Repatriation Commission and quoted by Tribunal in its judgement (page 2):

'There is a period during which a series of abnormal changes take place which leads eventually to the consequence of the first truly cancerous cell. This is referred to as the pre-cancerous or pre-neoplastic period and then there is a second period during which that first cell proliferates and eventually forms that large mass of cells that is then detected clinically. The exact length of the two periods is not known for most human cancers but it is known in special circumstances where some initiating cause was known. A generalisation, therefore, which is true for many cancers is that the total length of the development period before the disease becomes apparent clinically is surprisingly long, commonly in the range of twenty to forty years and almost invariably symptomless in that it is not aware to the patient-to-be that they are, in fact, developing a disease.'

Dr. Donald Metcalf is Head of Cancer Research at the Walter and Eliza Hall Institute of Medical Research, Melbourne, and is a world recognised authority."

As his Honour pointed out, the evidence led in Lennell's case was familiar to the members of the Tribunal and had been applied in a number of cases.

The Tribunal also had before it a detailed medical report submitted by a departmental medical officer, Dr. Dunn, which his Honour summarised. The report, on a standard form, was headed "Report by a medical practitioner on the incapacity of a member of the Forces" and extracted sub-sections 48(1) and (2) of the Act. Thus the form explicitly stated that the medical practitioner was to set out his opinion as to the nature, cause and extent of the incapacity and as to whether that incapacity:

" . . .

(i) resulted from an occurrence that happened during his war service; . . .

(iv) arose out of or is attributable to his war service; or

(v) has been contributed to in any material degree, or has been aggravated, by the conditions of his war service."

The practitioner is also required, if he entertains any doubt concerning any of those matters, to state that he entertains that doubt and to indicate, as far as practicable, the nature and extent of that doubt.

Dr. Dunn stated that he had studied the records relating to the appellant and had examined him in relation to the claim. Under the heading "Cause", Dr. Dunn had written:

"(b) The cause is obscure but is believed by some authorities to be due to hormonal imbalance, and in some cases to be related to trauma.

(c) In this case the cause is hormonal imbalance. There is no evidence of trauma. There is some evidence of hormonal imbalance. Veteran developed gynaecomastia, (that is enlargement of the breast) on the (R) side. Some degree of gynaecomastia is physiological at puberty in all males, it usually subsides in early adolescence but occasionally persists in one or both sides. In this case it was on only one side, the lump was removed and consisted only of breast tissue. This gynaecomastia had been present for 12 months before surgery on 11.5.70 Ref. F. Med 14."

Dr. Dunn said there was no occurrence that caused the teratoma testis. In considering whether the incapacity arose out of or was attributable to the service he concluded:

"No. There was nothing in the service of the member to which 'teratoma testis' may be related. It is not related to any of the illnesses or injuries suffered during service. The episode of a 'gynaecomastia' whilst being evidence of a hormonal imbalance was not causal in the development of the teratoma and had been manifest for 12 months that is since about May 1969 which is before the eligibility period. The hormonal imbalance was present before the period."

He then proceeded to consider the possible effect of exposure to chemicals. Under the heading "aggravation" he concluded:

"No. Not present prior to 3.12.69. Hormonal imbalance was present but was not aggravated by service."

At the conclusion of final addresses before the tribunal, the presiding member expressed his personal opinion that the statement by Dr. Dunn that the hormonal imbalance present during the period of special service, when the breast operation was performed, was not aggravated by that service as not supported by any evidence. After a short retirement, the Tribunal announced its decision:

"that the decision made by the Repatriation Commission on 19 March 1982, be set aside and for it is substituted the decision that the incapacity of the Applicant from Teratoma of Right Testis is accepted as being related to his eligible period of service pursuant to Section 6 of the Repatriation (Special Overseas Service) Act 1962 and the Commonwealth of Australia is liable to pay the pensions payable in accordance with that Act. This decision is to operate on and from 21 February 1981."

In its written statement of reasons for the decision, said in the appeal papers to have been issued on 6 July 1983, the Tribunal said:

"The Tribunal has reviewed the evidence before it, including the letter from Dr. Donald Murphy and the Applicant's own oral evidence, which included his statement that he was not and never had been a smoker and to his recollection, had never been involved in an injury which caused trauma to the testis, and finds as material questions of fact that -

" the Applicant's eligibility to make his claim was established;

" the Applicant has incapacity arising from teratoma of right testis;

" (per Dr. Dunn) the cause of that incapacity is obscure;

" symptoms of that incapacity became manifest in or about 1981;

" the Applicant underwent surgery in 1970 in respect of unilateral gynaecomostasia (per form MED14 11.5.70) and vascectomy in 1973;

" the Applicant was exposed to some extent to insecticides during his special service.

The evidence does not lead the Tribunal to the firm conclusion that the Applicant's special service was the or a causal factor in the onset of his incapacity from teratoma of right testis, either because of the nature of that service or its condition, including the effect of exposure to insecticides. However, the Applicant's representative (Mr McCallum) did not pursue the suggestion that insecticide exposure could have been involved. On the other hand, Mr McCallum suggested that if hormonal imbalance is a causal factor, then that imbalance was present before the commencement of special service. During that special service it became necessary to treat the Applicant for a breast condition and a hormonal factor was then involved. The later onset in 1981 does not exclude (see Lennell) that the condition did not arise from some causal factor in his special service, or when the cell insult occurred.

The evidence clearly is that there is insufficient known of the condition to form a firm conclusion of what factors are involved certainly the medical evidence on hormonal involvement is strong but that is only one factor in an obscure cause. The evidence does not exclude to the degree of proof required under the Repatriation Act, other factors that as a real possibility, may be involved in the onset of the condition from which the member suffers. The Tribunal appreciates that the evidence given in re Lennell was directed in the main to other types of cancer but evidence of general application was led in that case which admits to the very uncertain times of onset, times of dormancy and times of manifestation and is such as to leave a doubt in the Tribunal's mind, sufficient to convince it that the Applicant's claim should succeed."

Section 107 VZZH of the Act provides that an applicant in 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. In its statement of the legal test which it was obliged to apply in deciding the appellant's claim, the Tribunal made no error of law which militated against the Commission.

The Tribunal said that "the evidence does not exclude to the degree of proof required under the Repatriation Act other factors that as a real possibility may be involved in the onset of the condition from which the member suffers". If the reference in this passage to "a real possibility" be regarded as an error, on the authority of the judgement of a Full Court of this Court in O'Brien v The Repatriation Commission (11 April 1984, unreported), which is presently under appeal to the High Court, it was not an error in favour of the appellant.

Counsel for the Commission submitted that the decision of the Tribunal was not properly open to it on the material which was before it.

Section 107VG of the Act provides that:

"The Tribunal, in conducting a proceeding, or the hearing of a proceeding, or in making a decision in a proceeding, on a review-

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to -

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or

(ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of member of the Forces was not reported to the appropriate authorities."

In my opinion, the decision of the Tribunal was properly open to it, operating under this charter, on the material which was before it. It had before it the letters of the operating surgeon, Mr Murphy, of 9 June 1981 and 9 March 1983, and accepted the latter as supporting the appellant's claim for pension, without the letter giving reasons for doing so. It accepted Dr Dunn's opinion that the cause of teratoma of the testis is obscure.

Dr Dunn went on to say that it is believed by some authorities to be due to hormonal imbalance and in some cases to be related to trauma. He concluded that "in this case the cause is hormonal imbalance. There is no evidence of trauma. There is some evidence of hormonal imbalance."

It is not for this Court to form any opinion of its own in relation to the facts, but it was open to the Tribunal to give whatever weight it chose to these views of Dr Dunn in deciding whether it was satisfied beyond reasonable doubt whether the cause of his teratoma of the testis was not related to war service.

The Tribunal may well have felt that it was not so satisfied in the light of that portion of Dr Dunn's report in which he said:

"The cause is obscure but it believed by some authorities to be due to hormonal imbalance, and in some cases to be related to trauma. In this case the cause is hormonal imbalance. There is no evidence of trauma. There is some evidence of hormonal imbalance."

It was open to the Tribunal to regard this statement as based upon the proposition that as there was some evidence of hormonal imbalance and no evidence of trauma, the conclusion followed that the cause of the appellant's teratoma was hormonal imbalance, not contributed to in any material degree or aggravated by his period of special service.

If one says of a condition that its cause is obscure and then cites the belief of some authorities that it may be due to hormonal imbalance, and in some cases to be related to trauma, it is not to be necessarily concluded in a particular case that in the presence of hormonal imbalance and the absence of trauma, the cause must be hormonal imbalance. The existence or presence in such a case of other factors is not necessarily excluded.

In my opinion the Tribunal was entitled to conclude that it was not satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the application.

I would allow the appeal, with costs.

JUDGE3

I have had the advantage of reading the reasons for judgment of Smithers A.C.J. and Sweeney J. and agree generally with them. The medical history of the appellant, the medical opinions and the statutory provisions relevant to the determination of this appeal set out in those reasons need not be repeated.

The appeal is from the judgment of a single Judge of the Court which set aside a decision of the Repatriation Review Tribunal (the Tribunal) and ordered that "the matter be remitted to the Tribunal to be heard and determined according to law after the hearing of any further evidence the Tribunal in its discretion sees fit to receive". The Tribunal had decided:-

"that the decision made by the Repatriation Commission on 19 March 1982, be set aside and for it is substituted the decision that the incapacity of the Applicant from Teratoma of Right Testis is accepted as being related to his eligible period of service pursuant to Section 6 of the Repatriation (Special Overseas Service) Act 1962 and the Commonwealth of Australia is liable to pay the pensions payable in accordance with that Act."

As the respondent to the appeal placed great reliance upon a report, dated 28 July, 1981, by a Departmental Medical Officer, Dr. D.J. Dunn, which was part of the evidentiary material before the Tribunal, it is necessary to repeat it in some detail. It was typed on a form supplied by the Department of Veterans' Affairs which had printed on it immediately after the heading and the appellant's name, the following:-

"Extract from Section 48 - Repatriation Act

A Medical Practitioner shall, in reporting on any claim in relation to a member of the forces, set out in his report his opinion:

In the case of a claim in respect of the incapacity of the member - as to the nature, cause and extent of the incapacity;

and shall also set out whether, in his opinion, the incapacity from which the member is suffering - resulted from an occurrence that happened during his war service;

arose out of or is attributable to his war service, or

has been contributed to in any material degree, or has been aggravated, by the conditions of his war service.

Where a Medical Practitioner entertains any doubt concerning any of the matters which by the last preceding sub-section he is required to report upon, he shall state in his report that he entertains such a doubt and shall indicate, as far as practicable, the nature and extent of his doubt."

Page 2 of the form had printed on it the following:-

"Cause

(a) Define the disability in simple language

(b) Discuss the generally known causes of the disability

(c) State the cause of the disability in this case"

Immediately beneath those printed paragraphs Dr. Dunn's report contained the following statements:-

"(a) Ref. Text Book of Pathology - Dobbino P 108a, Teratoma of the Testis is a malignant tumour that arises in the germ cells of the testis. They consist of a variety of tissue types and organ - like structures. In this case embryonal elements were present.

(b) The cause is obscure but is believed by some authorities to be due to hormonal imbalance, and in some cases to be related to trauma. (c) In this case the cause is hormonal imbalance. There is no evidence of trauma. There is some evidence of hormonal imbalance. Veteran developed gynaecomastia, (that is enlargement of the breast) on the (R) side. Some degree of gynaecomastia is physiological at puberty in all males, it usually subsides in early adolescence but occasionally persists in one or both sides. In this case it was on only one side, the lump was removed and consisted only of breast tissue. This gynaecomastia had been present for 12 months before surgery on 11.5.70 Ref. F. Med 14."

Pages 3, 4 and 5 of the departmental form were headed "Occurrence", "Attributability" and "Aggravation" respectively. On those pages Dr. Dunn stated his opinions that "there was no occurrence that caused (the) teratoma testis", "there was nothing in the service of the (appellant) to which teratoma testis may be related" and that the condition was "not present prior to 3.12.69. (i.e. the commencement of the eligibility period) Hormonal imbalance was present but was not aggravated by service".

It will be noted that Dr. Dunn's report, in dealing with "the generally known causes" of teratoma of the testis, included a statement that "the cause is obscure but is believed by some authorities to be due to hormonal imbalance, and in some cases to be related to trauma". In my opinion, when appropriate emphasis is given to the words underlined by me in that statement, it is not possible to conclude that, on the material before it, the Tribunal was required, as a matter of law, to accept Dr. Dunn's opinion that in "this case the cause is hormonal imbalance" or to be satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim.

The Tribunal made it clear that it had not reached a "firm conclusion that the applicant's special service was the or a causal factor in the onset of his incapacity" and expressed its conclusion in the following terms:-

"The evidence clearly is that there is insufficient known of the condition to form a firm conclusion of what factors are involved. Certainly the medical evidence on hormonal involvement is strong but that is only one factor in an obscure cause. The evidence does not exclude to the degree of proof required under the Repatriation Act, other factors that as a real possibility, may be involved in the onset of the condition from which the member suffers."

In my opinion the Tribunal was entitled, on the material before it, to reach that conclusion. I agree with Smithers A.C.J. that the Tribunal did not misinterpret the evidence of Dr. Dunn and that the passage in the Tribunal's reasons, which was cited by the learned judge, was referring to an earlier decision of a Repatriation Board that "it is considered that hormonal imbalance is a factor".

Lastly, in my opinion the provisions in the Act do not support the submissions advanced on behalf of the respondent that the Tribunal, if dissatisfied with the material before it, ought to have investigated the matter and, more specifically, if not satisfied with Dr. Dunn's evidence as to the cause of the teratoma of the testis, should have called upon Dr. Dunn to provide a better explanation.

It has not been shown that the Tribunal made any error of law in favour of the appellant or misdirected itself in any way. The appeal should be allowed and the respondent ordered to pay the appellant's taxed costs of and incidental to the appeal.