FARLEY-SMITH And REPATRIATION COMMISSION
[2010] AATA 637
•25 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 637
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4152
VETERANS' APPEALS DIVISION ) Re GWENDA FARLEY-SMITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Senior Member
Miss E A Shanahan, Member
Date25 August 2010
PlaceMelbourne
Decision
The decision made by the Veterans’ Review Board on 5 May 2003 is affirmed.
..........(sgd) Egon Fice...........
Senior Member
VETERANS’ AFFAIRS – kind of death – idiopathic myelofibrosis – myelodysplastic disorder – myeloproliferative diseases – chronic myeloid leukaemia – exposure to benzene – reasonable hypothesis – use of epidemiological studies as evidence – causative connection – case studies – cohort studies – hierarchical value of research – classification of research – WHO reclassification of myeloproliferative neoplasms – cytogenetics – chromosomal aberrations – using petrol to clean weapons and machinery – cleaning Bofors guns – calculation of degree of exposure to benzene
PROCEDURE – disqualification for apprehension of bias – conduct of hearing – refusal to admit evidence – pre-judgment of case – active case management – unfair questioning of witness – issue estoppel – effect of remittal on first decision – conceded facts – preservation of initial findings of fact – hearing of further evidence – withdrawal of concession – model litigant rules – expert evidence – person eminent in the field – independence of expert
Administrative Appeals Tribunal Act 1975 (Cth) s 44, s 44(4) and s 44(5)
Judiciary Act 1903
Veterans’ Entitlements Act 1986(Cth) s 7(1), s 8, s 13, s 120A, s 120(1), s 120(2) and s 120(4)
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Blair v Curran (1939) 62 CLR 464
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission [2009] 258 ALR 204
Commissioner for Government Transport v Adamcic (1961) 106 CLR 292
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] 229 CLR 577
Drake v Minister For Immigration And Ethnic Affairs (1979) 2 ALD 60
East v Repatriation Commission (1987) 16 FCR 517
Eastv Repatriation Commission (1987) 74 ALR 518
Ebner v the Official Trustee in Bankruptcy (2000) 205 CLR 337
Ferguson v Cole (2002) 76 ALD 399
Johnson v Johnson (2000) 201 CLR 488
Kowalski v Repatriation Commission [2010] FCA 409
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Manko v United States 636 F Supp 1419 (1986)
McGovern and Anor v Ku-Ring-Gai Council and Anor (2008) 251 ALR 558
Minister for Immigration and Multicultural Affairs v Wang (2003) 72 ALD 577
Morales v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 519
National Justice Compania Naviera S A v Prudential Assurance Co Ltd (the "Ikrian Reefer") [1993] 2 Lloyd's Rep 68, 81-82
Phosphate Cooperative of Australia Pty Ltd v Shears and City Farm Phosphate Pty Ltd (Brooking J, Supreme Court of Victoria unreported decision, 17 August 1988)
Re Leighton and Repatriation Commission [2000] AATA 144
Re Roncevich and Repatriation Commission (2006) 91 ALD 662
Repatriation Commission v Dunn [2006] FCA 1703
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 31 ALR 140; ; (147 CLR 635)
Repatriation Commission v Leighton [2001] FCA 246
Repatriation Commission v Nation (1995) 57 FCR 25
Repatriation Commission v Webb (1987) 76 ALR 131
SeltsamPty Limited v McGuiness (2000) 49 NSWLR 262
Webb v The Queen (1994) 181 CLR 41
Whitehouse v Jordan (1981) 1 ALL ER 267
Expert Evidence Law, Practice, Procedure And Advocacy, Law Book Co., 3rd edn, 2005
Hoffman, Haematology: Basic Principles and Practice, Ronald Hoffman et al, 2nd Edn, 1995The Oxford Text Book of Medicine, David Warrel et al, 4th Edn, 2003
Wintrobe’s, Clinical Haematology, Maxwell Wintrobe et al, 9th Edn, 1993Dorland's Illustrated Medical Dictionary, 27th Edn
Shorter Oxford English Dictionary, 6th EdnREASONS FOR DECISION
25 August 2010 Mr Egon Fice, Senior Member Miss E A Shanahan, Member 1. Mr William David Farley-Smith served in the Australian Army between 6 April 1942 and 8 August 1946. He had operational service as a gunner in Darwin between 1943 and 1945.
2. Mr Farley-Smith died on 14 November 2001. He was aged 78 years. His death certificate was certified by Dr Simon Thompson. The cause of death was stated as:
Myelofibrosis – 4 years
Oesophageal varices – 2 years
3. Mrs Gwenda Farley-Smith lodged a claim with the Repatriation Commission (the Commission) for a widows' pension on 11 February 2002. In her claim, she said she believed her husband's smoking of pipe tobacco caused or contributed to his death. She contended that her husband’s myelofibrosis was secondary to chronic myeloid leukaemia, which was brought on by his exposure to benzene through smoking, vapour inhalation and dermal contact.
4. On 7 March 2002 the Commission rejected Mrs Farley-Smith's claim on the grounds that the cause of myelofibrosis (MF) was not known and it was therefore not possible to relate her husband's MF to his service. On 15 May 2002 Mrs Farley-Smith applied to the Veterans' Review Board (VRB) for a review of the Commission's decision. On 5 May 2003 the VRB affirmed the Commission's decision. Mrs Farley-Smith then lodged an application with the Tribunal on 23 June 2003 seeking a review of the VRB decision.
5. On 4 October 2005 the Tribunal set aside the Commission's decision and instead decided that Mr Farley-Smith's death was war-caused. The Commission lodged an appeal to the Federal Court of Australia on 2 November 2005. The Commission's appeal was successful and on 18 July 2007 the Federal Court (Middleton J) ordered that:
1.The Appeal be allowed.
2.The decision of the Tribunal be set aside and the matter be remitted to a differently constituted Tribunal for determination according to law.
6. We need to deal with two preliminary issues which arose in the course of hearing this matter. The first arose on the eighth hearing day when Mr Dino De Marchi, who appeared on behalf of Mrs Farley-Smith, submitted that we should disqualify ourselves from continuing to hear this case. This submission was repeated on a number of occasions in the following two days and for different reasons. We declined to do so. The second issue concerned the fact that the Commission had, at the first Tribunal hearing, conceded that Mr Farley-Smith was exposed to benzene in the course of his operational service. Although the Commission had withdrawn that concession, Mr De Marchi submitted that the Commission was estopped from re-litigating that point.
DISQUALIFICATION FOR APREHENSION OF BIAS
7. In the course of hearing this matter on 8 April 2010, Mr De Marchi, who appeared on behalf of Mrs Farley-Smith, submitted that we should disqualify ourselves from continuing to hear this matter. He said:
It should disqualify itself because, in my submission, the Tribunal is ostensibly biased in relation to this particular client.
…and my submission is that an independent person sitting at the back of this court room and hearing what has transpired during the last five days of hearing would come to the conclusion that Mrs Farley-Smith would not get a fair hearing before this Tribunal given the conduct of Counsel acting for the respondent and the way that the Tribunal has dealt with the applicant’s counsel in this matter.
8. When questioned about the basis for this submission, Mr De Marchi said it was because of the rulings we had made throughout the course of the hearing. He explained that when he stood up to object to Ms Jane Macdonnell, counsel representing the Commission, who was attempting to truncate Dr Byron Collins’ evidence, he was not given the opportunity to do so.
9. At the time of this incident, Ms Macdonnell was cross-examining Dr Collins. Dr Collins had given a reasonably complete account of his conviction in 2001 for perjury. In the course of giving that account, the Tribunal asked Dr Collins to confirm that the conviction had nothing to do with his medical practice. He said it did not and went on to explain that a similar situation had arisen in the Supreme Court of New South Wales recently. It was at this point that Ms Macdonnell interjected, because she wished to explain to the witness that what another court or judge said about Dr Collins and this issue was simply not relevant before this Tribunal. However, before Ms Macdonnell could explain her interjection, Mr De Marchi rose to his feet to raise his objection and before he could complete that objection, Ms Macdonnell explained to Mr De Marchi that he hadn’t heard what she said because she was not given the opportunity to complete what she was about to say. This resulted in an exchange between counsel until the Tribunal was able to re-establish some sense of order.
10. Ms Macdonnell was then asked to complete what she was about to say and she did so. At that point, the Tribunal questioned Ms Macdonnell about the relevance of this line of questioning. Ms Macdonnell requested that the witness be asked to leave the hearing room while she explained the relevance of what she proposed to put to Dr Collins in the course of her cross-examination. The Tribunal agreed to that request and immediately following the Tribunal’s agreement, Mr De Marchi again rose and said he objected to the Tribunal taking that course of action. The Tribunal asked Dr Collins to leave the hearing room and while that was occurring, Mr De Marchi again asked to be heard. The Tribunal told Mr De Marchi that he would be heard just as soon as Dr Collins had left the room. It was following this exchange that Mr De Marchi stated his complaint about the applicant not getting a fair hearing because of the conduct of Ms Macdonnell and the way the Tribunal had dealt with him.
11. In the course of his submissions on the issue of bias, Mr De Marchi referred to an incident earlier in the proceedings. This involved Associate Professor Desmond Parkin on the second day of his re-examination, which was the fifth day of the hearing. On that day, Mr De Marchi sought to tender an opinion formulated by Associate Professor Parkin which apparently raised a new hypothesis. It was based on material obtained from the internet. Ms Macdonnell objected to the Associate Professor’s further statement being put into evidence because she had only been handed the document at the commencement of the hearing on that day. Ms Macdonnell submitted that if the document were admitted, the respondent’s case would be prejudiced because she had not had the opportunity to put the document to Professor Hedley Peach (a witness for the Commission) and to have his opinions about that document in evidence. Ms Macdonnell also objected to its admission on the basis that it was not material which arose out of cross-examination. We upheld Ms Macdonnell’s objections to the admission of that document and gave Mr De Marchi reasons for doing so. Nevertheless, we granted Mr De Marchi leave to canvass Associate Professor Parkin’s further opinions in the course of re-examination, subject of course to any objections that Ms Macdonnell wished to raise.
12. We explained to Mr De Marchi that his interjections and those made by Ms Macdonnell throughout the course of the hearing made it very difficult for the Tribunal to conduct the hearing in an orderly and fair manner. While explaining what the Tribunal was attempting to do by way of providing a fair hearing, Mr De Marchi again objected. This was one of a number of instances where, in the course of the Tribunal making a statement or ruling on some matter, Mr De Marchi simply rose and objected to the statement or ruling.
13. When further questioned, Mr De Marchi said that we should disqualify ourselves because we had precluded Mrs Farley-Smith from conducting her case in a fair manner. When asked to give a specific example, Mr De Marchi referred to the Tribunal refusing to admit into evidence a paper dealing with the incidence of benzene exposure and its effects. Mr De Marchi agreed that it was a layperson’s summary of what some of the epidemiological studies referred to in this case have found. It was a summary written for the lay person.
14. We did not admit that document because we had admitted into evidence numerous case reports and cohort studies, which dealt with all of the aspects of benzene exposure covered in the document Mrs Farley-Smith wished to tender. Furthermore, this Tribunal was partially constituted by a very highly qualified medical practitioner. We decided that a summary intended for laypersons would not assist us in light of the material that had already been admitted into evidence. We also expressed our concern about the fact that it was merely a summary of some scientific papers and, as a summary, it might well be inadequate to address the very complex medical issues which arise in the studies.
15. Mr De Marchi also complained about the fact that the Tribunal had directed the parties to evidence which it thought was relevant in this proceeding. Mr De Marchi submitted that because the Tribunal had already formulated an opinion about relevant evidence, that clearly disclosed an apprehension of bias. However, as we pointed out in the course of the hearing, all of the scientific evidence dealing with deleterious effects on the human body by exposure to benzene referred to the level of exposure, the time over which that exposure took place and the latency period, or the period between the last time a person was exposed to benzene and the clinical onset of a disease. What we attempted to point out to Mr De Marchi was that the lay witness evidence needed to address, if possible, those very significant aspects about exposure to benzene. The purpose of explaining this to Mr De Marchi was to give him the opportunity to address those issues. Despite that, Mr De Marchi submitted it indicated pre-judgement on the part of the Tribunal.
16. Mr De Marchi also complained about the examination of one of his witnesses, Mr Robert Wisbey, by the Tribunal. We explained to Mr De Marchi that the very brief and general written statements made by Mr Wisbey, which we admitted into evidence, did not explain in sufficient detail his role in operations carried out with the light anti-aircraft battery in Darwin. It was only upon detailed questioning that we were able to establish the basis for Mr Wisbey’s explanations about exposure to benzene in the operating environment in Darwin at the relevant time. This was not clear from his evidence-in-chief or from his cross-examination. The essential purpose of the questioning was to attempt to arrive at some indication about the frequency and degree of exposure to benzene in that particular environment.
17. Shortly after the cross-examination of Dr Collins recommenced on day eight of the hearing, Mr De Marchi rose again to ask that the cross-examination be held in private. This was despite the fact that Dr Collins had already given a full explanation about his perjury conviction in open hearing without objection. Although we explained to Mr De Marchi that this was a typical example of the way in which he frequently rose to object to certain matters proceeding in the way they were, he persisted in his objection, which we then overruled.
18. Mr De Marchi went on to suggest that letters between his office and Dr Collins attracted matters of confidentiality. When we asked Mr De Marchi whether he was claiming privilege, he said he was. This was despite the fact that those letters simply contained instructions to Dr Collins about the expert evidence he was asked to provide. Quite plainly, such letters of instruction could not attract solicitor/client privilege. Dr Collins was not a client of Mr De Marchi in respect of this application. Regardless, we were again subjected to lengthy submissions about solicitor/client privilege which simply went nowhere.
19. Mr De Marchi again requested that the Tribunal consider disqualifying itself on the ninth day of the hearing during closing submissions. His request came after an exchange with the Tribunal about Mr De Marchi’s instructing clerk going to the Tribunal library in an attempt to see if the librarian would find the AGS Legal Services Directions for him. We explained to Mr De Marchi that the Tribunal did not supply parties with library facilities. When asked to support his submission for the Tribunal to disqualify itself on the grounds he had stated, Mr De Marchi referred to the case Ebner v the Official Trustee in Bankruptcy (2000) 205 CLR 337, a decision of the High Court of Australia. When we pointed out to Mr De Marchi that Ebner was a conflict of interest case, he was undeterred and simply responded: conflict of interest and bias. When Mr De Marchi was asked if he had read the case, he said that he had not. He said he had previously read it. Quite clearly, Mr De Marchi had not recently read the case and while it certainly sets out general principles regarding apprehension of bias, the apprehension of bias in that case arose out of a conflict of interest. We did not understand Mr De Marchi to be claiming that the Tribunal in this case had a conflict of interest.
20. Mr De Marchi raised some final issues on the tenth day of hearing, the last day. This was after the Tribunal had allowed Mr De Marchi the entire ninth day of the hearing, between 10.00am and 4.32pm to make his submissions. Mr De Marchi did not conclude his submissions on that day and we permitted him one further hour on the tenth day of the hearing to conclude his submissions. Because of a necessary late start on the last hearing day, Ms Macdonnell was left with only three hours to make her submissions. Despite that, Mr De Marchi objected to having only one further hour to conclude his submissions. We did not allow that objection. Most of the second-last day was taken up with procedural matters and Mr De Marchi’s submissions about disqualification. In our opinion, Mr De Marchi had more than a fair opportunity to make the submissions he wanted to make about the substantive matters in this case.
21. On that last hearing day, Mr De Marchi opened with another application for the Tribunal to disqualify itself on the basis that it did not intend to allow the applicant an opportunity to respond to the submissions of the respondent, which he said was the normal practice in this Tribunal. This issue had already been covered in some detail on the previous day. Mr De Marchi had made lengthy submissions in the course of the hearing. In addition, this was the second occasion on which this Tribunal had heard this matter. Therefore, we determined that submissions in reply would not further assist the Tribunal. Again, Mr De Marchi submitted that he relied on Ebner’s case.
22. A useful starting point for an analysis of the law regarding disqualification for apprehension of bias is found in Webb v The Queen (1994) 181 CLR 41. In that case, Deane J explained that the doctrine of disqualification by reason of appearance of bias encompassed at least four distinct, although sometimes overlapping, main categories of case. His Honour said, at 74:
The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (28) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third (29) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
23. From the grounds we have attempted to summarise, it is clear that Mr De Marchi's submissions regarding apprehension of bias are based on the second of Justice Deane's categories of case. That is, the conduct of the hearing. None of the issues we have described above suggests overlap with any of the other three main categories of case. Despite that, the only case to which Mr De Marchi referred was Ebner's case, a matter which involved the first main category of case i.e. conflict of interest. In that case, the trial judge disclosed to the parties that he was a director of the trustee of a family trust, which owned approximately 8,000-9,000 shares in a bank, and that he was a contingent beneficiary of the trust. Although the bank was not a party to the proceeding, it had a pecuniary interest in the outcome.
24. Although Mr De Marchi said he had read that case, and we had pointed out to him that it involved a conflict of interest and had nothing to do with the conduct of the hearing of a matter, Mr De Marchi nevertheless insisted that Ebner's case supported his claim regarding apprehension of bias. In our opinion, it clearly does not. It falls within a completely different category. Ebner's case does, however, deal comprehensively with the apprehension of bias principle. The High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said, at 344 – 345:
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide [41] . That principle gives effect to the requirement that justice should both be done and be seen to be done [42] , a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
25. Gleeson CJ, McHugh, Gummow and Hayne JJ explained (at 345) that the apprehension of bias principle is an important principle because even the appearance of a departure from it is prohibited lest the integrity of the judicial system be undermined. They said:
… The question is one of possibility (real and not remote), not probability. …
They then explained the two steps to be taken in its application. They said:
[8] … First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
26. Other than articulating the apprehension of bias principle in the context of a conflict of interest, Ebner's case is of no assistance to Mrs Farley-Smith. What Mr De Marchi was required to do was to articulate the logical connection between this matter and the events that occurred in the course of the hearing, which might cause an independent lay observer to apprehend that we would decide this case on reasons other than its merits. We attempted to obtain the logical connection from him in the course of his submissions regarding disqualification. Mr De Marchi was not able to give us an answer to that question; nor did he attempt to direct us to any cases that dealt with disqualification by conduct.
27. McGovern and Anor v Ku-Ring-Gai Council and Anor (2008) 251 ALR 558 was a decision of the New South Wales Supreme Court – Court of Appeal (Speigelman CJ, Basten and Campbell JJA). Speigelman CJ pointed out that the Australian test for apprehension of bias, as expressed in terms of two mights, sets a low threshold with respect to a prejudgment case. He said that the identification of what constitutes a lack of impartiality or of prejudice in the mind of the decision‑maker involves an issue of some specificity. His Honour said, at 561:
[15] The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface Residents Association Inc v City of Winnipeg [1990] 3 SCR 1170 (Old St Boniface Residents Assn) where, in the terminology of the majority judgment: the decision-maker must be “capable of being persuaded” (at 1197c); pre-judgment is of such an “extent” that contrary representations “would be futile” (at 1197d–e); statements said to constitute pre-judgment must be an “expression of final opinion … which cannot be dislodged” (at 1197f); the position of the person must be “incapable of change” (at 1197g). The “incapable of persuasion” test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224.
[16] A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker “is open to persuasion” (at [71] and [105]), or whether the “conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented”: at [72].
28. In our view, there was nothing which Mr De Marchi referred to in his submissions regarding disqualification which pointed to the fact that we were not capable of being persuaded to his client's views about her claim. In fact, we specifically sought evidence and gave guidance to Mr De Marchi about the evidence we needed in order to persuade us that the hypothesis relied on by Mrs Farley-Smith was reasonable. This was because the epidemiological studies and case reports relied on by Mrs Farley-Smith only established links between benzene exposure and diseases in particular circumstances. If similar circumstances did not exist in Mr Farley-Smith's case, then it should have been apparent to Mr De Marchi that his client might have difficulty establishing a reasonable hypothesis.
29. By offering Mr De Marchi this assistance, and attempting to obtain this necessary evidentiary material from the witnesses, Mr De Marchi submitted that our conduct indicated prejudgment of this case. We did not accept that our conduct in attempting to do so might convey an apprehension of bias.
30. Although on a completely different topic, the issue which arose in the course of cross-examination of a witness in Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] 229 CLR 577 is similar to that which arose in this case. The High Court noted that in the course of the witness’ cross-examination, the primary judge commented on the paucity of the respondent's documentary evidence, indicating he thought that was unusual. The High Court noted that in assessing the logical connection between a matter complained of and any deviation from deciding the case on its merits, it was important to bear in mind the characteristics of modern litigation (609). Kirby and Crennan JJ referred to the High Court decision in Johnson v Johnson (2000) 201 CLR 488 where the Court said:
At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly [28] Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case" [29]. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
31. In Ferguson v Cole (2002) 76 ALD 399 the applicants alleged bias on the part of the Commissioner in the conduct of the Royal Commission inquiring into the Building and Construction Industry. The applicants asserted that the Commissioner had unfairly and arbitrarily restricted cross-examination on behalf of the applicants, that evidence had been gathered and used unfairly and that witnesses were questioned unfairly. At the time of hearing the matter, Branson J did not have the Commissioner's report. Nevertheless, the applicant sought to demonstrate that the conduct of the Commissioner and Counsel assisting the Commissioner during the course of the Royal Commission demonstrated actual bias towards them or gave rise to a reasonable apprehension of bias. Although specific instances of conduct were referred to, her Honour did not consider it necessary to repeat those in her decision. In her opinion, in the context of the conduct of the Royal Commission as a whole, she considered them to be of limited significance (426). She also said, at 421 - 442:
[81] It should, in my view, be stressed that it is not the role of this or any Court to oversee the day to day conduct of a Royal Commission so as to ensure, for example, that the openings of Counsel Assisting are complete and accurate, that evidence is fairly gathered and used, that individual witnesses are questioned fairly and that cross-examination is not restricted unfairly or arbitrarily. No inference should be drawn from this statement that I am satisfied that the criticisms made by the applicants of the specific instances of conduct referred to above are justified. Taken individually the criticisms are insufficiently significant to be relevant to the issues before this Court. Cumulatively, even if made out, they would be inadequate to establish that the applicants, or any of them, have or has been denied procedural fairness.
32. Finally, the Federal Court of Australia dealt with a similar allegation in Kowalski v Repatriation Commission [2010] FCA 409. In that case, Mansfield J found there was no actual or apprehended bias as a consequence of the conduct of the Tribunal's hearing into that matter. That claim appears to have arisen out of the Tribunal’s refusal to accept relevant evidence adduced by the applicant. Mansfield J was of the view that the documents annexed to the applicant's affidavit were either received into evidence or were not relevant to the proceeding before the Tribunal, or the appellant did not at any time seek to tender the documents.
33. In this case, we refused to accept into evidence some documents which may be said to have been relevant. However, one of those documents was merely a summary of epidemiological studies and case reports which were already in evidence; and the second document was an opinion prepared by Associate Professor Parkin containing a new hypothesis, which was given to the respondent on the second day of his re-examination. The admission of that document would have caused some prejudice to the Commission, as it was not in a position to go back to its expert witnesses and seek their comment on Associate Professor Parkin's new hypothesis. Furthermore, given that this case was first lodged in the Tribunal in 2003, and this is the second occasion on which the Tribunal has heard it, it cannot be said that Mrs Farley-Smith did not have a reasonable opportunity to put this material into evidence. In fact, Associate Professor Parkin gave evidence at the first hearing of this matter in February 2005.
34. In our opinion, we have given Mrs Farley-Smith every reasonable opportunity to present her case. There was no basis for Mr De Marchi's submissions that our conduct demonstrated that we had prejudged this matter, or that an independent layperson sitting in the hearing room might form that apprehension. As we said earlier, Mr De Marchi did not articulate any logical connection between the conduct he complained of and the deviation from the course of deciding the case on its merits that he feared. In the course of the hearing, we explained to Mr De Marchi the basis on which we made decisions regarding the issues he raised regarding apprehension of bias. Therefore, we rejected Mr De Marchi’s applications that we disqualify ourselves.
THE EFFECT OF THE REMITTAL BY MIDDLETON J
35. The effect of the Order allowing the appeal and setting aside the decision of the Tribunal means that there is no operative Tribunal decision and that a fresh determination must be made by the Tribunal (see Morales v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 519 at 532) (Morales' case).
36. At the first Tribunal hearing, it appeared the Commission conceded that in the course of his operational service, Mr Farley-Smith was exposed to benzene. The Commission withdrew that concession prior to this Tribunal hearing the matter on remittal from the Federal Court. In his closing submissions, Mr De Marchi submitted that the respondent is in fact estopped from raising this point of exposure to benzene. Mr De Marchi sought to put into evidence two faxes from the Department of Veterans' Affairs (DVA) in which its advocate, Mr Nyhof, said that the respondent would, at the first hearing, concede that Mr Farley-Smith was exposed to benzene during his army service. Those faxes are undated but they preceded the first hearing of this matter.
37. In fact, in the Tribunal’s reasons for decision at the first hearing, Senior Member Handley made it clear that in the course of the hearing, Mr Nyhof conceded that Mr Farley-Smith had been exposed to benzene. As we understood Mr De Marchi, the thrust of his argument was that because this concession was made prior to the first hearing, the Commission was estopped from now putting the exposure to benzene into issue. Although Mr De Marchi's argument was difficult to follow, we understood him to be submitting that an issue estoppel arose before this Tribunal because of the concession made at the first hearing. Mr De Marchi referred to the High Court decision in Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 (Daera Guba case). According to Mr De Marchi, the Commission should not be allowed to re-litigate that particular point.
38. There are a number of problems with Mr De Marchi's submission. To begin with, there needs to be an operative decision on which to base the estoppel. As the High Court of Australia (Dixon J) said in Blair v Curran (1939) 62 CLR 464, at 531:
A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, . . .
39. We accept that, because Mr Nyhof conceded Mr Farley-Smith's exposure to benzene, Senior Member Handley found that Mr Farley-Smith had been exposed to benzene in the course of his service with the Australian Army between 1942 and 1946. However, because Middleton J ordered that the decision of the Tribunal be set aside, as the Full Court explained in Morales’ case, the effect of that decision must be that no operative decision exists. Clearly, it must follow that the finding of the Tribunal at the first hearing regarding exposure to benzene has ceased to exist. Therefore, in our opinion, there is nothing upon which an issue estoppel can act (assuming of course that issue estoppel is capable of applying to this Tribunal). In fact, in Morales' case, the Full Court was also taken to the many authorities bearing on whether issue estoppel applied to decisions of the Migration Tribunal. It referred to the Daera Guba case, cited by Mr De Marchi. The Full Court said, at 533:
The short answer to this submission is that our conclusion that Sackville J's order related to the whole matter, so that the first decision of the tribunal was set aside in its entirety, means that nothing remained upon which, on any view, an issue estoppel could be founded.
The same reasoning applies here.
40. It is understandable that Mr De Marchi would seek to preserve the Commission’s concession regarding Mr Farley-Smith's exposure to benzene. A similar situation arose in Repatriation Commission v Nation (1995) 57 FCR 25 . The order made by Beaumont J in that case was in identical terms to the orders made by Middleton J in this case. Beaumont J examined the source of the court's jurisdiction in relation to appeals and, in particular, s 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). His Honour noted that s 44(4) of the AAT Act provided that the court, upon hearing and determining an appeal, may make such order as it thinks appropriate by reason of the decision. His Honour also pointed to s 44(5) of the AAT Act where it is provided that, without limiting by implication the generality of s 44(4), the orders that may be made by the Federal Court 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.
41. As in the case before us, the order remitting the matter in Nation's case was silent about a re-hearing with or without further evidence. Beaumont J said, at 33:
Although the Court's order referred to the "matter" rather than the "case", it appears that an order of the kind provided by s 44(5) was intended. As a matter of power, s 44(4) would, in any event, have authorised an order in the terms of the order made.
42. Beaumont J then went on to consider what was meant, in the case before him, by reference to matter. His Honour explained that the word could have meant the whole question being determined by the respondent's claim for a further pension. However, he also indicated that it could have meant the specific dispute then agitated before the court. He said that the word matter is sometimes used in a constitutional sense, to describe the whole of the dispute dealt with by the judicial process, but in the language of the Veterans’ Entitlements Act 1986 (VE Act), in other contexts, it can have a narrower meaning. Where there is ambiguity in the order of the remitter, resort may be had in aid of interpretation, to the surrounding circumstances. He said those circumstances included the reasons for judgment (at [34]).
43. In his Reasons for Decision, Middleton J found that the Tribunal had committed an error of law because it failed to accord procedural fairness to the Commission. That arose out of the fact that the applicant tendered a bundle of documents in evidence but the Commission's representatives were not given copies of those documents at the hearing and were not given the opportunity to make submissions in relation to them. They were also not given the opportunity of putting those documents before some of their witnesses. In its Reasons for Decision, the Tribunal relied on those documents. While his Honour considered the general power under s 44(4) of the AAT Act, which included the power not to remit the matter if it was appropriate, Middleton J said at [64]:
This is not a case where this Court can be sure what decision would have been reached had procedural fairness be accorded. I cannot be satisfied for the reasons given above that there is no possibility of a different result: see Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 165-166; and O’Sullivan (2003) 128 FCR at [62].
44. Given the circumstances of the decision made by Middleton J, it is tolerably clear that his Honour envisaged a re-hearing of all of the issues in contention before the Tribunal. In fact, we are satisfied that his Honour was exercising the power set out in s 44(5) of the AAT Act, which includes the hearing of further evidence. He expressly referred to the fact that the Commission’s medical witnesses did not have the opportunity to respond to the additional documents admitted into evidence. No doubt the Commission would, on remittal, seek to adduce further evidence.
45. Our view is supported by the notes we have of the first telephone directions hearing held by Deputy President Forgie on 31 October 2007, after the matter was remitted to the Tribunal. Those notes indicate that the matter was to be heard again with any evidence available. Following that is the notation: Start again. Those notes indicate that parties wished to rely on all evidence already produced and that there could be further reports. The notes record that the issue of the kind of death met by Mr Farley-Smith was to be completely revisited. Finally, if Mrs Farley-Smith decided to change her claim regarding the kind of death met by her husband, she needed to convey that to the Commission. Following that directions hearing, Deputy President McDonald made directions on 17 September 2008 requiring the parties to lodge with the Tribunal and serve on each other a Statement of Facts and Contentions, witness statements and any additional medical evidence upon which they intended to rely at the hearing.
46. In response to the Tribunal’s directions, the Commission lodged a Statement of Facts and Contentions with the Tribunal on 25 November 2008. At paragraph 66 of that Statement of Facts and Contentions the Commission stated:
Contrary to paragraph 4.2 of the applicant's Statement of Facts and Contentions, the Commission does not agree that the veteran was exposed to benzene during his operational service.
47. Plainly, the Commission put Mrs Farley-Smith on notice that the concession regarding exposure to benzene, which Mr Nyhof made prior to the first Tribunal hearing, had been withdrawn. Mr De Marchi made no complaint about the withdrawal of that concession until his submissions on the ninth day of the rehearing of this matter.
48. A similar problem arose in Re Roncevich and Repatriation Commission (2006) 91 ALD 662, when that matter was remitted to the Tribunal for the second time following a High Court decision. The Commission had initially conceded that Mr Roncevich suffered an internal derangement of his knee. However, at the second remittal hearing, the Commission contended that Mr Roncevich was not suffering from that condition. Mr Roncevich did not seek an adjournment of the hearing to meet the new argument but instead opposed the admission of new evidence on discretionary grounds. While the Tribunal (Downes J, Deputy President Hack SC and Member Ermert) expressed some sympathy for Mr Roncevich's position, it said it had no alternative but to allow the Commission to put in issue that which it had earlier conceded. It reached that decision based on the statutory task that the Tribunal performs and on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Wang (2003) 72 ALD 577 (Wang).
49. As the Full Court of the Federal Court (Bowen CJ, Smithers and Deane JJ) said in Drake v Minister For Immigration And Ethnic Affairs (1979) 2 ALD 60 at 68, the function of the Tribunal is to review the administrative decision that is under attack before it. The question for determination by the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for determination by the Tribunal is whether the decision was correct or preferable on the material before the Tribunal.
50. In Wang, the High Court was concerned with a remittal to the Refugee Review Tribunal (RRT) after the applicant had succeeded on an appeal to the Full Court of the Federal Court. The Full Court remitted the matter to the RRT and, in the event that there was a dispute over the constitution of that Tribunal, gave liberty to apply. The Full Court had expressed the view that if a differently constituted Tribunal reheard the matter, the respondent might be deprived of favourable findings of fact made by the Tribunal as originally constituted and therefore justice might only be done if the matter was referred to the Tribunal as originally constituted.
51. In order to preserve the benefit of the original Tribunal's finding of fact, the applicant exercised his liberty to apply and the Full Court ordered the matter be remitted to the Tribunal as originally constituted. The Minister was then granted special leave to apply to the High Court. In addressing that issue, McHugh J said, at 582:
To what extent the information before the Tribunal will differ from the information that was originally before [the original Tribunal member] is not known. The findings made by [the original Tribunal member] will have no legal status in that further review. Neither [the original Tribunal member], if she undertakes the further review, nor any other member of the Tribunal, if the Tribunal is differently constituted, will be bound by them.
52. The Tribunal in Roncevich said, in its view, the concession by the respondent should be treated no differently to findings of fact made by the earlier Tribunal. We agree with that proposition and, respectfully, adopt it. The order made by the High Court on remittal in Roncevich’s case was in exactly the same terms as Middleton J’s order made in this matter. The order was not qualified. The Tribunal in Roncevich said, at 666:
It follows that we are of the view that it is open to the respondent to raise now the issue earlier conceded. Despite reaching that conclusion we should observe that the respondent’s approach in withdrawing an earlier concession is not the type of approach that the tribunal expects of the executive branch of government, a fortiori, when it is done a very short time before the hearing.
53. In our view, we should adopt the same approach as the Tribunal did in Roncevich, save for the fact that, in this case, the Commission withdrew its concession at the very outset of this matter being remitted. We therefore do not make any criticism of the Commission for doing so.
54. Mr De Marchi criticised the Commission because, he submitted, its decision was contra to the Model Litigant Rules. We understood this to be a reference to The Model Litigant Obligation set out in The Legal Services Directions 2005 (the Directions) made under the Judiciary Act 1903. Having reviewed those Directions, we find Mr De Marchi's criticism has no basis. There is nothing in the Directions dealing with model litigant obligations which would even suggest that an agency should not withdraw concessions previously made. In fact, it seems to us that the agency is bound to do so if, upon reviewing the evidence and particularly any fresh evidence which has been obtained, it forms the view that the concession was wrongly made. It is required to assist the Tribunal in coming to the correct or preferable decision.
55. For the reasons we have expressed above, we do not accept that the Commission is estopped from putting into contention whether Mr Farley-Smith was exposed to benzene during his operational service. Following Middleton J’s decision to set aside the first Tribunal decision, even if issue estoppel applied to the Tribunal, nothing remained on which to found an estoppel. Given that the Commission amended its statement of facts and contentions at the very outset of the rehearing process to put Mr Farley-Smith’s exposure to benzene into contention, we find that the Commission is not estopped from arguing that Mr Farley-Smith was not exposed to benzene during his army service.
56. The substantive issues which we are required to determine are:
(a) whether the medical cause of Mr Farley-Smith’s death (kind of death) was as stated in his death certificate;
(b) having regard to the medical scientific evidence before us, whether the material points to a reasonable hypothesis of connection between Mr Farley-Smith’s claimed exposure to benzene and his medical cause of death; and
(c) assuming the material before us raises a reasonable hypothesis, whether exposure to benzene in the circumstances claimed by Mrs Farley-Smith was consistent with the reasonable hypothesis.
KIND OF DEATH
57. Where the death of a veteran is war-caused, the Commonwealth is, subject to the VE Act, liable to pay a pension by way of compensation to the dependants of the veteran in accordance with the VE Act (s 13). In order to be eligible to receive the pension, Mrs Farley-Smith must establish that her husband’s death was war-caused.
58. Section 8 of the VE Act provides that, for the purposes of the Act, the death of a veteran is taken to have been war-caused if, among other things, the death arose out of, or was attributable to, any eligible war service rendered by the veteran. The meaning of the expression eligible war service is set out in s 7(1) of the VE Act. A person who has rendered operational service is taken to have rendered eligible war service while the person was rendering operational service.
59. Prior to embarking upon an enquiry into the claimed connection between Mr Farley-Smith's death and his operational service, we must first determine the cause of death or, as it is referred to in the VE Act, the kind of death met by Mr Farley-Smith. As Selway J said in Repatriation Commission v Hancock (2003) 37 AAR 383 at 385 - 386:
… But in cases such as the present, the identification of the “kind of death” is the critical step in the analysis. In determining the “kind of death”, proof is on balance of probabilities: see section 120(4) of the act and see Fogerty v Repatriation Commission [2003] FCA FC 136 at [34]; Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282-283 [53] – [54].
60. The Full Court of the Federal Court (Mansfield, Stone and Edmonds JJ) in Collins v Repatriation Commission [2009] 258 ALR 204 dealt comprehensively with how the expression kind of death should be interpreted. It said, at 211:
Sections 8 and 13[VE Act] look to the “death” of a veteran, but do not use the term “kind of death”. Similarly, s 120 refers to the relationship of a veteran’s death with the operational service of the veteran. It also does not use the term “kind of death”. The term “kind of death” is introduced by ss 120A(2) and (4) and 196B(2) in the expression “particular kind of injury, disease or death”. That expression refers to the circumstances in which a Statement of Principles may be determined and then applied to decide whether an hypothesis connecting an injury or disease or death is reasonable as assessed under ss 120(1) and (3) as informed by s 120A(3).
The proper construction of those different terms was not a matter of debate on the appeal. It was common ground that, where the word “death” appears in ss 8 and 13 it means the medical cause of the death.
61. As the Full Court said, the question regarding the nature of the death of a veteran is anterior to and distinct from the question of the relationship of the death to the service of the veteran and the extent of entitlements to benefits under the VE Act in respect of that death. As to determination of the first question, the Full Court said, at 212:
In our view, the word “death” used in s 8, and in the phrase “injury, disease or death” in s 13 has the same meaning, that is the nature of the condition which causes the death. To be more precise, it is the medical cause or causes of the death.
62. The fact that there may be more than one medical cause for a veteran’s incapacity or death was recognised by the Full Court of the Federal Court (Bowen CJ, Brennan and Lockhart JJ) in Repatriation Commission v Law (1980) 31 ALR 140. This decision was upheld on appeal to the High Court (147 CLR 635. The Full Court said, at 151:
It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause.
63. After close examination of the sections dealing with death and the kind of death, their Honours in Collins said it is clear that the sections ask a causative question. They then said, at 220:
Those provisions support the conclusions that the enquiry about the death or the kind of death for the purposes of the VE Act is, in essence, a question of fact about the medical cause or causes of the death. It does not support the proposition on behalf of Mrs Collins that there is a legislative intention that any medical condition which hastens the time of death of a veteran by a measurable period, even a short one, where in medical terms another medical condition is clearly the medical condition which accounts for the pathological changes leading to death, is itself a medical cause of death.
64. The standard of proof which applies in determining the kind of death met by Mr Farley-Smith is that set out in s 120(4) of the VE Act. It provides that, except in making a determination to which s 120(1) or (2) applies, the Commission, and this Tribunal standing in its shoes, in making any determination or decision in respect of a matter arising under the Act, must decide the matter to its reasonable satisfaction. As Selway J said in Repatriation Commission v Hancock [2003] FCA 711 at [11]:
. . . .
(b) Next, the Tribunal was required to determine on balance of probabilities what `kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other `kinds of death' which were applicable to that death.
. . .
65. As we understood Mrs Farley-Smith's claim, she submitted three hypotheses linking her husband's death with his operational service. They are:
(a)his death from myelofibrosis (MF) was connected to his exposure to tobacco products containing benzene and to exposure to benzene in the course of using petroleum products to clean machine parts and to wash his hands;
(b)MF is a disease associated with myeloid dysplastic disorder which was connected to his operational service by exposure to benzene; and
(c)that her husband's MF was secondary to chronic myeloid leukaemia (CML) which was connected to his operational service by consumption of tobacco products containing benzene.
66. It is helpful, at the outset, to identify the meaning of the medical terminology used in the various medical reports relied on by both parties.
· Myeloid and the prefix myelo refer to bone-marrow progenitor cells. It is also more broadly defined as pertaining to, derived from, or resembling bone-marrow.
· Proliferative indicates an increase in the number of cells, the cells however retaining their normal architecture.
· Metaplasia is the term used to describe cells changing from one type to another but showing normal growth characteristics and form.
· Myeloid metaplasia is the occurrence of myeloid tissue in the extramedullary sites, specifically, a syndrome characterised by splenomegaly (enlargement of the spleen), anaemia, the presence of nucleated erythrocytes (immature form of elements found in peripheral blood, also called red blood cells or corpuscles) and immature granulocytes (white cell precursors) in the circulating blood; and by extramedullary haematopoiesis (the formation and development of blood cells outside the bone-marrow, as in the spleen, liver, and lymph nodes).
· Dysplasia indicates abnormality or disordering of cell growth.
· Neoplasia is a new and abnormal growth digressing from the architecture of the original cell and in the case of high-grade malignancies showing marked de-differentiation.
· Plasia is derived from the Greek word plasis, which means formation.
67. Dr Thompson was Mr Farley-Smith’s treating general practitioner from 25 March 1997 until his death. In April 1997 Dr Thompson’s examination of Mr Farley-Smith revealed a moderately enlarged spleen. Following this finding, appropriate investigations were undertaken. A bone-marrow biopsy eventually yielded the diagnosis of chronic myelofibrosis in the early fibrotic phase; marrow reserve appears adequate. Thereafter, the veteran was monitored with full blood examinations and remained relatively stable until he developed melaena in October 1999.
68. A full blood examination was performed in October 1999. It was reported on by Dr Alan Mills as being consistent with known myelofibrosis.
69. Mr Farley-Smith was referred to Mr William Hanna, surgeon, at which time bleeding oesophageal varices were diagnosed. Mr Hanna noted a history of weight loss of two stone over two years, the passage of black stools consistent with melaena. He was aware that a diagnosis of MF had been made the year before. An examination conducted at that time detected massive splenomegaly. Mr Hanna arranged for a gastroscopy, which revealed bleeding oesophageal varices. In November 1999 the oesophageal varices were banded. Further banding was done subsequently. Mr Farley-Smith had another full blood examination in December 2000. Again, the report stated his condition to be consistent with known myelofibrosis. The only other disease with which Mr Farley-Smith was diagnosed, according to the medical records before the Tribunal, was Parkinson's disease in 2000.
70. Throughout 2000 Mr Farley-Smith’s splenomegaly increased and he continued to complain of fatigue and weakness. By June 2001 he was described as appearing cachetic (the condition of weakness and wasting of the body associated with chronic illness) and required palliative care. By October 2001 Mr Farley-Smith required full care, including supplementary feeding with Sustagen. He was experiencing abdominal pain. On 14 November 2001 he required several intramuscular injections of morphine for the control of his abdominal pain. He died on that day.
71. In August 2001 Dr Thompson voiced his suspicions that Mr Farley-Smith might have CML. However, the full blood examination results provided in the doctor’s clinical notes, while showing a raised white cell count, was considered by the pathologist to be consistent with the known MF.
72. Mr Farley-Smith was not seen by a haematologist or oncologist.
73. There was no dispute about the fact that Mr Farley-Smith had acquired MF. However, the Commission submitted that there was no evidence of any disease, other than primary MF (PMF), which caused or contributed to Mr Farley-Smith's death.
74. Expert medical evidence was obtained from Dr Collins, a pathologist; Associate Professor Parkin, a clinical and laboratory haematologist; Professor Peach, Professor of Public Health and a molecular biologist; and Professor Richard Fox, the past Professor and Director of Haematology and Oncology at the Royal Melbourne Hospital.
75. While the Commission objected to the admission of the evidence given by Dr Collins and Associate Professor Parkin, as we understood those objections, they related to their opinions regarding the reasonableness of the hypothesis put forward by Mrs Farley-Smith connecting the medical cause of her husband's death with his operational service. We did not understand those objections to go to the opinions offered by Dr Collins and Associate Professor Parkin about the kind of death met by Mr Farley-Smith. Therefore, we will refer to the evidentiary material provided by Dr Collins and Associate Professor Parkin in respect of the kind of death met by Mr Farley-Smith and deal with the objection regarding whether those medical practitioners should be regarded as expert or eminent in the relevant field of knowledge when dealing with Mrs Farley-Smith’s hypothesis.
76. In a report dated 31 December 2003, Dr Collins said that, on the information which had been provided to him, he could see no strong reason to dispute the causes of death as stated in the death certificate prepared by Mr Farley-Smith's general practitioner, Dr Thompson. Dr Collins qualified that opinion by stating he was unsure as to the immediate/final cause of death. This was because Mr Farley-Smith's clinical status in the terminal weeks was not exhaustively documented in Dr Thompson's notes.
77. Dr Collins referred to the hypothesis on which Mrs Farley-Smith relied at the first hearing of this matter by the Tribunal, that being that Mr Farley-Smith's myelofibrotic condition was as a complication of pre-existing chronic myeloid leukaemia.He said that hypothesis could not be substantiated by the information contained in the trephine biopsy/bone-marrow examination report. Dr Collins said: it is highly likely that the late veteran did suffer from primary, idiopathic myelofibrosis or agnogenic myeloid metaplasia, as indicated by Dr Mills. That of course is to be distinguished from myeloid dysplastic disorder, which Mrs Farley-Smith relied upon in this application.
78. Dr Collins' further evidence was that PMF results from a clonal disorder of multipotent haematopoietic progenitor (stem) cells, generally of unknown aetiology, while secondary MF develops in association with a well defined, pre-existing primary disease process, such as an infection or malignancy.
79. After Mrs Farley-Smith wrote to Associate Professor Parkin in November 2002 seeking his assistance with her husband's claim, Associate Professor Parkin responded with an opinion dated 7 March 2003. Mrs Farley-Smith had explained, in some detail, the symptoms experienced by her husband prior to his death. They included the constitutional problems of marked weight loss and weakness.
80. Associate Professor Parkin said in his 7 March 2003 letter that the symptoms experienced by Mr Farley-Smith may have a variety of causes and that the symptoms described by Mrs Farley-Smith were of little help in defining a case- specific diagnosis. In answer to Mrs Farley-Smith's question whether her husband had CML or PMF, Associate Professor Parkin said that both may be associated with debility, a very large spleen and lowered levels of blood cells. However, he had no bone-marrow report and no evidence of cytogenic tests being performed on the bone marrow. Nevertheless, in his opinion, Mr Farley-Smith had PMF. He set out seven reasons which led to his opinion. Among those were that Mr Farley-Smith did not have a raised white cell count at diagnosis, which he said was unusual in CML; he had significant bone-marrow fibrosis; his spleen was massively enlarged; he had oesophageal varices, which were a well recognised complication of PMF; and that at his age, presentation and survival would marginally favour PMF.
81. In a further letter dated 24 April 2003, addressed to Mrs Farley-Smith, referring to the diagnosis of PMF, Associate Professor Parkin said:
This was the conclusion of the Appeal's Board and I think on the balance this is correct. As I pointed out in my previous letters there are many features which support this contention.
82. Professor Fox was also of the opinion that Mr Farley-Smith had developed PMF. He explained that this occurs when bone-marrow, in which blood cells are made, is overtaken by fibrous tissue (scarring). He said this often leads to a fall in the red cell count and there may be a rise or a fall in the white cell and platelet counts. Professor Fox explained there is a compensatory phenomenon called extramedullary haematopoiesis, which is an attempt by bone-marrow cells to develop blood cells in the spleen and other tissues. He said the disease can be accompanied by enormous enlargement of the spleen as had happened in Mr Farley-Smith's case. He explained that enlargement of the spleen can interfere with the venous drainage system from the gastrointestinal tract, including the oesophagus. This can lead to a condition called portal hypertension in which there may be massive enlargement of the veins at the lower end of the oesophagus, called oesophageal varices. There is a tendency for these to bleed and that can prove fatal. In his opinion, this appeared to have occurred in Mr Farley-Smith’s case.
83. In a further brief report dated 10 August 2004, Professor Fox said the unequivocal information given to him was that Mr Farley-Smith suffered from myelofibrosis, which is a myeloproliferative disease, quite distinct from myelodysplastic syndrome. He said there was no evidence to suggest Mr Farley-Smith suffered from myelodysplastic disorder.
84. Professor Fox also referred to the fact that Dr Thompson had suggested a part of Mr Farley-Smith's initial illness included CML, which then went on to develop MF. Professor Fox said that in general, this does not occur and there was no specific evidence that Mr Farley-Smith had CML. He explained that some individuals with MF may have a high polymorphic neutrophil white cell count initially as part of their illness, but this is not CML and the specific chromosomal defects associated with CML are not present.
85. The Tribunal asked Professor Fox to comment on the fact that a bone marrow biopsy performed in 1997 noted that the bone marrow was of normal cellularity, despite the presence of reticular changes and MF. Professor Fox said that would suggest Mr Farley-Smith did not have polycythaemia rubra vera and that he did not have essential thrombocythaemia, which were conditions Mr De Marchi referred to as possibly leading to MF. He also said that the bone-marrow biopsy would suggest Mr Farley-Smith did not have myelodysplasia. He said myelodysplasia does not end up as MF; it ends up as either a hyperplastic‑aplastic type condition or acute leukaemia. He said the biopsy suggested that Mr Farley-Smith was slowly developing PMF.
86. In a written report dated 26 March 2004, Professor Peach said that, referring to Dr Thompson's notes and the bone-marrow biopsy done in 1997, he was of the opinion that Mr Farley-Smith suffered MF. He said that Dr Mills, who reported on the bone marrow biopsy, did not attribute Mr Farley-Smith's MF to any of the other medical conditions which can lead to fibrosis of the bone marrow, including chronic myelogenous leukaemia.
87. In his written report dated 26 July 2004, Professor Peach explained that myelodysplastic disorder and MF, while being disorders of the stem cells which gives rise to the red blood cells, white blood cells and platelets, are different disorders. He said the myelodysplastic disorders are characterised by progressive reduction of red cells, white cells or platelets in the blood, associated with the production of cells which have an abnormal appearance, chromosomal abnormalities and which are ineffective. MF, on the other hand, is characterised by abnormalities in the production of red cells, white cells and platelets associated with the fibrosis of the bone marrow and the production of blood cells at sites outside the bone. Professor Peach said that a film of the peripheral blood and particularly an examination of the bone marrow will usually yield the diagnosis. Professor Peach explained that clues that a patient might be suffering from a myelodysplastic disorder or MF might come from his or her age, symptoms, physical examination and blood count.
88. Professor Peach examined all of these factors in relation to Mr Farley-Smith, including the symptoms which had been recorded by Mrs Farley-Smith. He agreed that Mr Farley-Smith's blood film disclosed that some of the red cells were small, varied in shape and were of a teardrop appearance. There was also a range of immature white blood cells. Some of the platelets appeared large. He said that enlarged platelets and red blood cells with a teardrop appearance might be found in myelodysplastic disorder or MF. However, a range of immature white blood cells might favour MF. He noted that the bone marrow examination revealed a dry tap, increase in fibres, normal ratio of cells to fat and scattered islands of red and white cell precursors.
89. Professor Peach said there were areas of increased platelet production with enlarged platelet precursors. The dry tap, increase in fibres and scattered islands of red and white cell precursors is what one would expect to find in MF. However, the large numbers of immature and abnormal looking red cells, white cells and platelets, which one would have expected to find in myelodysplastic disorder, were not present. Having weighed up all of the factors that would assist in a correct diagnosis, Professor Peach concluded that the bone marrow examination was definitive and it disclosed Mr Farley-Smith was suffering from MF and not myelodysplastic disorder.
90. In our opinion, the evidence of the medical cause of Mr Farley-Smith's death clearly excludes CML and myelodysplastic disorder. All of the medical evidence strongly points to PMF and accordingly, on the balance of probabilities, we find that the kind of death met by Mr Farley-Smith was PMF.
91. Having determined the kind of death met by Mr Farley-Smith, we are now required to determine whether his death was war-caused, as that expression is defined in the VE Act.
WAS MR FARLEY-SMITH'S DEATH WAR-CAUSED
92. There was no issue about the fact that Mr Farley-Smith rendered operational service. Section 6A of the VE Act describes the nature of service which constitutes operational service during World War II. A member of the defence force who had continuous, full time service for at least three months in that part of the Northern Territory which is north of the parallel 14 degrees 30 minutes south latitude (including any of the islands joining the Northern Territory), between 19 February 1942 and 12 November 1943 inclusive, is said to have had operational service. Where a member of the defence forces had continuous full time service during World War II, where that service was rendered immediately before or immediately after the operational service referred to immediately above, that service is also considered to be operational service.
93. Mr Farley-Smith's service record indicates he enlisted in the Australian Army on 6 April 1942 and was discharged in July 1946. The records indicate that he qualified as having had operational service, even though he was hospitalised in South Australia for lengthy periods. After being posted to Darwin with 112 Light Anti-Aircraft Regiment (112 LAA) on 4 June 1943, he was first hospitalised on 28 July 1943. Mr Farley-Smith rejoined 112 LAA on 27 September 1943 but was again hospitalised on 12 July 1944. He rejoined his unit on 24 October 1944, remaining in Darwin until his transfer to Victoria on 30 January 1945.
94. Mr Farley-Smith's service records indicate that he qualified as a gun layer in September 1942. He appears to have served in that capacity during the time he was with 112 LAA. He spent approximately 13 months with 112 LAA.
95. Mr De Marchi submitted that the hypothesis connecting Mr Farley-Smith's death with his eligible war service was his exposure to tobacco products containing benzene, and exposure to benzene by contact with petroleum products he used to clean machine parts, including the Bofors anti-aircraft gun which was operated by 112 LAA.
96. Section 120(1) of the VE Act provides:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection is affected by section 120A.
97. Our first task is to determine whether the causal hypothesis advanced on behalf of Mrs Farley-Smith is reasonable. That is because s 120(3) of the VE Act provides that:
. . .
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
98. We must bear in mind the distinction between a mere hypothesis and a reasonable hypothesis. As the Full Court of the Federal Court said in East v Repatriation Commission (1987) 16 FCR 517, in order to find a reasonable hypothesis, the material must point to and not merely leave open a hypothesis as a reasonable hypothesis. It need not of course be proved to be correct as a matter of fact. However, it cannot be merely a possibility or a supposition.
99. Section 120A of the VE Act deals with the reasonableness of a hypothesis advanced by a veteran, indicating that it is to be assessed by reference to the relevant Statements of Principles (SoP). Section 120A(3) of the VE Act provides that, for the purposes of s 120(3), a hypothesis connecting the death of a person with the circumstances of any particular service that person has rendered is reasonable only if there is in force a SoP determined under s 196B(2) or (11) of the VE Act; or a determination made by the Commission under s 180A(2) which upholds the hypothesis.
100. However, that section is qualified by s 120A(4) of the VE Act. It provides that s 120A(3) does not apply in relation to a claim in respect of the death of a person if the Repatriation Medical Authority (RMA) has neither determined a SoP under s 196B(2) of the VE Act, nor declared that it does not propose to make such a SoP in respect of, amongst other things, the kind of death met by the person.
101. The RMA has not determined a SoP concerning myelofibrosis. Nor has the RMA declared that it does not propose to make a SoP concerning myelofibrosis. In that case, we are back to the position which existed prior to the introduction of SoPs. The approach we must adopt is to be found in cases dealing with veterans’ claims which were made prior to 1 June 1994.
102. It is important, at this stage, to bear in mind that a hypothesis is merely a proposition made as a basis for reasoning without the assumption of its truth. Nevertheless, a hypothesis must have a sound basis. As the High Court of Australia (Mason CJ, Deane, McHugh JJ) said in Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell's case), at 412: There is no presumption that the injury, disease or death of a veteran was war caused: s 120(5). The Court pointed out that the purpose of s 120(3) is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis.
103. In determining whether a hypothesis is reasonable, the Court said, at 414:
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. . . However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. . . .
104. The Court then referred to the its decision in Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 and, quoting from that case, said at 414-415:
However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature" (13). Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous" [14] .
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.
105. After determining whether a hypothesis raised by a veteran is reasonable, the claim must then be dealt with in accordance with s 120(1) of the VE Act. It is only then that we should embark upon a fact-finding exercise. As the High Court said, 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 is claimed to support them or because of the superior 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 the determination. . . Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist [16].
106. In Bushell's case, Brennan J cited with approval the decisions of the Full Court of the Federal Court in East's case and the decision of Beaumont J in Repatriation Commission v Webb (1987) 76 ALR 131, where His Honour said:
It is hardly necessary to observe that the question whether an hypothesis is `reasonable' is one thing; to determine whether, as a matter of professional opinion, that hypothesis represents the preferred view is a different matter: a number of opinions may be held by a number of experts in the field; each view may be reasonably held notwithstanding that they may lead to different conclusions. . . . It is possible, especially as here, where the aetiology of the disease is unknown, to have more than one reasonable hypothesis advanced which suggest different causes of the disease. The exercise is not one of balancing or weighing the respective merits of a range of professional opinions. Rather, it is a case of determining whether the particular theory has a rational foundation." [at 135].
250. A number of former servicemen who served in LAA batteries in the Darwin area during Mr Farley-Smith’s period of service gave evidence about their activities in the course or rendering their service. However, as Ms Macdonnell submitted, none of those persons served in 160 LAA Bty in the Northern Territory and, unlike Mr Farley-Smith, they had a variety of roles in the course of their operational service which required them to drive, ride and/or service motor vehicles. It was essentially in those roles that the witnesses claimed to have used petrol containing benzene for cleaning engine parts and oil and grease from their hands. However, as we understood Mrs Farley-Smith’s contentions, her husband mainly used petrol when cleaning the Bofors gun of which he was a crewmember.
251. Mr Kevan Salter provided a written statement dated 25 January 2004. He said that he was a gunner with the heavy artillery stationed in Darwin. That is of course different to the LAA batteries, which were equipped with the 40mm Bofors gun. Mr Salter had operational service between 1940 and 1942 in the Darwin area. He returned to Sydney in 1942, where he performed duties as a dispatch rider. In his written statement Mr Salter said that simply because a serviceman had the rank gunner, did not mean that the person was solely concerned with guns. He said there was a range of mechanical equipment such as trucks, motorcycles, trench diggers, generators and other machinery which was used and required to be maintained. Mr Salter said it was common practice to use petroleum products, such as petrol and phenol, to clean parts and machinery and to wash one’s hands in. However, and importantly, he said: Of course gun oil was used on firing equipment such as guns, rifles and Bren or Owen guns.
252. Mr Wisbey testified that he served with the Australian Army in 159 LAA Bty between 1942 and 1944. He described himself as a gunner driver/wireless operator. Mr Morgan’s research into Mr Wisbey’s service records discloses that he qualified as a trade group II driver operator in the Northern Territory on 26 August 1944. He departed the Northern Territory on 17 December 1944. Mr Wisbey’s service records indicate he was graded to driver/operator on 26 August 1944. This followed a seven-week training course.
253. In an undated statement, which we admitted into evidence, Mr Wisbey said that at one stage, he was a batman (an officer’s personal attendant) for a period of six months. In his oral evidence, Mr Wisbey said that he trained as a driver at Werribee, before 159 LAA Bty moved into the Darwin area. He said they had imaginary guns for training and he was never trained to operate the Bofors gun. In fact, Mr Morgan’s research includes a photograph which was said to be taken in March 1943 of a crew firing a Bofors gun. The caption underneath the photograph states that this was the 112th Light Anti-Aircraft Regiment, Royal Australian Artillery training non-combatant personnel to use Anti-Aircraft weapons.
254. Mr Wisbey said that in December 1942 he had a falling out with the officer for whom he worked as a batman, and because one of the gunners on a gun referred to as K4 was struck by lightning one night, he became the driver for that gun. He said that other than that, he was on the gun site doing what he described as his share of spotter’s duty. However, as Mr Morgan’s research disclosed, each gun had two gun layers who were seated on the gun itself. One layer directed the gun in the horizontal plane, while the other directed the gun in the vertical plane. In fact, with the introduction of a device called the Predictor, which was an electronic data processor, the two gun layers were referred to as spotters. Mr Wisbey, in his evidence, seems to have confused the duty of a spotter with those persons who man observation posts searching for enemy aircraft.
255. As the driver for the gun, Mr Wisbey’s role was to hitch the gun to the truck so that it could be moved if that was required. The truck was used to carry many things, including drums of water, petrol and other lubricants. It was also used to carry sand for sandbags and any other materials necessary for the establishment of the support services around gun sites. As Ms Macdonnell submitted, this role was quite different to that of Mr Farley-Smith. Mr Farley-Smith’s service records show that he was a gunner; group III and these men were responsible for tracking a target with the gun in the horizontal and vertical planes. By way of distinction, Mr Wisbey was a driver and then a driver operator, group II.
256. In his oral evidence, Mr Wisbey said that gun drill was conducted at dawn and at dusk. He said that gun parts were removed during the gun drill and that if they were dropped, they were cleaned with whatever fluid there was, usually petrol. In fact, Mr Wisbey said that a mixture of oil, petrol and kerosene was kept at the gun site for that purpose. He said petrol was siphoned out of the truck and he took the petrol up to the gun site or wherever the oil was and he would prepare the mixture, put the petrol or kerosene or whatever into the oil and the gun was cleaned and wiped over with that mixture. He said he would do that once in every 11 days, when it was his turn. Mr Wisbey’s evidence was that the cleaning took no more than half an hour on each occasion. He was also of the view that bare metal could move against bare metal in a gun without oil. Mr Wisbey said under cross-examination that sometimes oil was not available at all. He could not recall how often but he thought it was seldom.
257. Mr Ian Devine gave evidence at the Tribunal hearing in a claim brought by Mrs Prestegar for a widow's pension following the death of her husband. The transcript of his evidence in that matter was put into evidence in this case. He was a Lance Corporal Mechanic before transferring to 150 LAA Bty as a gunner in June 1943. His service in the Darwin area was between September 1942 and November 1944. Mr Devine’s evidence was that as a motor vehicle mechanic, he was frequently exposed to petrol fumes and spills from petrol when he was refuelling motorcycles and other vehicles. He also said that petrol was used to clean the motorbikes. Mr Devine said that petrol was put onto a rag to wipe various parts of the motorcycle.
258. Mr Devine was also contacted by Mr Peter Pearson, also a researcher employed by Writeway. He was interviewed on 26 October 2004 and asked about the material used for cleaning guns and equipment. According to Mr Pearson, Mr Devine said petrol was used fairly regularly. He said the guns were cleaned daily but he was unable to say how often petrol was used for that task. He was unable to comment about the environment created by the use of petrol for cleaning guns and equipment. He did not make any claim of being exposed to benzene or petrol as a gunner.
259. Mr Pearson contacted some 13 WW II veterans who served with the 112 LAA Regiment. Their recollections about the use of petrol to clean the guns varied considerably, with most being unable to recall what was used. Some of those persons said petrol was used fairly regularly and that the guns were cleaned daily; while others simply recalled that the guns were cleaned after action but otherwise, once per week. Some were of the view that petrol was sometimes used to clean the guns.
260. Mrs Farley-Smith’s evidence about her husband’s exposure to petroleum products while on service in Darwin was unhelpful. Her information was based on what others had told her about service in Darwin during the relevant period. In fact, as she stated in her letter to Associate Professor Parkin dated 21 April 2003, she had no idea that her husband’s unit used benzene all of the time. She asked her brother-in-law, who was also in the artillery, about the use of benzene and was told that it was used a lot for cleaning grease and oil from weapons, machinery and hands.
261. At the first hearing of this matter before the Tribunal, Mrs Farley-Smith was asked whether her husband spoke to her about his duties during the war. She responded: Not a lot, he never spoke about the war a lot. She said she generally knew that he handled guns but she could not recall much else about what her husband had told her. In her earlier evidence, she also said she had spoken with Mrs Prestegar and Mr Wisbey. She said Mrs Prestegar thought Mr Farley-Smith was a dispatch rider. She also spoke with Mr Salter. The transcript of the first hearing disclosed that she had no knowledge from information given to her by her husband about the use of benzene in Darwin. She said:
Actually I didn’t know anything about the benzene or its use but I happened to be talking to a Vietnam vet one day and I was talking about my husband and he said, Oh, what did he do and I said he was a gunner. The first thing he said to me, well, he said he would have used benzene, he said, for cleaning implements and all that sort of thing. So I knew Mr Salter had been in the heavy artillery and I didn’t tell him why I wanted to know, I just said to him, could you tell me whether you used benzene in the war and if you did, what did you use it for. And he said yes, we did, we used products that contained it, he said, for all the reasons of cleaning things, cleaning their hands, cleaning parts of machinery and that.
262. It is significant that Mr Salter did not appear to tell Mrs Farley-Smith that benzene was used for cleaning the guns. In fact, given that he served as a dispatch rider, and was more likely to have been in contact with engines including their repair, maintenance and cleaning, it is not surprising that his reference to the use of petrol was restricted to that type of machinery and did not include guns. In fact, in his written statement dated 25 January 2004, Mr Salter expressly excluded the use of petroleum products on firing equipment such as guns, rifles and Bren or Owen guns. His statement was restricted to ordinary mechanical equipment. Mrs Farley-Smith seems to have extended that statement to include guns.
263. In the course of her cross-examination, Ms Macdonnell put to Mrs Farley-Smith that her understanding about her husband’s exposure to benzene during his war service rested only on the statements of Mrs Prestegar, Mr Wisbey, Mr Salter and a note of a conversation she had with Mr Bannister. She said that was incorrect. When asked what the basis was for her understanding, she said:
On what he told me. I didn’t know what connection they had had. I knew before that that he had had contact with petroleum products and petrol and that I didn’t know what they had had any contact with or what they actually did.
In the course of her re-examination by Mr De Marchi, Mrs Farley-Smith was asked whether her husband told her that he had cleaned guns at all, she said: Yes. When asked whether he told her what he had cleaned them with, she said: Petrol and petroleum products, or one…
264. This evidence of course contradicts the evidence Mrs Farley-Smith gave at the first hearing and it conflicts with the letter she wrote to Associate Professor Parkin on 21 April 2003. While we do not suggest that Mrs Farley-Smith had deliberately changed her story since the first hearing, it is clear that the evidence she gave on this occasion about her husband using petroleum products to clean the guns was unreliable.
265. The notion that Mr Farley-Smith was a motorcycle rider in the course of his army service in the Darwin area came from Mrs Prestegar. In a letter dated 7 March 2010, which was admitted into evidence, she said that Mr Farley-Smith was with her husband in Darwin and was a Don R (dispatch rider or motorcycle orderly). She also said that Mr Farley-Smith came down to Healesville with her husband in January 1943 before returning with him to the Northern Territory and they served together at Melville Bay. Mrs Prestegar could not recall the name of the friend when asked that question in cross-examination. At one point, she suggested it was Ian Devine, but then said she was mixed up. When Mrs Prestegar was asked why she said Mr Farley-Smith was a Don R, she explained that her husband wrote to her and told her he was and that he had another mate to ride with. Subsequently, she said there were several friends that would ride with her husband and she didn’t know who they were.
266. We asked Mrs Prestegar whether her husband ever mentioned cleaning guns. She said: No. She was asked whether any mention was made about the quantities of petrol used to clean motorbikes or machinery or how often that would occur and she answered: No. She said that all she knew was that her husband used to siphon petrol out and put it back in his motorbike. She had no idea as to the degree of exposure he had to petrol.
267. In fact, the service records of Mr Prestegar and Mr Farley-Smith indicate that they were not in the same LAA Bty. Mr Prestegar served with 159 Battery while Mr Farley-Smith served with 160. Mrs Prestegar was aware of this because in a letter dated 5 February 2004 written to Mrs Farley-Smith, she referred to the battery Mr Farley-Smith was with and the fact that he was having trouble qualifying for the Darwin medal. Furthermore, in the course of her cross-examination, Mrs Prestegar said she met Mrs Farley-Smith with her husband at a reunion. When she was told that Mrs Farley-Smith’s evidence was that they met by chance on a train and got to talking her answer was: Yes, that’s correct. It was then put to her that it wasn’t at the reunion but rather a chance meeting on the train and she said: That’s right. From the evidence given in Mrs Prestegar's claim for the pension following her husband’s death, it was undisputed that Mr Prestegar died in 1992. That being the case, as Ms Macdonnell submitted, there was no possibility that Mrs Prestegar could have asked her husband about Mr Farley-Smith. We found Mrs Prestegar's evidence to be wholly unreliable.
268. Mr Morgan, who conducted research on behalf of Writeway, served in the Australian Regular Army between 1967 and 1999. He had operational service in Vietnam. Although he said under cross-examination that he had never been with an artillery battery, he agreed that those weapons would require regular testing, firing and cleaning. He said that in his experience, every time a rifle was fired it was required to be cleaned and he assumed the same to apply to an artillery gun.
269. He also explained that his researches disclosed that the Bofors guns were required to undergo maintenance by a member of the Australian Electrical and Mechanical Engineers as well. In his view, daily maintenance would have been carried out by the gun crew after each time they fired it. Then there was the additional maintenance provided by an expert, the same as would occur in an infantry unit where the rifle was, every now and again, passed to an armourer who inspected it and carried out higher level maintenance. Mr Morgan was asked if he made any enquiry about whether petrol was used for cleaning the Bofors guns. He replied he did not. He was asked whether he knew if petrol was used to clean weapons in Vietnam. He said: Not to my recollection. In fact, when subsequently asked whether he had seen petrol being used as a cleaning agent for weapons and for other things, he said:
In my experience, when I was cleaning weapons as a soldier, we used oil. We were issued a cleaning kit and that cleaning kit contained a small plastic container which contained gun oil, which we used to clean our weapons with. I cannot recall using petrol or kerosene to clean my weapons: In fact, I'm pretty sure it would have been frowned upon. And cleaning our hands afterwards, while we were in Australia, we used soap and water, and in fact, soap wasn’t always effective, so I remember we had a product that was called Solvol.
The only time Mr Morgan heard of clothes being washed in petrol was during the siege of Tobruk during WW II.
270. Mr Morgan's researches uncovered a maintenance schedule for Bofors guns set out in a security memorandum dated 5 March 1944. It was signed by Lt J R Donnell, Administering Command of 160 LAA Bty. That maintenance schedule sets out specific days of the week on which each gun belonging to 160 LAA Bty was to undergo maintenance. The schedule indicates that each gun was to undergo maintenance in a specified two hour period on one particular day of the week. No two guns were to be out of action simultaneously. Mr Morgan said that there was another document he uncovered which indicated that detachment commanders were reminded it was their responsibility to go over to pick up the tradesmen from the workshop and take them to the gun site, in order to carry out the maintenance. In other words, this was not merely a cleaning of the weapon but regular scheduled maintenance.
271. Mr Robert Piper, also a researcher for Writeway, provided to the Tribunal an extract from the Manual and Gun Drill For 40mm A.A. Gun and Predictor A.A. No 3 (Land Service Aust) 1944. This was obtained from the Australian War Memorial Library. It is of some interest that in Chapter V, dealing with care and maintenance of the gun and carriage, it states:
No 3. (i) The mechanism must not be stripped more than is necessary to ensure absolute cleanliness and lubrication.
It should not be necessary completely to take out the auto-loader for these purposes. Sliding it to the rear about 15 inches is normally sufficient.
(ii) Oil only should be used for cleaning the bright parts. The use of abrasives, such as metal polish, brick dust, emery cloth etc is not permitted.
272. Under the general precaution section, it also states that inspections are to be made frequently and particularly after days on which firing has occurred. Those inspections include visual inspection of the breech mechanism and of the bore for coppering and flattening of the bands. It also states that care must be taken to ensure that all working parts of the various mechanisms are kept free from dirt and rust, and that they are thoroughly cleaned and oiled periodically.
273. Under the section dealing with lubricants, the instructions state that only certain lubricants are to be used. The relevant ones are as follows:
Oil M.80 . . ..
Bore cleaning bright parts of gun and mounting for general purposes of lubrication.
Oil, Kerosene, Grade 2 White Lubricant, Special
Cleaning the clogged oil off gears. Auto-loader and breech mechanism.
The instructions also point out matters which must be attended to after firing the gun. They are:
(i)As soon as the situation permits, barrels must be scrubbed out with fresh hot water and the piasaba brush. Soda in any form must not be used.
(ii)After cleaning, the bore must be dried by means of clean rag wrapped around the brush. When cool the bore should be lightly oiled.
(iii)Barrels may continue to sweat for some days. The breech mechanism should be removed, thoroughly cleaned and lubricated. The auto-loader should be examined, cleaned and, if necessary lubricated.
(iv)Any water on the gun or mounting should be mopped up.
274. The manual expressly prohibited the use of petrol or kerosene as a buffer.
275. There was no direct evidence before us of Mr Farley-Smith being exposed to petrol containing benzene in the course of his operational service in the Darwin area. It seems that Mrs Farley-Smith has proceeded on the basis that those veterans who served in light anti-aircraft batteries in the Darwin area at the same time as Mr Farley-Smith were exposed to petrol because it was used for cleaning machinery in general, particularly where there was an accumulation of oil or grease, and therefore so was Mr Farley-Smith. The problem is that those veterans, who gave evidence about the use of petrol for cleaning, were associated with machinery such as motorcycles or trucks. We have no hesitation at all in accepting that petrol was used to clean those items of machinery. Where we have a problem is the use of petrol to clean Bofors guns.
276. Only two veterans who were interviewed by Mr Pearson remembered using petrol to clean guns sometimes. Mr Wisbey was perhaps the most outspoken witness about the use of petrol to clean the Bofors guns. However, his evidence was not particularly reliable. The fact is, although he described himself as a spotter and, from that description, conveyed the impression that he was a member of the crew directly involved with the operation of the gun, the evidence disclosed otherwise. In fact, his primary role was as a driver attached to the gun. In that capacity, we have no doubt Mr Wisbey used petrol to clean engine parts and the like.
277. However, his evidence about the constant cleaning of the Bofors guns with a mixture of oil, kerosene and petrol must be seriously doubted in light of the extract from the gun manual relating to the care and maintenance of the Bofors guns. Quite plainly, the operative parts of the gun (that is those metal parts which are required to slide against other metal components and thus can be described as bright parts) were only to be cleaned with oil.
278. We also accept Mr Morgan's evidence about the cleaning of light weapons. This is because a Member of the Tribunal has experience with military weapons including the twin-barrel 30mm Aden gun installed in the RAAF Mirage III aircraft. The application of petrol to any bright metal parts would cause leaching of the oil from that metal, resulting in very rapid development of surface rust. Automatic large calibre weapons, which become very heated in the course of continuous operation, would rapidly seize if the metal were permitted to achieve a leached state.
279. Nevertheless, having said all of the above about the use of petrol for the purpose of cleaning the Bofors gun, we have evidence before us which we accept, and which suggests that petrol was used to clean other machinery in that environment. In those circumstances, we cannot say, beyond reasonable doubt, that Mr Farley-Smith was never exposed to any benzene in the course of his operational service in the Darwin area. In fact, we find that he was. However, we do not accept that it was more than the occasional exposure to fumes in an open environment or the occasional dermal contact with petrol.
280. In our opinion, that does not lead to the conclusion that, assuming there is a reasonable hypothesis in this case, we must find Mr Farley-Smith’s MF was war-caused through contact with benzene in petrol. That is because all of the scientific literature dealing with the effects of benzene exposure on the human body only disclose serious health risks where concentrations of benzene were high; the persons involved were continuously exposed for lengthy periods; and the disease was acquired within a particular latency period following cessation of exposure to benzene.
281. As Professor Peach said in his evidence, the studies regarding exposure to benzene involved high concentrations, between 200 and 600 parts per million; and exposure was continuous for periods between 4 and 23 years in factories, or by cleaning machines or machine parts for between 16 and 26 years. According to Professor Peach, a concentration of 120 parts per million is required to cause chromosomal aberrations. Exposure to 50 parts per million is required to produce a toxic effect on bone marrow. Furthermore, as Professors Peach and Fox pointed out, there were no reported cases of MF with a latency period anything like that of Mr Farley-Smith. Professor Fox was of the view that the mean latency period between exposure and diagnosis of leukaemia was around 10 years. Professor Peach said that even the case reports referred to in this matter disclose a latency period of between eight and 13 years of ceasing to be exposed to chemicals. He was aware of one case where the latency period was 17 years following cessation of exposure. That is nothing like the 50 year latency period which would apply to Mr Farley-Smith.
282. We also had evidence from Mr Noel Tresider, an industrial chemist and chemical engineer. His current occupation is as an occupational hygienist. He said that the content of benzene used to manufacture gasoline (petrol) during WW II could only be estimated. He said: Straight run gasoline, which is a major component in petrol, had benzene content between 0% and 7%. The other major component, catalytically cracked gasoline, had an estimated benzene component of 1.5% to 2%. He estimated that the benzene content of petrol used by allied forces in the South West Pacific from about 1942 to 1947 was between 2% to 4% by volume. As for aviation gasoline, which was also readily available in the Darwin area, he estimated the benzene content to be between 0% and 5% by volume. Mr Tresider also testified that fuel oils, lubricating oils and greases, the substances prescribed for use on artillery guns, contained no benzene.
283. Mr Tresider explained the techniques used for measuring exposure to benzene in the air in a work environment. It involved the use of direct reading instruments, which measure benzene in parts per million at any particular instance, and the use of sampling devices worn by persons. Knowing the duration of exposure and the amount of benzene captured from the devices worn by persons, it was possible to make an estimate of the parts per million to which a person had been exposed.
284. In cross- examination, Mr Tresider was asked if he knew what a safe level of exposure to benzene might be. Mr Tresider responded by stating that the approach hygienists take is to say there is a level to which nearly all workers can be exposed over a working lifetime. He said that when looking at exposure, hygienists would look either at short-term exposure, which would be 15 minutes, or an eight hour exposure if that was being monitored. Mr Tresider said that the occupational exposure standard was 0.5 parts per million, which is the level hygienists consider nearly all workers can be exposed to over a working lifetime. This was in accordance with Professor Peach's evidence.
285. Mr Tresider was asked how he would calculate cumulative exposure, over the period of a day, consisting of exposure to benzene of half an hour in the morning and half an hour in the evening. Mr Tresider said he would use an eight hour, time-weighted average. He would take the half hour at the start, make an estimate of what the exposure was until the half hour at the end of the day, and pull the lot together to come to an eight hour average. Mr Tresider said that such incidental exposure included people splashing rags in benzene, and that he had actually measured people doing that kind of task.
286. Mr Tresider was also asked about how the level of exposure would vary if the exposure was not in an enclosed environment, such as that commonly measured in the factory situation, but rather in an open air environment such as that which was said to have occurred in Mr Farley-Smith's case. Mr Tresider offered a hypothetical situation. He said that if a worker was exposed to petrol by filling drums in an enclosed area, doing that task all day, he would expect that person's exposure to be between 2 and 5 parts per million. However, if he was doing it outside, he would expect it to be less than 1 part per million. He said that was based on his experience with aviation gasoline refuelers working outside, refuelling with Avgas containing benzene. He said in that environment, he did not get any levels of benzene exposure.
287. Mr Tresider also distinguished between environmental exposure and industrial exposure. He said that occupational exposure and environmental exposure were two different sciences and the approaches were different. He said that while in the occupational situation hygienists talked in terms of parts per million, with regard to environmental exposure, the measurements are in parts per billion. In other words, exposure from the environmental background is significantly different to occupational exposure.
288. Utilising Mr Tresider's estimate of exposure of a person filling petrol drums all day in an open air environment, Ms Macdonnell submitted that if a person in that environment was exposed to benzene for two periods of 30 minutes over an eight hour day, the weighted average exposure would be less than 1 part per million divided by eight or, if there were two exposures of 15 minutes, less than 1 part per million divided by 16. Assuming the exposure was 1 part per million, that would result in exposures of 0.125 parts per million and 0.0625 parts per million respectively. That level of exposure is significantly below the occupational standard of 0.5 parts per million.
289. As we have said, we cannot find beyond reasonable doubt that Mr Farley-Smith was not exposed to benzene in the course of his operational service in Darwin. However, we are satisfied beyond reasonable doubt that Mr Farley-Smith's exposure to benzene in the course of his operational service in Darwin did not exceed 0.5 parts per million over the 13 month period when he was a member of the gun crew in 160 LAA Bty. We accept that he may have had incidental exposure to petrol through its common use in cleaning machinery. This is even though we find that Mr Farley-Smith was not a motorcycle despatch rider nor was he a truck driver.
290. While the evidence against the use of petrol to clean the Bofors gun is strong, it is not sufficient for us to find beyond reasonable doubt that petrol was never used. That is because, although the firing mechanism of the Bofors gun was most probably cleaned with oil rather than petrol, the gun is mounted on a tripod and capable of being towed by a truck. The additional moving components (wheels and bearings) to enable this to take place would undoubtedly have been greased and could have been cleaned with petrol. Nevertheless, we are satisfied beyond reasonable doubt that Mr Farley-Smith did not have exposure to benzene in concentrations exceeding the level of .5 parts per million during the 13 month operational period when he was in fact manning the Bofors gun.
291. There is also a serious problem with the duration of any exposure Mr Farley-Smith had to benzene. At most, it was a 13 month period. This is of course nothing like the periods of exposure of those persons in the case reports or cohort studies relied on by Mrs Farley-Smith. It follows we must find that the period during which Mr Farley-Smith may have been exposed to benzene was, beyond reasonable doubt, insufficient to cause the development of any benzene-related diseases.
292. The third fact which is inconsistent with a reasonable hypothesis is that Mr Farley-Smith's diagnosis occurred some 50 years following cessation of his exposure to benzene. Not one of the cohort studies or case reports discloses any relationship between benzene and a blood disease which has developed following that latency period.
293. Therefore, even if Mrs Farley-Smith had raised a reasonable hypothesis linking her husband's MF to benzene exposure during his operational service, we are satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that his MF and subsequent death was war-caused because the facts in Mr Farley-Smith's case, necessary to support the hypothesis, do not exist. Mr Farley-Smith's level and duration of exposure to benzene was insufficient to satisfy the concentrations required, on current scientific knowledge, to attribute any disease to this exposure.
CONCLUSION
294. For the reasons we have set out above, we have found that the kind of death met by Mr Farley-Smith was PMF. He did not acquire a myelodysplastic disorder or chronic myeloid leukaemia prior to being diagnosed with MF. We have also found that Mr Farley-Smith’s PMF was not causally connected to his army service. That is because the scientific medical research literature and the expert evidence do not establish a causative link between exposure to benzene and PMF. Therefore, Mrs Farley-Smith has failed to raise a reasonable hypothesis of connection between her husband’s operational service and his death.
295. Even if we are wrong about Mrs Farley-Smith’s hypothesis, we have nevertheless found, beyond reasonable doubt, that the facts necessary to support the hypothesis do not exist.
296. Accordingly, we find that the decision made by the VRB on 5 May 2003 disallowing Mrs Farley-Smith’s claim was correct. We affirm that decision.
I certify that the two hundred and ninety six [296] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Senior Member
Miss E A Shanahan, MemberSigned: ...........(sgd) Elise Montalto...............
Elise Montalto, Associate
Date/s of Hearing 15, 16, 19 June 2009
21, 22, 23 September 2009
7, 8, 9, 14 April 2010
Date of Decision 25 August 2010
Counsel for the Applicant Mr D. De Marchi
Solicitor for the Applicant De Marchi and Associates
Counsel for the Respondent Ms J. Macdonnell
Solicitor for the Respondent Ms C. Madden, Australian Government Solicitor
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