Gittins v Repatriation Commission
[2007] FMCA 167
•21 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GITTINS v REPATRIATION COMMISSION | [2007] FMCA 167 |
| ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – war widow’s pension – whether hypothesis connecting veteran's death with war service reasonable – whether Tribunal erred in finding no reasonable hypothesis existed – appeal dismissed. |
| Veteran Entitlement’s Act 1986, ss.6, 7(1)(a), 8(1)(a), 8(1)(b), 8(1)(e), 8(5), 13(1), 120(1), 120(3), 120(4), 120A |
| Bushell v Repatriation Commission (1992) 175 CLR 408 Repatriation Commission v Bey (1997) 79 FCR 364 Repatriation Commission v Byrnes (1993) 177 CLR 564 Repatriation Commission v Deledio (1998) 83 FCR 82 Repatriation Commission v Hancock [2003] FCA 711 Repatriation Commission v Hill (2002) 69 ALD 581 Repatriation Commision v Law (1980) 31 ALR 140 |
| Applicant: | PATRICIA ANN GITTINS |
| Respondent: | REPATRIATION COMMISSION |
| File Number: | MLG 960 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 7 December 2006 |
| Date of Last Submission: | 7 December 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 21 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr De Marchi |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Ms McMahon |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The appeal is dismissed with costs, including reserved costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 960 of 2006
| PATRICIA ANN GITTINS |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
Background
This is an appeal from a decision made on 25 May 2006 by the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of the Veteran’s Review Board which had in turn affirmed a decision of the respondent refusing the applicant a war widow’s pension.
The applicant’s husband, the veteran, died on 25 July 1997 from a low grade non-Hodgkin’s lymphoma. The veteran served in the Australian army from 14 July 1949 until 2 December 1971. He had operational service in Japan from 9 July 1953 until 24 July 1955. The veteran was a clerk in a construction regiment.
The Tribunal accepted that the veteran had a traumatic childhood in that his father, step-mother and half-brother were killed by the Japanese in the invasion of Singapore in 1942 and the veteran had been required to identify the bodies. He was 14 years old at the time. The veteran then apparently escaped to Indonesia and later joined the Indian army at the age of 17 after falsifying his age. The veteran also served in Burma with the British army. The veteran had visited Hiroshima some eight to ten years after the atomic bomb was dropped there.
The veteran spent two periods in British Commonwealth Hospital in Japan during his period of operational service. The first was for 13 days in 1954 for seborrheic dermatitis. The second was for 14 days in 1955 for an upper respiratory tract infection and hookworm.
The veteran was seen by doctors on two or three occasions in 1957 and 1959, after the period of his operational service, and was hospitalised from 1 May 1959 to 5 May 1959 and from 25 May 1959 until 29 May 1959.
It was argued that the veteran had a phobia of doctors and hospitals as a result of his experiences in hospital during his operational service in 1954 and 1955. The Tribunal accepted that the veteran had a phobia but considered that the causes of the phobia and the connection to the veteran’s operational service were questionable.
The veteran and the applicant met in 1959 and married in 1960. They had a son and a daughter. The son committed suicide in 2003 after a long history of drug abuse. Both the children had been seen by psychiatrists during their teenage years.
The applicant described her husband as having been rigid in his requirements of household cleanliness and routine household functioning. She said that he had major variations in mood from depression to elation and refused to confide in her or the children. The Tribunal considered that the veteran appeared to have two personas, saying that:
At home, he was moody, non-communicative and dictatorial. In contrast, his work as a teacher at Brighton Grammar, after discharge from the Australian army in 1971, was exemplary and he was a very effective and highly regarded member of the teaching staff.
In 1976, the headmaster of Brighton Grammar had insisted that the veteran seek medical advice about a mass on the left side of the veteran’s neck. A surgeon diagnosed the mass as a branchial cyst and advised that the matter be reviewed. Mr Gittins refused to have the matter reviewed.
In April 1997, the veteran developed lethargy. On 10 July 1997, he was admitted to hospital having lost three stone in three months. Non-Hodgkin’s lymphoma was soon diagnosed and chemotherapy commenced on 17 July 1997. The hospital admission notes record that the veteran had a phobia of medical treatment and hospitalisation. The phobia was said to be due to a loss of control and the possible need for sedation. Numerous lumps were described in the notes as progressive lymphadenopathy over a period of months and the past history of a left branchial cyst was noted. The veteran died on 25 July 1997.
Legislation
Section 13 of the Veteran’s Entitlement Act 1986 (“the Act”) is as follows:
(1) Where:
(a)the death of a veteran was war‑caused; or
(b)a veteran is incapacitated from a war‑caused injury or a war‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran – pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran – pension by way of compensation to the veteran;
in accordance with this Act.
Sub-sections 8(1) and (5) of the Act are as follows:
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war‑caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e) the injury or disease from which the veteran died:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
…
(5)Paragraph (1)(e) does not apply to the death of a veteran from an injury or disease, being injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran, unless the veteran has rendered operational service or the period of the eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.
Section 7(1)(a) of the Act provides that:
(1) Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;
The applicant argued that the veteran’s death was connected to his operational service. It was common ground that the veteran rendered operational service between 9 July 1953 and 24 July 1955.
Sub-sections 120(1), 120(3) and 120(4) of the Act provide as follows:
(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.
…
(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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
Section 120A of the Act provides that:
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
Section 196B(2) of the Act provides that:
If the [Repatriation Medical] Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; …
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury disease or death of that kind with the circumstances of that service.
The appropriate steps
The Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 to 98 set out the four step process which the Tribunal is required to undertake in considering matters such as the present. Those four steps are as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
However, in Repatriation Commission v Hancock [2003] FCA 711 at [8], Selway J noted that “kind of death” means “medical cause of death” and then went on to observe at [9] that:
…there is necessarily at least two extra steps before step one of the Deledio methodology. The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation, on balance of probabilities. In this case those pre-conditions were that Mr Hancock was a veteran, that the respondent was his widow and that Mr Hancock had died. Secondly, in order to ascertain whether a SoP applies it is necessary to identify the `kind of injury' or the `kind of death' suffered by the veteran: see s 120A(2) and (4) of the Act. With most injuries and probably even most diseases this will usually be obvious enough (which is probably why the step was not mentioned in Deledio). But in cases such as the present, the identification of the `kind of death' is the critical step in the analysis.
Selway J went on at [11] to state the correct approach as follows:
(a) First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.
(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.
(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those `kinds of death'.
(d) If only a determination under s 180A(2) is applicable, then the application must fail.
(e) If no SoP and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that.
The role of the SoP
In Repatriation Commission v Hill (2002) 69 ALD 581 Black CJ, Drummond and Kenny JJ explained the consequences of there being a SoP applicable to a particular kind of death, or in that case, disease. Their Honours said at [55] and [57]:
55. Where s120A(3) of the Act applies to a claim and there is a relevant SoP in force, whether or not an element is essential to a hypothesis will depend upon the terms of the SoP. As GoldbergJ said in Repatriation Commission v McKenna (1998) 52 ALD 72 at 80:
For the purposes of s120A(3) of the Act the hypothesis which has to be upheld by the Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles. ... .
On appeal, the Full Court approved these propositions: see McKenna v Repatriation Commission (1999) 86 FCR 144 at
150-1. Put another way, a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: see Deledio v Repatriation Commission at 274-275, Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 per Weinberg J, and Connors v Repatriation Commission (2000) 59 ALD 61 at 68-70.57. Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out "the factors that must as a minimum exist" and "which of those factors must be related to service". The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.
The Tribunal’s decision
In the present case, the Tribunal accepted that the necessary preconditions, other than causation, applied. That is, the Tribunal accepted that the applicant’s husband was a veteran, that he had died and that the applicant was his widow.
The Tribunal found at paragraph 69 of its reasons for decision that:
There is no doubt that Mr Gittins died from non-Hodgkin’s lymphoma on 25 July 1997 ….
That was a finding as to “the kind of death” or the medical cause of the death of the veteran.
The Tribunal then considered the first step set out in Deledio. The Tribunal found at [70] that the material before it pointed to the two hypotheses raised by the applicant and outlined at [61]. The first hypothesis identified by the Tribunal was that the veteran’s inability to obtain appropriate medical treatment was war-caused as described in clause 5(j) of the Statement of Principles (“SoP”) dealing with non-Hodgkins lymphoma. The second hypothesis identified by the Tribunal was that the veteran:
… as a result of his hospitalisation in the British Commonwealth Hospital in 1954 and 1955, developed a phobia relating to hospitals and the medical profession; and this phobia resulted in his delay in seeking medical treatment until his condition was life threatening and shortly thereafter resulted in his death in 1997.
The Tribunal then took step two as described in Deledio in relation to the first hypothesis and ascertained whether there was in force a relevant SoP. The Tribunal found that there was a relevant SoP which concerned non-Hodgkin’s lymphoma, being SoP 37 of 2003. That SoP provided in clause 4:
Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Clause 5 of the SoP set out a number of factors, the relevant one for present purposes being (j). The relevant part of clause 5 is as follows:
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting non-Hodgkin’s lymphoma or death from non-Hodgkin’s lymphoma with the circumstances of a person’s relevant service are:
…
(j)inability to obtain appropriate clinical management for non-Hodgkin’s lymphoma.
Clause 6 of the SoP provided that:
Paragraph 5(j) applies only to material contribution to, or aggravation of, non-Hodgkin’s lymphoma, where the person’s non-Hodgkin’s lymphoma was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
The Tribunal then took step three of Deledio and found that the first hypothesis was not consistent with the template provided in the SoP because there was no evidence before the Tribunal that the veteran had contracted non-Hodgkin’s lymphoma before his operational service. Clause 6 of the SoP actually refers to the lymphoma being contracted “before or during” the person’s relevant service. It may be taken that the Tribunal also meant that there was no evidence that the veteran’s lymphoma was contracted during his operational service. The veteran’s operational service was from 9 July 1953 until 24 July 1955. He died of non-Hodgkin’s lymphoma on 25 July 1997, some 42 years later. As the first hypothesis did not fit the template, the claim, to the extent that it was based on that hypothesis, necessarily failed.
The Tribunal then considered the second hypothesis. The Tribunal in applying step two of Deledio in relation to the second hypothesis noted that there was no SoP regarding phobia. However, the Tribunal then noted that the absence of a relevant SoP did not preclude the Tribunal from considering the hypothesis, notwithstanding Deledio. The Tribunal relied on the High Court decisions in Bushell v Repatriation Commission (1992) 175 CLR 408 and Repatriation Commission v Byrnes (1993) 177 CLR 564, as well as the decision of the Full Court of the Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 at 366.
The Tribunal set out the four steps enunciated by the Full Federal Court in Bey as follows:
The method of applying s 120(1) and (3) is now well established:
1. One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
2. The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the "raised facts") and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.
3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Sub-section (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
The Tribunal, summarising Byrnes, said that it must find in favour of the claim:
… unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or … the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt.
The Tribunal found at paragraph 80 of its reasons for decision:
There is no doubt that Mr Gittins suffered from a phobia. … The cause of this phobia and its relation to his operational service is questionable.
At paragraph 85 of its reasons for decision, the Tribunal said:
There is no evidence to substantiate a claim that Mr Gittins' hospital experiences in 1954 and 1955 caused his phobia. Nor can the claim be categorically refuted. There is merely insufficient evidence.
The Tribunal concluded, at paragraph 90 of its reasons for decision, that:
Neither question, as posed by Byrnes, can be definitively answered. The evidence is such that the Tribunal finds that the second hypothesis is, in terms of East as approved by Bushell, too tenuous and too remote to be reasonable.
The applicant’s grounds
The applicant expanded on the grounds briefly set out in her notice of appeal in a document entitled “Supplementary Notice of Appeal”. The grounds set out in that notice are as follows:
4. GROUNDS
4.1 The Tribunal was wrong in law in the Application of s.120 and s.120A of the Act.
4.1.1 The Tribunal was required to consider all of the material pursuant to s.120(3) in order to ascertain whether it raised a hypothesis of connection between the late veteran’s service and the cause of death.
4.1.2 The Tribunal’s failure to consider all of the material was wrong and offended the first step requirement of s.120(3).
4.1.3 The Tribunal’s failure to examine and consider all of the material also offending (sic) the requirement set by the court in Deledio.
4.1.4 The Tribunal failed to apply the requirements of s.120A(3) of the Act. In doing so the Tribunal erred in the systematology to be adopted when a SoP was to be applied.
4.1.5 The Tribunal failed to apply correctly S.120(1) of the Act. It misunderstood the connection required and the standard of proof to be satisfied in cases of operational service.
4.2 The Tribunal was wrong in law in the application of the steps required in Repatriation Commission v Deledio.
4.2.1 Deledio required the Tribunal to address a preliminary step of considering all of the material to see if a hypothesis of connection had been made. This the Tribunal did and found that there was a hypothesis of connection. The Tribunal also identified pursuant to step 2, the relevant SoP. However, the Tribunal erred in step 3 of Deledio because it failed to appreciate that the connection between the hypothesis and the SoP was still only required to be one of a reasonable hypothesis. The Tribunal instead proceeded to fact finding at this step an impermissible procedure.
4.2.2 The Tribunal as a result did not progress to step 4 Deledio in relation to the hypothesis which linked the death with the SoP.
4.3 The Tribunal was wrong in law in the methodology it adopted in determining the hypothesis of connection to service when there was no requirement to apply a SoP.
4.3.1 Insufficient evidence was not the test to be applied in deciding whether there was a reasonable hypothesis. The Tribunal confused itself in how to deal with a situation where a hypothesis existed but the Tribunal determined that it was a weak hypothesis.
4.3.2 The Tribunal erroneously and impermissibly transported doubts from one part of the hypothesis to another.
4.3.3 Having found that there was a reasonable hypothesis the Tribunal was required to determine whether the factual base of the hypothesis had been dispelled beyond reasonable doubt. Instead, it erroneously reverted to reconsidering the hypothesis and retraced its steps to conclude the hypothesis was too tenuous.
4.4 The Tribunal was wrong in law by failing to accord to the Applicant Procedural fairness.
4.4.1 The Tribunal, at the conclusion of the hearing proceeded to request further investigations from the Respondent. The Tribunal failed to keep the Applicant fully informed of those investigations and the conclusions it had reached and failed to give the applicant a full hearing on these points.
4.5 The Tribunal was wrong in law in failing to provide full and adequate reasons to the applicant for its decision.
4.6 The Tribunal had a duty by Statue (sic) and Common Law to provide to the Applicant all the principal reasons for rejecting the application this it failed to do.
The applicant’s written submissions
The applicant’s written submissions indicated that ground 4.6 was incorporated in ground 4.5. The applicant’s written submissions on the grounds of appeal were as follows:
3.1 Grounds 4.1: The Tribunal was wrong in law in the Application of S120 and S120A of the Act.
3.1.1The late veteran died of long-standing (21 years) low grade non - Hodgkin’s Lymphoma AB 38. The applicant contended that the late veteran developed a phobia or fear of medical and hospital treatment and had failed to receive proper treatment for his condition because of a war service induced fear of doctors while hospitalized in Japan. This phobia was confirmed by an eminent psychiatrist, Dr Strauss, and accepted by the Tribunal as having been recorded independently in the records held by the Monash Medical Centre. AB 132, para 11, and AB 136, para 121. AB 137 para24.
3.1.2Dr Strauss provided a report AB 107 in the report he opined that there was a reasonable hypothesis to connect the late veteran’s service in Japan and his fear of doctors and hospital treatment, at AB 116. He also maintained his opinion that the late veteran’s service in Japan had had an effect on him during his viva voce evidence. AB 85.
3.1.3On the material before it, the Tribunal should have found that the phobia was war-caused. Instead it found that the material did not raise a reasonable hypothesis of connection. The AAT regarded the hypothesis as: “too tenuous and too remote to be reasonable.” AB 157 Para 90.
3.1.4 However, the Tribunal in the process of its examination failed to realize that it was required pursuant to s. 120(3), to examine all of the material that supported the hypothesis. Having found that there was such material, the Tribunal failed the next test. This required it to examine the material that it regarded as conflicting with the hypothesis and whether it did so beyond any reasonable doubt S120 (1). Or whether there was other material that beyond any reasonable doubt undermined the foundation of the hypothesis.
3.1.5 At AB 155 Para 79, the Tribunal posed itself the question that it had to answer. In doing so however, it reverses the beneficial nature of s120 (1) by acknowledging that neither questions could be definitely answered, as required in Byrnes. Namely, that the facts necessary to support the hypothesis were disproved beyond reasonable doubt, or that the truth of another fact inconsistent with the hypothesis was proved beyond reasonable doubt to exist. With these findings, the Tribunal was required by law to determine that the claim had to succeed. Instead it returned to step two in Bey failing to realize that it was now engaged in step three of Bey. At AB 154 Paras 77 and 78 the Tribunal returned to examine whether the hypothesis was reasonable something it had already done at AB 154 Para 77 above.
3.1.6 Inconsistently with Para 77 at AB 157 Para 90 it now found the Hypothesis too tenuous and too remote.
3.1.7 These errors in the procedural steps of the Tribunal amounted to a fundamental error which affected the rights of the Applicant under beneficial legislation.
3.1.8The Tribunal also appears to misunderstand the distinction between the requirements of S.120A(3) and S120A(4). It was only in the case of 120A(3), that the Statement of Principle and the decision of Repatriation Commission and Deledio were to be applied.
3.2Ground 4.2. The Tribunal was wrong in law in the application of the steps required in Repatriation Commission v Deledio.
3.2.1 Deledio required the Tribunal to address a preliminary step of considering all of the material to see if a hypothesis of connection had been made. This the Tribunal did and found that there was a hypothesis of connection. AB 154 at Para 77. The Tribunal also identified pursuant to step 2, the relevant SoP. AB 152 Para 71, Instrument 37 of 2003. However, the Tribunal erred in step 3 of Deledio because it failed to appreciate that the connection between the hypothesis and the SoP was still only required to be one of the degree of a reasonable hypothesis.
3.2.2 The Tribunal instead proceeded to fact finding at this step an impermissible process at step 3 of Deledio. The Tribunal therefore entered the fact finding stage at the wrong step, a process reserved to be carried out in step 4 of Deledio. All of the material examined by the Tribunal in this step had to be approached with the caution of simply examining it to see whether a reasonable hypothesis had been raised. The Tribunal as a result did not progress to step 4 in Deledio in relation to the hypothesis which linked the death by reference to the relevant SoP. It conflated the test of steps 3 and step 4 in Deledio in a manner unfavourable to the applicant.
3.2.3 The Tribunal simply never applied the steps of Deledio to the argument raised at AB 150 Para 62 that Paragraph 5 of SoP 37 of 2003 applied in cases where, like the present, there was material contribution to the Non-Hodgkin’s Lymphoma by the inability to obtain appropriate clinical management of the phobia, associated with service. At AB 153 the Tribunal said that as there was no evidence that the late Veteran had contracted NHL before operational service and the hypothesis was not consistent with the SoP. That may have been the case but it was not the procedure to be followed.
3.3 Ground 4 The Tribunal was wrong in law in the methodology it adopted in determining the hypothesis of connection to service when there was no requirement to apply a SoP.
3.3.1 In relation to the methodology it had to adopt in determining the hypothesis of connection to service when there was no requirement to apply a SoP, the Tribunal adopted a test of questionable connection AB 154 Para79. Questionable connection was not an appropriate test to be applied in deciding whether there was a reasonable hypothesis. The Tribunal confused itself in how to deal with a situation where a hypothesis existed but the Tribunal regarding it as being a weak hypothesis. It is submitted that the Tribunal dealt with this inconsistency by rejecting the basis of the hypothesis on the balance of probabilities and not beyond reasonable doubt as it should have.
3.3.2 The Tribunal erroneously and impermissibly appears to transport doubts from one part of the hypothesis, to another. It did this in a manner that allowed doubts to be stacked up in one part of the hypothesis to be brought forward to cast doubt on another part. The end result being an impermissible impeachment of the overall hypothesis.
3.3.3 Having found that there was a reasonable hypothesis the Tribunal was required to determine whether the factual base of the hypothesis had been dispelled beyond reasonable doubt. Instead, it erroneously reverted to reconsidering the hypothesis and retraced its steps to conclude that the hypothesis was too tenuous.
3.3.4 Although the Tribunal was aware that it had to apply the law as propounded in Bushell and Byrne, AB 149 Para 59 It did not apply those decisions correctly.
3.3.5 It did not for example comment on the warning made by the Court in Bushell that the case would be rare where the hypothesis based on the raised facts is unreasonable when put forward by a medical practitioner eminent in his field.
3.4 Ground 4.4 The Tribunal was wrong in law by failing to accord to the Applicant Procedural fairness.
3.4.1 The Tribunal, at the conclusion of the hearing proceeded to request further investigations from the Respondent. The Tribunal failed to keep the Applicant fully informed of those investigations and the conclusions it had reached and failed to communicate these conclusions to the applicant thereby not giving the applicant a full hearing on these points.
3.4.2 The tribunal also in its decision makes reference to the condition of hook worm infestation being contracted in Northern India or Burma.
“On the Tribunal’s member’s knowledge of this condition” AB 156 Para 84. But this was not communicated to the Applicant during the hearing who may have been able to adduce evidence that the condition may have occurred while on Operational Service.
3.4.3 The Tribunal does not provide any reasons as to why it rejected the Applicant’s submission that in cases of material contribution to a disease in clause 5(j) of the SoP the disease did not have to be contracted before service.
3.5 Ground 4.5 The Tribunal was wrong in law in failing to provide full and adequate reasons to the Applicant for its decision.
3.5.1 The Tribunal had a duty by Statue (sic) and Common Law to provide to the Applicant all the principal reasons for rejecting the application this it failed to do.
3.5.2s43 (2B) of the Administrative Appeals Tribunal Act 1975 provides that where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
3.5.3 It is impossible for the Applicant to determine why her application failed. The material questions of fact are confused by the wrong methodology adopted by the Tribunal.
3.5.4 For example at AB 156 Para 87. The Tribunal seems to infer that the Veteran did not suffer from a phobia of doctors but does not make that finding. Similarly at Para 85. Noting that Dr. Strauss’ medical history had been provided by the applicant. How else could the case proceed when the claim was for a widow’s pension?
3.5.5 The conclusion at Para 90 does not follow without some definite fact finding on questions of fact which the Tribunal does not elucidate in its decision.
3.5.6 The Tribunal at best alludes to the standard of proof it is adopting in the case but it is difficult from reading the decision to determine at each point which standard is adopted. Clearly the Beyond Reasonable doubt standard is not applied.
The respondent’s written submissions on the grounds of appeal were as follows:
Questions of Law & Grounds of Appeal
Grounds 4.1 and 4.3
[29] The Applicant submits the AAT made an error of law in its consideration of the Applicant’s second hypothesis that the veteran developed a phobia or fear of medical treatment because of his experience in Japan during operational service and delayed in seeking treatment for his non-Hodgkin’s lymphoma and this delay resulted in his death.
[30] Although the Respondent would allow that the AAT erred in law in its consideration of the second hypothesis relied on by the Applicant, this error was not material.
[30.1] This error of law involved the consideration by the AAT of the hypothesis where it found there was no SoP for fear or phobia.
[30.2] The AAT made a finding of fact, on the balance of probabilities that the cause of the veteran’s death was due to the effects of non-Hodgkin’s lymphoma on 25 July 1997 (AB 152 [69]).
[30.3] Having determined the ‘kind of death’ the AAT was required to consider the relevant SoP for the ‘kind of death’ in this case non-Hodgkin’s lymphoma Instrument No.37 of 2003.
[30.4] The ‘kind of death’ was not fear or phobia. Accordingly, the AAT would only need to consider fear or phobia if this was the ‘kind of death’ and only then would it need to consider whether a SoP existed in respect of these conditions.
[30.5] As there was in force a SoP in respect of the kind of death, non-Hodgkin’s lymphoma, the hypothesis could only be reasonable if it fits, that is, it is consistent with the template to be found in the non-Hodgkin’s lymphoma SoP.
[30.6] The SoP prescribes those factors that must exist and be related to service before it can be said a reasonable hypothesis has been raised connecting death with the circumstances of the veteran’s operational service.
[30.7] As Heerey J said in Deledio v Repatriation Commission (endorsed by the Full Court in Repatriation Commission v Deledio) the SoP is a statute backed declaration of what is proved or known scientific fact. It prescribes a medical scientific template, which the claim must fit, and, where the claim is one that relates to operational service, the SoP defines the connection between death and war-service that must be raised by the hypothesis said to connect the disease with the relevant service.
[30.8] SoP No. 37 of 2003 in respect of the ‘kind of death’ set out the only factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting death from non-Hodgkin’s lymphoma with the circumstances of the veteran’s relevant service.
[30.9] Factor 5 in SoP No 37 of 2002 does not set out phobia or fear as a factor capable of connecting the veteran’s death from non-Hodgkin’s lymphoma with the circumstances of service.
[31] In these circumstances the AAT were not permitted to consider the hypothesis raised without reference to the SoP. While the AAT did in fact consider this hypothesis without reference to the SoP, this is an error of law. It is an error of law that was favourable to the Applicant and ultimately was not material to the decision made by the AAT.
Ground 4.2
[32] The Applicant submits the AAT was incorrect in its application of the Deledio steps when considering the Applicant’s first hypothesis. This hypothesis relied on the inability of the veteran to obtain appropriate clinical management for non-Hodgkin’s lymphoma. The Applicant relied on factor 5(j) in SoP No. 37 of 2002 (sic).
[33] The Respondent submits the AAT made no error of law in its consideration of the first hypothesis.
[33.1] The AAT made a finding of fact, on the balance of probabilities that the cause of the veteran’s death was due to the effects of non-Hodgkin’s lymphoma on 25 July 1997 (AB 152 [69]).
[33.2] The AAT found that the material pointed to a hypothesis connecting the veteran’s death with the circumstances of service (AB 152 [70]) - step one Deledio.
[33.3] The AAT identified the SoP relating to non-Hodgkin’s lymphoma as Instrument No 37 of 2002 (sic) (AB 152 [71]) - step two Deledio.
[33.4] The AAT considered Factor 5(j) in SoP No.37 of 2002 (sic) as relied on by the Applicant to connect the veteran’s death with the circumstances of his service.
The relevant SoP prescribes the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the death from non-Hodgkin’s lymphoma with the circumstances of the veteran’s service. In order for the hypothesis to include those elements, the material would need to raise or point to each element in the SoP. Only then could it be said that the hypothesis fitted the template or was upheld by the SoP - Repatriation Commission v Gosewinckel, Connors v Repatriation Commission and Bull v Repatriation Commission.
[33.5] The AAT was then required to consider whether the hypothesis was reasonable, that is, whether it is consistent with the template to be found in the SoP — step three Deledio.
[33.6] The AAT found there was no material pointing to the veteran:
[33.6.1] suffering or contracting non-Hodgkin’s lymphoma before his period of eligible war service (AB 134 [15] AB 152-153 [71]);
[33.6.2] suffering or contracting non-Hodgkin’s lymphoma while he was rendering eligible war-service, but not arising out of; his eligible service (AB 152-153 [71] AB 157 [89]).
[33.7] Therefore, the veteran’s non-Hodgkin’s lymphoma could not have been contributed to in a material degree, or aggravated by the veteran’s eligible war-service.
[33.8] The AAT found that this hypothesis was not reasonable, as it did not fit the template set out in the SoP. Therefore, the death is not war-caused and the claim fails (AB 134) [15] AB 152-153].
[33.9] Only if the hypothesis is found to be reasonable because it fits the template set out in the SoP will the decision maker be required to consider s120(1) - step four Deledio.
[34] The Respondent submits that this finding does not demonstrate any error of law by the AAT in its consideration of the hypothesis, or the methodology applied in considering the hypothesis in accordance with the Deledio steps. So that no error of law is shown to exist.
Ground 4.4
[35] The Applicant submits the AAT failed to accord the Applicant procedural fairness by:
[35.1] failing to keep the Applicant fully informed of further investigations the AAT requested the Respondent to conduct;
[35.2] the conclusions the AAT reached based on the further investigations;
[35.3] failed to hear from the Applicant in respect of this material.
[35.4] The Applicant further submits the AAT referred to the condition of hookworm infestation being contracted in Northern India or Burma based on the AAT Member’s personal knowledge without giving the Applicant the opportunity to adduce evidence that the condition may have occurred on operational service —Applicant’s submission page 6 point 3.4.
[36] The Respondent submits:
[36.1] The AAT referred to an entry in the veteran’s service records (AB 146 [53]) and sought clarification from the Respondent after informing both parties of its intention to do so.
[36.1.1] Neither the Applicant or Respondent objected to this enquiry being made at the request of the AAT (AB 147 [53]);
[36.1.2] The Respondent undertook the enquiry requested by the AAT and obtained a report from Writeway Research Service Ltd (Writeway) (not reproduced);
[36.1 3] A copy of the report from Writeway was filed by the Respondent with the AAT and served on the Applicant on 15 May 2006;
[36.1.4] The entry referred to the veteran adopting a son who was a ward of the state and that the child born 13 July 1957 was a ‘foster child’.
[36.1.5] The AAT indicated in its decision (AB 155 [80]) that it did not consider the fact the veteran had an adopted son as relevant to the decision but it did support the Applicant’s evidence that the veteran did not tell her anything about his past.
[36.1.6] There is no evidence the Applicant sought or contacted either the AAT or Respondent upon receipt of the Writeway report and sought to make further submissions based on the content of the report.
[36.1.7] The AAT considered the contents of the Writeway report supported the applicant’s evidence.
[36.1.8] There is no material provided by the Applicant that demonstrates:
[36.1.8.1] how she was denied procedural fairness by the AAT;
[36.1.8.2] or how this material affected the AAT decision;
[36.1.8.3] how this material affected the Applicant in an adverse manner.
[36.2] The Respondent submits that the material provided in the Writeway report was not relevant to the questions in issue before the AAT.
[36.3] In respect of the comment, concerning the hookworm infestation the Respondent submits that is immaterial and irrelevant to the findings made by the AAT in respect of the claim that the veteran’s death from non- Hodgkin’s lymphoma was related to service. The Applicant did not make the claim for compensation based on hookworm infestation, or raise any hypothesis concerning hookworm infestation and death as a result of non- Hodgkin’s lymphoma.
Ground 4.5 and 4.6
[37] Section 43(2) of the AAT Act imposes an obligation on the AAT to give reasons for its decision either orally or in writing Where the AAT gives its reasons for decision in writing it is required to ‘include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based’ — s.43(2A)
[38] In Comcare v Lees [(1997) 151 ALR 647] Finkelstein J set out a number of principles in determining whether the AAT has complied with s.43(2A) of the AAT Act.
[38.1] ‘First as Shepard J said in Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157 no standard of perfection is required in their preparation.
[38.2] What is required is that the reasons should be expressed in a clear language so they are capable of being understood Ansett Transport at 48 ALR 507.
[38.3] The reasons need not deal with every detail of evidence but must set out those parts of the evidence which are important for conclusions arrived at Our Town FM Pty Ltd v Australian Broadcasting Tribunal No.1 (1987) 77 ALR 577.
[38.4] The reasons must disclose the reasoning processes of the tribunal Telescourt v Commonwealth (1991) 29 FCR 227.
[38.5] Finally in determining whether the reasons are adequate they must be considered fairly and not combed through “with a fine appellate toothcomb to find error” Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 291; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 187.’
[39] In Bull v Repatriation Commission the Full Court said in assessing whether a Tribunal has considered all the material before it:
‘We have examined the factual material referred to by the Tribunal at paras [3] to [21] of its reasons and the submissions of the appellant and we can not conclude that the statement by the Tribunal in the first sentence of para [35] of its reasons that it had examined all the material before it was not an accurate reflection of what the Tribunal did. This is so especially in the light of various statements in the cases that it is not incumbent on a Tribunal to cover every aspect of every factual matter: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J); Risky Investment Corp v ABT (1982) 40 ALR 233; and FCT v Caneiro (1988) 15 ALD 368, 369; and in light of the approach not to examine the Tribunal’s reasons with an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.’
[40] The Respondent submits the AAT has included findings on material questions of fact and referred to the evidence on which those findings were based. The AAT has complied with the obligations of s.43(2A) of the AAT Act.
Oral submissions
In oral submissions the applicant firstly relied upon the decision of the Full Federal Court in Repatriation Commission v Law (1980) 31 ALR 140 at 150 where the court said:
In s 101(1)(b) the words “arising out of” require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be “immediate”, “direct” or “proximate” or by saying it connotes a “real”, “sole” or “dominant” cause.
The Act does not say death which is “caused by” or “results from” his war service – phrases which might connote a proximate causal relationship. The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.
The applicant argued that the hypothesis in this case concerning the veteran’s phobia could not be described as fanciful or tenuous. The applicant argued that the veteran’s phobia had caused him to delay in seeking treatment and said that the Tribunal had found at paragraph 70 of its reasons that these circumstances raised a reasonable hypothesis. (In fact, at paragraph 70 the Tribunal clearly stated that the material raised a hypothesis rather than a reasonable hypothesis.)
The applicant then argued that the Tribunal correctly set out the test in Byrne to ascertain whether the hypothesis was reasonable but failed to properly apply that test. It was argued that the Tribunal failed to consider whether the second hypothesis was disproved beyond reasonable doubt given that the Tribunal had concluded that the claim that the veteran’s hospital experiences in 1954 and 1955 caused his phobia could not be categorically refuted on the basis that there was insufficient evidence. The applicant argued that the Tribunal had not found that the second hypothesis was disproved beyond reasonable doubt. The applicant also argued that in concluding at paragraph 90 of its reasons for its decision that the second hypothesis was too tenuous and too remote to be reasonable, the Tribunal had evidently forgotten that it had already found that the second hypothesis was reasonable.
Otherwise, the applicant relied on her written submissions.
In reply the respondent said in oral submissions that the applicant had misunderstood the difference between a hypothesis and a reasonable hypothesis and had misunderstood the difference between a kind of death and the circumstances giving rise to a death.
The respondent noted that the first question in cases such as the present is to ascertain the kind of death. The respondent argued that there was a very clear finding in this case which was not challenged that the kind of death was non-Hodgkin’s lymphoma. The respondent then argued that having determined the cause of death, the Tribunal needed to ascertain whether the material raised a hypothesis linking the veteran’s operational service to his kind of death. The respondent argued that the Tribunal then needed to ascertain whether any hypotheses identified was reasonable. If there was a relevant SoP, the respondent argued, a hypothesis could only be reasonable if it fitted within the template provided by that SoP.
The respondent argued that because factor 5(j) as qualified by clause 6 of the relevant SoP was not satisfied in this case, the hypothesis was not reasonable. The respondent noted that the SoP required the veteran to have suffered his non-Hodgkin’s lymphoma during the period of his operational service, being 9 July 1953 to 21 July 1955, and that there was no material indicating that he had suffered from non-Hodgkin’s lymphoma at that time. Accordingly, the respondent argued, the first hypothesis could not succeed and there was no occasion for the Tribunal to take step 4 of Deledio in relation to the first hypothesis.
In relation to the second hypothesis, the respondent argued that the Tribunal had been led into error by a confusion between the veteran’s kind of death and the circumstances of his death. The respondent argued that the veteran’s kind of death was non-Hodgkin’s lymphoma and that the veteran died of that and nothing else. The respondent argued that there was no finding that the veteran had died of a phobia so there was no occasion to consider that hypothesis. The respondent noted that Dr Strauss, a psychiatrist, had given evidence to the Tribunal that it was possible that there may have been other causes of the veteran’s fear of doctors and hospitals besides his hospitalisations while he was in Japan. Dr Strauss said among other things, “there are other possibilities that I can’t deny.”
In any event, the respondent argued that the Tribunal’s whole consideration of the second hypothesis was irrelevant because the second hypothesis did not fit within the relevant SoP. Otherwise, the respondent relied upon its written submissions.
In reply, the applicant referred to s.120A(4) of the Act.
The second hypothesis
The applicant in grounds 1 and 3 raised a number of alleged errors apparently concerning the approach taken by the Tribunal in relation to the second hypothesis. The respondent conceded that the Tribunal had erred in relation to the second hypothesis but argued that the error was not material to the outcome. The respondent argued that the Tribunal’s first step, before considering the Deledio steps, was to ascertain the kind of death or the medical cause of the death suffered by the veteran. The respondent argued that the Tribunal had made a clear and unchallenged finding that the veteran had died of non-Hodgkin’s lymphoma and from nothing else. That being so, the respondent argued that the Tribunal should only have examined the first hypothesis and should not have considered the second hypothesis at all. Accordingly, it was argued, any error in the Tribunal’s consideration of the second hypothesis was immaterial.
I accept that contention. The Tribunal’s finding that the veteran’s “kind of death” was non-Hodgkin’s lymphoma was clear and unchallenged. It was based on an abundance of evidence. While there may be multiple conditions that lead to a particular death (see Hancock at [8]), that was not the finding in this case. The Tribunal found that, “There is no doubt that Mr Gittins died from non-Hodgkin’s lymphoma …”. It did not find that anything else caused the veteran’s death. That being so, the Tribunal had to ascertain whether there was a SoP that applied to non-Hodgkin’s lymphoma.
There was such a SoP. The SoP relating to non-Hodgkin’s lymphoma set out the factors which as a minimum had to exist and which of those factors had to be related to the veteran’s service before it could be said that a reasonable hypothesis had been raised connecting his kind of death with the circumstances of his service. The relevant factors did not exist in the present case. The veteran’s inability to obtain appropriate clinical management of his lymphoma did not fit within the proviso in clause 6 of the relevant SoP. Accordingly, it could not be said that there was a reasonable hypothesis connecting the veteran’s death with his service.
As there was only one kind of death, or cause of death, found by the Tribunal to have existed in this case, the claim had to fit within the template provided by the SoP for that kind of death for the claim to succeed. The claim did not fit within that template, so it necessarily failed. The Tribunal should not have looked at any alternative hypothesis because the SoP for non-Hodgkin’s lymphoma set out the matters that needed to exist for a claim based on the relevant kind of death to succeed. Accordingly, the Tribunal should not have looked at the second hypothesis. Any errors in the Tribunal’s consideration of the second hypothesis were immaterial to the result.
Sub-section 120A(4) of the Act does not assist the applicant. The Authority has made a SoP in relation to the veteran’s kind of death, namely, non-Hodgkin’s lymphoma. Accordingly, s120A(4) of the Act does not apply. Similarly, Repatriation Commission v Law (1980) 31 ALR 140 does not assist the applicant. That case predates the statutory regime that introduced the system of SoPs. Where there is only one cause of death, and a SoP that applies to that kind of death, that SoP governs the determination of whether the hypothesis that the death arose from relevant service is reasonable.
The first hypothesis
The applicant appears to argue in ground 2 that the Tribunal incorrectly applied the Deledio steps in relation to the first hypothesis. This hypothesis was based on the veteran being unable to obtain appropriate clinical management for his lymphoma, being factor 5(j) in SoP number 37 of 2003. More specifically, the applicant argued that the Tribunal made an error in its application of step 3 of Deledio because the Tribunal failed to appreciate that at step 3 the connection between the hypothesis and the SoP only needed to be one of the degree of a reasonable hypothesis. The applicant argued that the Tribunal found facts at step 3 when it is only at step 4 that facts should be found.
The applicant argued that the Tribunal conflated steps 3 and 4 of Deledio and never applied the Deledio steps to the argument that paragraph 5(j) of SoP 37 2003 applied where there was a material contribution to the lymphoma by the inability of the veteran to obtain appropriate clinical management by reason of a phobia associated with service.
The respondent argued that there was no need for the Tribunal in this case to consider step 4 because the applicant failed at step 3. That is, the respondent argued that, having found that the veteran’s kind of death was non-Hodgkin’s lymphoma, the Tribunal correctly took step 1 in Deledio and found that the material pointed to a hypothesis connecting the veteran’s death with the circumstances of his service. The Tribunal then took step 2 of Deledio and ascertained that there was a SoP in force in relation to non-Hodgkin’s lymphoma. The Tribunal identified that SoP as SoP number 37 of 2003.
The Tribunal then took step 3 in Deledio and considered whether the hypothesis conformed to the template found in the SoP. The applicant relied on paragraph 5(j) of the SoP. Paragraph 5(j) concerns the inability to obtain appropriate clinical management for non-Hodgkin’s lymphoma. Clause 6 of the SoP provided that paragraph 5(j) of the SoP applies only to non-Hodgkin’s lymphoma contracted before or during (but not arising out of) the person’s relevant service.
The Tribunal noted that there was no evidence that the veteran had contracted non-Hodgkin’s lymphoma before his operational service which commenced on 9 July 1953 and concluded on 24 July 1955. Although the Tribunal did not expressly make a finding that the veteran had not contracted non-Hodgkin’s lymphoma during his operational service, that conclusion appears to be implicit in the Tribunal’s reasons. Having reached that point, the Tribunal found that the hypothesis was not consistent with the template provided for in the SoP and found that the first hypothesis was not reasonable: paragraph 71.
In proceeding in that way, the Tribunal directly applied step 3 of Deledio. As stated by the Full Court at the end of its exposition of step 3 in Deledio:
If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
In my view, the Tribunal correctly applied the first three Deledio steps. Because the first hypothesis did not fit within the template, it was unnecessary for the Tribunal to consider step 4. Accordingly, the Tribunal did not make the errors alleged in relation to the first hypothesis.
Procedural fairness
In relation to ground 4, the applicant submitted that the Tribunal failed to afford the applicant procedural fairness in two respects. Firstly, it was argued that the Tribunal requested the respondent to undertake further investigations but failed to keep the applicant informed of those investigations and to communicate its conclusions to the applicant and thereby denied the applicant a full hearing on those points. Secondly, it was argued that the Tribunal made its decision by reference to its own knowledge of hook worm infestation to conclude that the veteran’s infestation was most likely contracted by the veteran in Northern India or Burma.
The further investigations mentioned by the applicant are recorded at paragraph 53 of the Tribunal’s decision. The investigations concerned an entry in the veteran’s service record that were in a somewhat coded form. The Tribunal stated that it was unable to decipher the entry and, after the hearing, the Tribunal informed the parties of its intention to seek an interpretation of the entry. The Tribunal recorded that neither party objected to the Tribunal’s proposed course of action. The Tribunal recorded that the respondent obtained a report from a research service which provided an interpretation of the entry in the veteran’s service records. The interpretation was to the effect that the veteran had adopted or been made the legal guardian of a 13 year old child in Japan in 1970. The Tribunal referred to this matter at paragraph 80 of its reasons for decision to say that the evidence supported the applicant’s claim that the veteran had not told her anything about his past including anything about his war service and experiences. Otherwise, the Tribunal did not refer to the entry in the veteran’s service records. All in all, the entry was only relied upon by the Tribunal to the applicant’s advantage. Accordingly, there was no reviewable denial of procedural fairness.
As to the Tribunal relying upon its own knowledge of hookworm infestation, the Tribunal’s comment that the veteran’s infestation was most likely contracted in Northern India or Burma was contained in brackets and is clearly an aside. It was mentioned in passing in describing the veteran’s two periods of hospitalisation in Japan, one in 1954 and one in 1955. There was nothing to suggest that the hookworm infestation had any connection with the veteran’s death and I am satisfied that the Tribunal’s aside was completely irrelevant to its decision. Ground 3 is not made out.
Adequacy of the Tribunal’s reasons
Grounds 4 and 5 raised by the applicant are that the Tribunal failed to provide full and adequate reasons for its decision. The applicant argued that the Tribunal’s findings on material questions of fact were confused by the wrong methodology adopted by the Tribunal. More particularly, the applicant argued that the Tribunal seemed to infer that the veteran did not suffer from a phobia of doctors but did not make a finding to that effect and did not make any findings that would permit the Tribunal to come to the conclusions expressed in paragraph 90, namely, that the evidence was such that the second hypothesis was too tenuous and too remote to be reasonable.
The argument about the failure to give reasons appears to be wholly concerned with the Tribunal’s consideration of the second hypothesis. As the Tribunal should not have embarked upon a consideration of the second hypothesis, doing so was not to the applicant’s disadvantage. There were no adverse consequences to the applicant in the Tribunal not making the findings the applicant has described.
As part of this ground, the applicant also says that it is not clear what standard of proof the Tribunal adopted at different points in it reasons. Again, this claim seems to relate to the Tribunal’s consideration of the second hypothesis, which for the reasons given above, was immaterial to the result. The Tribunal did deal adequately with the first hypothesis. The appropriate standard of proof was applied in following the first three Deledio steps and in finding that the first hypothesis was not consistent with the template in the relevant SoP.
Conclusion
For these reasons, the appeal is dismissed with costs, including reserved costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 21 February 2007
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