McMahon, J.E. v The Repatriation Commission
[1993] FCA 486
•21 JULY 1993
JESSIE ELIZABETH McMAHON v. THE REPATRIATION COMMISSION
No. NG836 of 1992
FED No. 486
Number of pages - 10
Repatriation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J(1)
CATCHWORDS
Repatriation - question posed by s. 120(3) of the Veterans' Entitlements Act 1986 - whether Administrative Appeals Tribunal erred in law in forming the opinion that the whole of the material before it did not raise a reasonable hypothesis connecting the particular operational service with the death of the veteran from a form of cancer to which his addiction to alcohol had contributed - question of fact - whether the Tribunal had improperly used conflicting medical evidence to choose between hypotheses or had properly used it for the purpose of examining the validity of the reasoning which supported the hypothesis relied upon by the claimant - effect of error of law which was not significant to the decision.
Veterans' Entitlements Act 1986 (Cth), s. 120
Bushell v. Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v. Whetton (1991) 31 FCR 513
Bell v. Repatriation Commission (1992) 26 ALD 545
Repatriation Commission v. Hughes (1990) 13 AAR 34
Repatriation Commission v. Hughes (1991) 23 ALD 270
Black v. Repatriation Commission (Burchett J, unreported, 21 April 1993)
Cavell v. Repatriation Commission (1988) 9 AAR 543
HEARING
SYDNEY, 16 July 1993
#DATE 21:7:1993
Counsel for the Applicant: Mr A.T. McInnes QC with Mr
A.L. Hill
Solicitor for the Applicant: Mr Kenneth Harrison
Counsel for the Respondent: Mr D.E.J. Ryan with
Mr D. Mallon
Solicitor for the Respondent: Australian Government
Solicitor
ORDER
The Court orders that:-
the application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BURCHETT J The applicant is the widow of a veteran, within the meaning of the Veterans' Entitlements Act 1986 ("the Act"), who died on 16 November 1990 of sarcomatoid hepatocellular carcinoma. She made a claim under the Act for a pension on the ground that her husband's death was attributable to his war service. That claim was rejected by a delegate of the Repatriation Commission, whose decision was affirmed by a Veterans' Review Board. The matter was then taken before the Administrative Appeals Tribunal, which also rejected the claim. It now comes before me as an appeal on a point of law only.
Both parties agree that the claim is one which falls within the provisions of s. 120 of the Act. The relevant subsections of s. 120 are subs. (1) and (3), which provide:
"(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.
(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."
As was pointed out in Repatriation Commission v. Whetton (1991) 31 FCR 513 at 516, the opinion to which subs. (3) refers is an opinion that the material before the Commission does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. In the present case, counsel for the Commission suggested that the High Court in Bushell v. Repatriation Commission (1992) 175 CLR 408 had taken a different approach. I see no sign of that. The High Court was concerned with a case in which there had been a finding by the Administrative Appeals Tribunal, as appears at 411, that the hypothesis put forward was "not reasonably based". The question dealt with in Whetton therefore did not arise.
The joint judgment of Mason CJ, Deane and McHugh JJ in Bushell gives guidance as to what is meant, in s. 120(3), by the expression "the material before (the Tribunal) does not raise a reasonable hypothesis" of the required kind. Their Honours 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."
Their Honours continued (at 415):
"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."
Again at p 415, their Honours described the question raised by subs. (3) as "whether there is some 'material' which calls for a determination under s. 120(1)".
In Bell v. Repatriation Commission (1992) 26 ALD 545 at 546, the joint judgment of Davies and Beaumont JJ emphasized that whether the facts before the Tribunal raised a reasonable hypothesis to the requisite effect was a question of fact. They cited (at 547) from Whetton the proposition:
"What is required is 'some degree of acceptability or credibility', to make the hypothesis 'reasonable', and 'some support in (the) material' before the tribunal, so that the hypothesis can be said to be 'raise(d)' by that material."
Their Honours also made it clear that, if an hypothesis were "purely theoretical", not arising out of "the particular circumstances of the veteran's case", the Tribunal might arrive at an adverse finding.
Once the facts raise a reasonable hypothesis, so that the Commission or Tribunal is unable to form the opinion referred to in subs. (3), the joint judgment in Bushell makes it clear (at 416) that the question is whether under subs. (1) the Commission or Tribunal "is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis", that is to say, "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".
The present case concerns the application of these principles. The applicant says, on the basis of certain evidence given by a psychiatrist, Dr Nasser, that there is a reasonable hypothesis connecting the death of the deceased with the circumstances of his particular service. The first of the facts said to raise that hypothesis is that the ingestion of alcohol, as is accepted, caused or contributed to the fatal carcinoma. Obviously that fact alone could not, on any view, be said to raise a relevant hypothesis. Equally obviously, if the material before the Tribunal indicated that under the stress of combat the deceased became an alcoholic and thereafter continued in that state, this situation, when combined with the accepted medical connection between the particular cancer and alcohol, would preclude the formation of an opinion that the material did not raise the necessary reasonable hypothesis. Much less might do so, in the opinion of a particular Tribunal. See Repatriation Commission v. Hughes (1990) 13 AAR 34, but cf. this case on appeal at (1991) 23 ALD 270 at 276, per Beaumont and Hill JJ and per Einfeld J. Here, the Tribunal pointed out that there was
"no evidence that the deceased's commencing to drink alcohol arose out of or was attributable to his war service. At best, there is the mere temporal connection, namely that according to the Applicant the Deceased did not drink alcohol prior to service and afterwards he did."
If that is a correct statement, it seems to me impossible to say that there was error of law in the Tribunal, upon all the facts of this case, forming the opinion that the material before it did not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of his particular service. The forming of the relevant opinion was entrusted by the legislature to the Tribunal, and not to the Court.
The only evidence which could throw any significant light on the deceased's development of the habit of drinking alcohol was the evidence of his widow. She had first met her husband in about 1939 in Werris Creek, where they kept company for some time. In those days he did not drink alcohol. On 20 February 1939, he turned 18 years of age. According to the reasons for decision of the Veterans' Review Board, which were before the Tribunal, Mrs McMahon told the Board that her husband went to Sydney to work, she thought, about one or two years before he enlisted. After he had enlisted (which was on 30 June 1942), she met him on leave at Werris Creek, when she could not recall him drinking alcohol, but she thought he had started to do so. She went to Sydney and met Mr McMahon again in 1945, when they became engaged, and they married in 1948 after his discharge in 1946. Before the marriage, "he lived with an uncle in Granville who was a drinker". He had joined the Shell Oil Company in 1946 as a storeman, and he worked with that company until 1962.
In evidence before the Tribunal, Mrs McMahon said she met Mr McMahon "about 1939", or "some time a little before 1939", at Werris Creek where they both then lived. After that, she saw him every day. They went out together. She said: "To my knowledge he didn't drink". He had not told her very much of what happened in the army, but she said: "I think there was bombing and he ran for the trenches, you know, like dived for them, whatever." She presumed that had happened "more than once". He had wished to obtain an apprenticeship, when he joined the army, to be a pastry cook, but in that he was disappointed. While he was in the army she remained at Werris Creek, and as it was his home town, he visited a number of times during his period in the army. On some of these occasions, he was absent without leave when he visited her. She could not remember him giving any reason for his conduct, nor did she recall him drinking alcohol.
Mrs McMahon did not notice anything different about Mr McMahon after the war. In relation to the period up to 1948, when they were married, asked whether he drank, she replied: "Well, not while he was with me, but he may have. Maybe it wasn't worrying me then." Pressed for her best recollection, she said: "I think he had started." Later she said he had. After the marriage, he did drink alcohol, and there was a gradual progression to heavy drinking. When he worked for the Shell Company, he would always call in for a drink on his way home, and then he started working part time at a hotel. That, it appears, was in the late 1950s.
In cross-examination, Mrs McMahon said that Mr McMahon's personality was the same in the early days after war service. At the Shell Company, he was disappointed because he did not get further promotion from leading hand. She said:
"He did drink after the war. ... I am sure he didn't drink before the war but I think with the war and friends and - this is how it started. I don't know whether it was what he went through. I mean, why do people start? I don't know."
She said it was never enough to give her any cause for concern, she thought, at that time (that is, as at 1948). At one point, when asked about his drinking habits as at 1948, she said: "Well everyone drinks, right? Whether it be cordial or whatever." She did not recall him producing a bottle of beer when they went to the beach or something like that, or at restaurants. He was "never full" in that period.
Mrs McMahon was specifically asked, with reference to his coming home to Werris Creek during the period of his service in the army, if she could remember whether Mr McMahon told her he liked the army, or thought he was having a rough time of it. She replied that she could not remember what they talked about.
Counsel for the applicant suggested the Tribunal should have ignored the Veterans' Review Board's note of Mrs McMahon's statement that her husband went to Sydney to work about one or two years before he enlisted, because she did not repeat it in her evidence before the Tribunal and was not questioned about it. However Dr Nasser's report, which was tendered on her behalf, contains the following notes of the Doctor's interview with Mrs McMahon:
"They started going together the night World War II broke out. She believes he joined in 1942. She described him before the War as a very nice person and a non-drinker. She stated she 'saw him every day and every night'. He was a non-smoker and she was certain he did not drink at this time. He came to Sydney (emphasis added) but they remained 'always in touch'. She does not believe that he was drinking before his Army service.
She stated that she first became aware of his drinking after the War. His problem drinking began when he commenced working in hotels as a Barman." (That, other evidence shows, was in the late 1950s.)
From this summary of the evidence of Mrs McMahon, it is clear:
(a) that her evidence provides no clear indication of when the deceased first began on some occasions to take alcohol;
(b) it is not known in what circumstances he first began to take alcohol, or what motivated him;
(c) there is no hint of any religious or other conviction which might have suggested that it would have needed some significant external impetus to cause him to begin to take alcohol;
(d) there is nothing to suggest that during his period of war service the drinking of alcohol, whether or not in strict moderation, became habitual with him; it cannot be said to be a fact (or even a suggestion) raised by this evidence that during his war service he learned to utilize alcohol as a means of relieving stress.
One may add that it is not even clear, on Mrs McMahon's account, that Mr McMahon first started to drink alcohol in the army; he may have done so when he went to Sydney before enlisting, a not unnatural thing to do for a young man coming to the city from a country town at a time when he was approaching and reaching the age of 21, or he may have done so during periods of leave, or even after his discharge. Nor does Mrs McMahon's evidence provide any reason to think that Mr McMahon became stressed during his war service, or by "the circumstances of the particular service rendered by (him)". There is no suggestion he was personally involved in any combat. It appears from Mrs McMahon's evidence that on one or more occasions he may have had to take shelter from an air raid, or impending air raid; even as to this, it is not claimed that any bomb dropped anywhere near him. Apart from the matter of air raids, Mr McMahon was absent without leave on a number of occasions; that may have induced some stress, but he visited Mrs McMahon on those occasions and she does not suggest that he then found relief in any drinking habit.
This evidence is to be contrasted with the evidence in Black v. Repatriation Commission (Burchett J, unreported, 21 April 1993), where the deceased "was drinking heavily at the time of his discharge", having endured identified and very significant stresses during his service. While acknowledging that the decision on the facts was for the Tribunal, I made it clear that a finding of a reasonable hypothesis raised by the material, linking the stresses shown with the heavy drinking shown, was open, and set aside a decision denying the existence of such an hypothesis for various errors of law in the Tribunal's reasoning.
In the present case, the appellant contends that the Tribunal erred in law "in holding that on Dr Nasser's evidence a reasonable hypothesis connecting war service with death was not raised". The applicant also relied on a medical certificate of a Dr Chong who had known her since 1978, and had known the deceased between 1988 and his death in 1990. The certificate includes the following:
"He had behavioural changes since 1978 which was due mostly to alcohol. He had confessed to me as starting to drink since the war. Of course, his occupation post-war at the hotel accentuate (sic) his drinking behaviour. Taking chronically (sic - the applicant's counsel suggests this means 'talking chronologically'), his 'nerves' during war made him drink."
Dr Chong did not give evidence. It seems to me that the words "taking chronically" are likely simply to have meant that Mr McMahon was taking alcohol over a long period of time. There is nothing to show whether the suggestion that Mr McMahon's nerves during the war made him drink came from him or from his wife or from a speculation by Dr Chong. Certainly, the certificate provides no basis for the comment, although it is clear Dr Chong provided the certificate specifically in order to persuade the Repatriation Commission to grant Mrs McMahon a pension.
Turning to the evidence of Dr Nasser, it should be stated at once that he is a well qualified psychiatrist whose opinions as to service-related psychiatric illnesses were, in the view of the Tribunal, to be accorded great weight. He had seen service as a consultant psychiatrist with the Australian army in South Vietnam. He interviewed Mrs McMahon and reviewed the documents in the matter on 24 February 1992. Dr Nasser noted from the files that Mr McMahon had a number of admissions during his war service and was diagnosed as having lumbar fibrositis, which the Doctor "construed ... as possible evidence that he was responding to stress by developing symptoms that didn't result in a physical diagnosis". He also noted the occasions of absence without leave. Dr Nasser said there were two models for the development of a drinking habit: drinking to relieve stress, and drinking because of enjoyment of the effect of alcohol and of the environment in which the drinking occurs. He did not know into which category Mr McMahon fell, but war in his view was "a major stressor". Mr McMahon's heavy drinking only developed in the late 1950s and from then on, when he became involved in the liquor trade, which Dr Nasser said was well known to have "a much higher incidence of alcohol dependence and addictions".
The hypothesis put forward by Dr Nasser is articulated in the following passage from his evidence:
"This is the history that I have. He didn't drink before the war. The war experience is recognised as being one of the most stressful experiences anyone can undergo. That's fairly consistent through most of the literature. I believe there are individuals who will have enjoyed their war experience and found it very good and the best time of their life but most people will have found the experience of war stressful. So I have to therefore conclude that in terms of this man's life that was a major stressor in his life. He came back from the war with a different pattern of coping with stress which was he was then drinking and that continued until he began to drink more. This is the understanding I had when he got in an environment where there was plenty of alcohol around."
The Doctor added: "Most people ... use alcohol as a way of dealing with their own stresses. That's why it is so popular." In answer to specific questions the Doctor said his hypothesis was "that the drinking was learned behaviour which continued after service ... . It was triggered in service because of the stress ... . (H)e served in a war environment and that seems to have triggered it."
The material before the Tribunal indicated, in addition to the matters I have already referred to, sources of stress upon the deceased, apart from the war. The deceased had, for example, shown some resentment at the fact that his parents had cut short his schooling, with the result he had become a coalminer for a short time before the war. He was frustrated about that because he thought he had the intelligence to have benefited from continued schooling, which could have put him in the way of a more congenial occupation. He also resented the army's refusal, when he enlisted, to train him as a pastry cook. A psychological witness, Dr Mattick, considered it "a plausible hypothesis" that his disciplinary problems, that is, his "numerous absences without leave may have been due to resentment on this account". After the war, he suffered some frustrations in civilian employment, being denied opportunities including a promotion which he wanted, which Dr Mattick thought might have conduced to his alcohol dependence. The fact is that there is no evidence he was alcohol dependent, or drank more than perfectly moderately, at any time prior to his marriage in 1948 or for some time thereafter. Equally, there is nothing to suggest that he ever had an attitude that was adverse to the drinking of alcohol; his father and brothers drank alcohol, and at the time when he is said not to have done so he was quite young.
I have referred to the salient features of the material which is claimed to raise, as a reasonable hypothesis, the hypothesis put forward by the applicant. It will be apparent that it is very sparse. In one sense, the less there is known about a particular question, the greater the number of competing hypotheses which may be suggested in relation to it. But that is not what s. 120(3) contemplates. Its very purpose, the joint judgment in Bushell emphasizes (supra, at 413), "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." Their Honours went on to quote from the relevant Explanatory Memorandum, which included the statement:
"A pension will not be payable in circumstances where the evidence does not provide some positive inference in favour of a connection between the injury, disease or death and the veteran's or member's particular service. The sub-clause (i.e. s. 120(3)) will require the Commission to refuse the claim where, at the end of the Commission's consideration of the material before it, no reasonable hypothesis that there is such a connection has been raised, and if raised, no such reasonable hypothesis remains."
The question in the present case is whether it was open to the Tribunal, on the material before it, to form the opinion that the material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of his particular service. It will be noticed that s. 120(3) requires the Tribunal to give "consideration (to) the whole of the material before it". Although, as was pointed out in Bushell, the subsection is not concerned with the making of choices between competing hypotheses, it is concerned with whether a reasonable hypothesis of the requisite kind is raised, not by some part of the material taken alone, but by the whole of the material before the Tribunal.
The submission of the applicant before the Tribunal, as it noted, related to the hypothesis "that the deceased commenced to drink alcohol whilst on service due to the stress of service and that this then developed post war into a habit of drinking alcohol and, eventually, to a dependence upon alcohol", leading to the condition which caused death. But as the Tribunal also noted: "The evidence as to when the Deceased commenced to drink alcohol is unclear and there is no direct evidence as to why he started to drink." The Tribunal went on to note that Mrs McMahon was unable to say whether the deceased drank alcohol during the periods he spent with her at Werris Creek, when absent from the army without leave, and that his drinking habits immediately post war were unclear. While working for the Shell Company during the 1950s, he
"would stop on his way home from work and have a drink. He started to drink more when he obtained a job as a part-time Barman at the Albion Hotel, Parramatta, in the late 1950s and then having obtained a position as a Barman full-time, began to drink even more and to the extent that his drinking became a problem."
The Tribunal came to the conclusion
"that there is absolutely no evidence at all as to why the Deceased commenced to drink. Dr Nasser has raised a theory as to why the Deceased commenced to drink but there is no factual basis to support this theory. All that is known of the Deceased is that he did not, to the best of the Applicant's knowledge and belief, drink alcohol prior to enlistment. After discharge, he apparently did partake of alcohol but to what extent is not known."
The Tribunal also said: "There is no evidence that the Deceased's commencing to drink alcohol arose out of or was attributable to his war service." Referring to Dr Nasser's theory of stress relief, the Tribunal pointed out that the major disappointment in the deceased's post war life appears to be his failure to obtain training as a pastry cook, and that there was "no evidence that, at that time, he relieved his disappointment by drinking alcohol". Later, he was frustrated by the failure to obtain promotion at the Shell Company, and again, the Tribunal said, "there is no evidence of his turning to alcohol for solace as opposed to a social use of the substance of which he enjoyed partaking". The Tribunal said it was only after he began to work in the liquor industry as a barman that "his drinking became quite marked", alcohol abuse being an occupational hazard in the liquor industry. The Tribunal reached its final conclusion in the following terms:
"In this case the Tribunal is satisfied beyond reasonable doubt that the Deceased commenced to drink alcohol regularly after service as a result of factors unconnected with his service and primarily as a social lubricant. This in turn enables the Tribunal to find that it is satisfied that the material before it has failed to raise any reasonable hypothesis connecting the death of the Deceased with his war service."
This final conclusion does seem to elide the questions whether there was raised a reasonable hypothesis and whether, if such an hypothesis was raised, the Tribunal could, in the words of the joint judgment in Bushell (at 416), be "satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist". However, bearing in mind the clarity of the expression by the Tribunal of its satisfaction beyond reasonable doubt about the commencement of the deceased's habit and the factors which resulted in it, and also having regard to the clarity of the earlier findings as to whether the evidence raised any basis for Dr Nasser's hypothesis, I think it is really quite clear that the Tribunal made findings both that it had formed the opinion referred to in s. 120(3) and that it was in any case satisfied beyond reasonable doubt that there was no sufficient ground for making a determination in favour of the applicant. In both respects, it seems to me the conclusion was entirely open on the material before the Tribunal. In asking itself what the whole of the material showed, it is inescapable that the Tribunal must have understood the various statements made by or attributed to Mrs McMahon in the light of all the other statements made by her. When the material is considered in this way, a consistent picture emerges. She does not know what caused her husband to commence to drink alcohol, nor when he did so. He did not drink to her knowledge when they went out together in Werris Creek, but it is obvious she could not say whether he commenced to drink alcohol promptly on arrival in Sydney at about 20 years of age, or when thereafter he commenced to do so. She told the Veterans' Review Board she thought he was drinking by the time he spent periods absent without leave with her at Werris Creek after his enlistment. She did not reiterate that thought to the Tribunal. She did not suggest there was anything in the slightest degree abnormal about his drinking pattern during the period between his discharge in July 1946 and their marriage in July 1948. There is simply absent any fact to point to the hypothesis that this man's alcohol dependence began in the relief of stress during the war, or was otherwise associated with his service.
The applicant argued that the Tribunal erred in law "in comparing Dr Nasser's evidence with Dr Mattick's evidence and deciding the matter on the basis that it preferred Dr Mattick's evidence". The simple answer to this proposition is that the Tribunal did not act in that way. The Tribunal did not decide the matter on the basis of a preference for Dr Mattick's evidence. It seems to me plain that it complied with the statutory injunction to consider "the whole of the material before it". That, of course, included Dr Mattick's evidence. In a passage I have already quoted from the joint judgment in Bushell (at 415), it is stated that the Commission, in place of which the Tribunal stood,
"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 connection 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".
In the present case, the Tribunal looked at Dr Mattick's evidence, not in order to choose between competing hypotheses, and certainly not in order to seek refutation of the general theory on which Dr Nasser proceeded, but to ascertain whether Dr Nasser's hypothesis was in fact raised by the whole of the material. If it could have been said that the material pointed to or supported the hypothesis put forward by Dr Nasser, I think it is clear the Tribunal would have accepted it. For they stated considerable respect for Dr Nasser. But they used the whole of the evidence, including that of Dr Mattick, to conclude that there was no such support in the material, and thus to enable them to form the opinion they expressed.
It was also argued that the Tribunal "was in error in holding that there was no evidence as to when the deceased commenced to drink alcohol". I have already examined such evidence as there was bearing on this question. I think it is clear that it was open to the Tribunal to take the view that it did. There was certainly no acceptable evidence pointing to any occasion, or even approximately to any time, which could be taken as a starting point.
Although the amended notice of appeal did not contain any ground to this effect, counsel also argued that the Tribunal erred in law when it said: "There is absolutely no evidence at all as to why the Deceased commenced to drink". I think in the context, and I have previously quoted the passage in its relevant context, it is clear that this statement was intended to point a contrast between evidence directly revealing a reason and the mere raising of theoretical possibilities. So understood, the statement is irreproachable. Counsel's argument overlooked the fact that there really could not be evidence of the reason why the deceased commenced to drink in the absence of any evidence to show when he commenced to drink. It was plainly possible that he did so in Sydney during the period, which may on the evidence have been as long as one or two years, before he enlisted, or that he did so at some unspecified time during his period in the army before his discharge in July 1946. Although Mrs McMahon may have come to think he was drinking at some time while he was in the army, she, who knew him well, did not observe him drinking while on leave, and a perusal of her evidence leaves it entirely open that he began to drink after his discharge; on her evidence, he does not appear to have been drinking noticeably as late as his marriage in 1948. Certainly, she gave no evidence to suggest he had acquired a habit of drinking alcohol before he left the army.
The applicant's counsel also contended there was error in law in some observations which the Tribunal made about the difference between smoking and drinking in terms of the tendency of each towards addiction. I think it is quite clear, in their context, that these observations played no part in the actual decision upon either of the two grounds that I have identified. It is therefore unnecessary to deal with this point. If there was an error of law, as distinct from an error of fact, which I doubt, it was not significant: Cavell v. Repatriation Commission (1988) 9 AAR 543; Conway v. Repatriation Commission (1988) 16 ALD 770; Repatriation Commission v. Maley (1991) 24 ALD 43 at 50.
For these reasons, the application must be dismissed with costs.
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