Noble, Stewart William v Repatriation Commission

[1997] FCA 500

STEWART WILLIAM NOBLE v. REPATRIATION COMMISSION
No. VG394 of 1996

FED No. 500/97
Number of pages - 10
Repatriation pension

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

NORTHROP J

Repatriation pension - disease arising from war-caused illness - claim by veteran for pension - whether reasonable hypothesis connecting war service and veteran's diseases - construction of s 120 Veterans' Entitlements Act 1986 (Cth).

PLACE, 22 May 1997 (hearing), 5 June 1997 (decision)

#DATE 5:6:1997

#ADD 13:6:1997

Counsel for the applicant: Mr D De Marchi

Solicitors for the applicant: De Marchi & Associates

Counsel for the respondent: Mr N Green

Solicitors for the respondent: Australian Government Solicitor

The Court orders that the application be dismissed.

NORTHROP J

1. On 14 June 1996, the Administrative Appeals Tribunal ("the Tribunal") constituted by a Deputy President, made a decision that the decision under review by it be affirmed. The decision under review had been made by the Veterans' Review Board which rejected claims by Mr Noble that his bronchial asthma, hypertension and migraine were war caused under the Veterans' Entitlement Act 1986 ("the Act").

2. Mr Noble is a veteran within the meaning of the Act. He was born on 13 August 1922. He served in the Royal Australian Navy from 28 February 1941 to 24 October 1941 to 24 October 1945. He served in HMAS Shropshire and HMAS Rockhampton from 6 March 1943 to 26 March 1944. His other periods of service were on base both overseas and in Australia. He had operational service for the purpose of the Act and thus was rendering eligible war service under section 7 of the Act. He lodged a claim for disability pension and medical treatment for a number of diseases including bronchial asthma, hypertension and migraine. Under subsection 13(1) of the Act, the Commonwealth is liable to pay a pension, by way of compensation, to a veteran if the veteran has become incapacitated from a war caused disease. Under section 9 of the Act, for the purposes of the Act, a disease contracted by a veteran shall be taken to be war caused if the disease "arose out of, or was attributable to, any eligible war service rendered by the veteran" or was contracted while the veteran was rendering eligible war service but did not arise out of that service.

3. In the present case, it is accepted that at present Mr Noble suffers from the diseases of bronchial asthma, hypertension and migraine. The issue before the Tribunal was whether those diseases, or any of them, were war caused. This involved the construction and application of section 120 of the Act. For present purposes the relevant parts of subsection 120(1) and (3) are set out:-

"120 (1) Where a claim under Part II for a pension in respect of the incapacity from ..... disease of a veteran, .... relates to the operational service rendered by the veteran, the Commission (Tribunal) shall determine .... that the disease was a war-caused disease .... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. (2) ...... (3) In applying subsection (1) ... in respect of the incapacity of a person from ... disease ... related to service rendered by the person, the Commission (Tribunal) shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) ...... (b) that the disease was a war caused disease; or (c) ...... if the Commission (Tribunal), 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 .... disease .... with the circumstances of the particular service rendered by the person."

4. Subsection 120(6) makes it clear that nothing in section 120 imposes any onus on any person of proving any matter that is or might be relevant to the determination of the claim.

5. In its reasons, the Tribunal considered each of the diseases from which Mr Noble was suffering. It held that the bronchial asthma depended upon aggravation arising from the treatment for hypertension and thus was dependent upon the outcome of the claim for hypertension.

6. With respect to hypertension, the Tribunal said:-

"As a general proposition it is generally accepted in the medical fraternity that stress is a factor in the development of hypertension. Whether the development of hypertension in the veteran's case is linked to stress on service is another question. In my opinion the facts point inevitably to the conclusion that hypertension developed in the mid 1970's about the time the veteran was under considerable workplace stress as mentioned earlier in these reasons. For a reasonable hypothesis to be raised in the sense referred to in the cases, it must be pointed to by the facts. Here there is an absence of facts to support the hypothesis connecting hypertension with the veteran's service. Having regard to the whole of the material I am satisfied beyond reasonable doubt that there is no sufficient ground for a finding that a reasonable hypothesis is raised connecting hypertension with war service."

7. With respect to migraine, the Tribunal said:-

"Having considered the whole of the material I am satisfied that it does not give rise to a reasonable hypothesis connecting migraine with the circumstances of the veteran's war service."

8. Having come to these conclusions, the Tribunal made its decision affirming the decision under review.

9. Under the provisions of Section 44 of the Administrative Appeals Tribunal Act 1975, Mr Noble appealed on questions of law from that decision. In conformity with subsection 44(3), the appeal was heard by the Court constituted by a single Judge.

10. Recently, the Court, as presently constituted, had to consider problems similar to those arising in this appeal. Much of what was said there has application here. In Prestegar v The Repatriation Commission (No. VG 772 of 1995) 14 February 1997, unreported, I said:-

"This appeal illustrates the continuing difficulty being experienced in the construction and application of section 120 of the Veterans' Entitlements Act 1986 (the "Act"). These difficulties continue to arise despite the clear expositions, one may almost say exegesises, by Justices of the High Court in cases such as Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. It is most important that the decision maker, in considering the construction and application of section 120, adopts the proper methodology. If that is not done, there is a real danger that the decision may be affected by error. It is accepted that the Court, in considering an appeal on a question of law under the Administrative Appeals Tribunal Act 1975, should not look too critically at the modes of expression used by members of the Tribunal. At the same time, care must be taken to ensure that imprecise expressions of view do not prevent the Court from concluding that errors of law do in fact exist. It is because of the apparent conflict between these principles that it is important that the proper methodology be adopted. This will assist the decision maker as well as the Court in reaching the correct conclusions. At the same time the mere recital of a formula will not be sufficient to obscure an error of law."

11. As in the present case, there the Repatriation Commission contended that the decision of the Tribunal was based upon a question of fact and did not raise any question of law. After referring to this, the Court continued:-

"Counsel for the Commission contended that those findings constituted questions of fact and could not constitute an appeal on a question of law. Since the hearing of the appeal, the High Court, in refusing special leave to appeal, has identified the difference between a question of fact and a question of law in cases where section 120 of the Act has application. In Repatriation Commission v Owens (1996) 70 ALJR 904, the High Court constituted by Brennan CJ, Gaudron and Gummow JJ, refused special leave to appeal from the judgment in Owens v Repatriation Commission (1995) 59 FCR 559. The reasons of the High Court were expressed by Brennan CJ as follows: "Section 120(3) of the Veterans' Entitlements Act 1986 (Cth) specifies the condition on which the Commission is to be satisfied of the negative proposition that there is no sufficient ground for determining that an injury was war-caused or defence-caused. The condition is the formation of an opinion by the Commission on the material before it, that is, the whole of the material before it, that that material does not raise a reasonable hypothesis connecting the injury with the circumstances of the claimant's war or defence service. The question whether, for the purposes of s 120(3) of the Veterans' Entitlements Act 1986, material raises a reasonable hypothesis is a question of fact for it involves no more than a determination whether an hypothesis of connection is reasonable. Here, the Administrative Appeals Tribunal, reviewing the decision of the Commission and exercising the powers conferred by s 120, found that "the circumstances and submissions put before us do not raise a reasonable hypothesis .... connecting [the present respondent's] disease with the circumstances of his war service". The only appeal from that decision lay to the Federal Court but that appeal was limited to a question of law. The purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Administrative Appeals Tribunal. This distribution of function is critical to the correct operation of the administrative review process. Lockhart J correctly perceived that the issue before the Administrative Appeals Tribunal was a question of fact. The Administrative Appeals Tribunal had not simply chosen between two professional opinions but accepted that the actual cause of the claimant's injury, an adenocarcinoma, had been identified and thus any hypothesis was excluded. A majority of the Full Court allowed an appeal from Lockhart J but their Honours seemed to have misunderstood the nature of the issue arising under s 120(3). It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal. Although the applicant has shown a prima facie case of error on the part of the majority of the Full Court, the insertion of ss 120A and 120B by the Veterans' Affairs (1994-94 Budget Measures) Legislation Amendment Act 1994 (Cth) substantially diminishes the ground for seeking special leave to appeal. The problem having been elucidated by this Court in earlier cases, it is not appropriate to grant special leave in this case. For that reason, special leave is refused." In that passage, the reference to the problem having been elucidated by the High Court is a reference, at the least, to Bushell and to Byrnes."

12. After referring to the relevant facts in Prestegar, the Court set out the relevant parts of subsections 120(1) and (3) of the Act and then attempted to analyse the method of applying those subsections. It said:-

"The method of applying subsections 120(1) and (3) can be summarized: (a) Subsection 120(1) is the governing provision but its application depends first on consideration of matters arising under subsection 120(3). (b) The first step is to identify the hypothesis said to establish the causation between the veteran's eligible war service and the death, injury or disease. The process of identifying the proper hypothesis from the material is a question of fact. (c) The decision maker must be satisfied that the hypothesis is reasonable, by reference to the whole of the material, including expert evidence, where applicable. It is important to note, in this context, that subsection 120(3) does not prescribe an onus of proof for an hypothesis and the existence of alternative or conflicting hypotheses is irrelevant. (d) Whether or not the hypothesis is reasonable is also a question of fact, not of law (Gilbert v Repatriation Commission (1989) 86 ALR 712). (e) The decision maker must identify the facts said to provide a basis for the application of the hypothesis and determine whether these have been established in evidence. These are frequently referred to in the cases as the "raised facts". (f) If the decision-maker concludes that the hypothesis is reasonable and supported by the raised facts (even though not required to be proved for this purpose) then the decision-maker must apply subsection (1) on the reverse onus of proof basis beyond reasonable doubt. The true position is illustrated by the following extracts from the joint judgment of Mason CJ, Deane and McHugh JJ in Bushell at pages 414-416: "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. .... So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or amongst scientists ...." "...... a hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or to the known phenomena of nature' (Commissioner for Government Transport v Adamcik (1961) 106 CLR at p.306). Nor can it be reasonable if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous' (East v Repatriation Commission (1987) 16 FCR 517 at p. 532)." "But leaving aside cases of those kinds, the case must be rare when it can be said that a hypothesis, based on raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge." "...... once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient to simply treat the case as governed by the application of s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist (cf. Barca v. The Queen (1975), 133 CLR 82 at p. 105)." The application of the principles is illustrated by Byrnes in the joint judgment of Mason CJ, Gaudron and McHugh JJ at pages 569-571. The following extract appears at p 571: "The position may be summarized as follows: (1)First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) 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."

On reflection, in paragraph (b) the word connection should be used instead of the word "causation"

13. The same principles apply to the present case. In addition, notice is directed to what is said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In a joint judgment, Brennan CJ, Toohey, McHugh and Gummow JJ), after referring with approval to the observation of a Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, that the "reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error", said at 272:-

"These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36): 'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.' "

14. In the present case, it appears that the Tribunal did not identify clearly the hypothesis relied upon by Mr Noble to establish the causation between his eligible war service and his diseases. However, it appears that with respect to the migraine, the Tribunal was not satisfied, upon the whole of the material before it, of any reasonable hypothesis connecting Mr Noble's migraine with his eligible war service.

15. The Tribunal appears to have come to the same conclusion with respect to the hypertension, but here, unfortunately, the reference to "beyond reasonable doubt" does give rise to some uncertainty.

16. The questions of law and grounds of appeal suggest that Mr Noble is seeking to look behind the decision made. In submissions, his counsel referred to the material before the Tribunal and contended that on that material the Tribunal should not have made the decision it did. In order to determine the issue, it is necessary to refer to the reasons for decision of the Tribunal.

17. The reasons for decision illustrate the methodology adopted by the Tribunal. It appears to be correct. In some places the modes of expression used could have been chosen more carefully.

18. The reasons introduced the matter and set out the war service of Mr Noble. Then they recite:-

"The Tribunal is required to make a finding that the veteran's claimed disabilities are war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal shall be so satisfied if the material before it does not raise a reasonable hypothesis connecting the veteran's disabilities with the circumstances of his war service."

19. This statement is correct insofar as it goes. It appears to roll up in one step the two step process so clearly stated in the extract from Byrnes set out earlier in these reasons. In substance, although not clearly expressed, the Tribunal appears to be saying that the Tribunal, as the first step, must consider subsection 120(3) of the Act and to ask "do all or some of the facts raised by the material before the Commission (Tribunal) give rise to a reasonable hypothesis connecting the veteran's injury (or disease) with war service ?" If the answer to that question is in the negative, the Commonwealth is not liable to pay the veteran a pension. If the answer to that question is in the affirmative the Tribunal is required to consider the application of subsection 120(1).

20. The reasons of the Tribunal are then set out under a number of separate headings. The first heading is "Legislation". The reasons state:-

"Section 120 of the Act is well known and does not need repeating here."

21. It is unfortunate that subsections 120(1) and (3) were not set out. Where that is done the difference between them becomes clear. The reasons then make reference to a number of authorities including Bushell and Byrnes. Reference is made to East v Repatriation Commission (1987) 16 FCR 517 and the passage at 532-533 discussing the meaning of the term "reasonable hypothesis". The Tribunal then said:-

"Subsection 120(3) as was pointed out in Bushell is not concerned with choosing between competing hypotheses or determining whether one medical or scientific opinion is to be preferred to another but with whether from the whole of the material before the decision maker there is a reasonable hypothesis that the circumstances of the veteran's operational service are connected with his claimed disabilities. The question for the Tribunal in applying sub-s. 120(3) is whether the material before the Tribunal raises a reasonable hypothesis in the sense discussed in the passages referred to in East."

The last sentence illustrates that the Tribunal, quite correctly, was considering the application of subsection 120(3).

22. The next section is headed "Evidence". It commences with a summary of the material relating to the war service of Mr Noble on which the claim is based. The summary is:-

"The veteran gave evidence of experiencing breathing difficulties in the tropical heat during periods of service in HMAS Shropshire when the ship was closed for action stations and ventilation except to engine rooms was shut down. When the guns were fired causing the ship to vibrate, dust from the asbestos lagging on the pipes was a problem. Breathing difficulties occurred about once a fortnight depending on activity. From time to time he also experienced headaches. When he was discharged from service his nerves were "not the best"."

23. Apart from the fact that counsel for Mr Noble criticised this summary on the basis that no reference was made to the events referred to by Mr Noble which occurred during "gas training" at Scarpa Flow in Scotland during the second World War, the summary appears to be correct. On no view could it be said that any hypothesis was suggested leading to a connection between that "gas training" and the bronchial asthma.

24. The balance of the section under the heading "Evidence" related to the history of Mr Noble after his discharge from the Navy, his employment experiences and his medical condition until his retirement in 1977.

25. The next section of the reasons is headed "Bronchial Asthma". Here the medical opinion did not support the necessary connection between the war service and the bronchial asthma. Subsequent events may have been relevant as an inducer of the disease being medication given as treatment for hypertension. As the Tribunal said:-

"Before this Tribunal the hypothesis advanced on behalf of the veteran was that treatment for hypertension with a Beta-blocking agent (Visken) aggravated development of asthma. Consequently the claim for bronchial asthma is dependent upon the outcome of the claim for hypertension."

26. The next section of the reasons is headed "Hypertension". There was no evidence to suggest Mr Noble suffered from "hypertension" during his war service. He says that he is unsure when hypertension was first diagnosed but believed he was on anti-hypertensive medication during the earlier part of the 1970's.

27. Visken was first prescribed in October 1979. The first record of medication for blood pressure was on 29 December 1976. A medical report at the time of his retirement in June 1977 shows that he had hypertension. The Tribunal then referred to the opinions of medical experts. The opinion of Professor Myers is the most helpful to Mr Noble's claim. The Professor is a vascular surgeon and head of the Department of Vascular Surgery at Monash Medical Centre. He gave a medical report dated 1 January 1995 parts of which were set out in the reasons. In answer to a question in examination in chief he said:-

"Thank you Professor. At any rate, do you fairly hold the view that there is a reasonable hypothesis linking the asthma, migraine and hypertension with his service ?"

The Professor said:-

"Well, I think that there is a reasonable hypothesis, yes."

The Tribunal did not refer to this oral evidence but, immediately before the quotation from the report of Professor Myers dated 1 January 1995, the Tribunal said:-

"He also gave evidence. In a report (12 November 1994) he wrote that he thought a reasonable hypothesis could be raised to associate asthma, migraine and hypertension to the veteran's war service."

28. There was no report dated 12 November 1994. The reference is clearly a reference to the answer given as set out earlier. The Professor at the request of the solicitor for Mr Noble examined the veteran on 17 November 1995 and gave his report arising from that examination on 1 January 1995. The extracts set out in the reasons are taken from that report. Those extracts do not express an opinion as strong as the oral evidence.

29. The Tribunal then referred to other medical evidence but none of this material pointed to a reasonable hypothesis connecting Mr Noble's medical condition with his war service. After quoting from the last of these medical reports, the Tribunal said:-

"Clearly the veteran has suffered from hypertension in the past with variable blood pressure requiring treatment. On the most favourable view it is minimal at the present time and it does not require treatment. This has been the position since 1985."

30. The three paragraphs set out earlier in these reasons follow. The section concludes as follows:-

"It necessarily follows that the hypothesis connecting bronchial asthma with war service via treatment of hypertension with Visken also fails the statutory test."

31. The next section is headed "Migraine". After reviewing the medical material the Tribunal expressed the view with respect to this disease as set out earlier in these reasons. During the course of the hearing of the appeal in this Court, it became evident that this conclusion could not be challenged. Counsel for Mr Noble expressly announced he did not pursue this claim.

32. In Prestegar, the Court allowed the appeal despite the submission that no question of law was involved. The Court did so for the following reasons:-

"From a reading and re-reading of the relevant parts of paragraph 10 of the reasons of the Tribunal, the Court is satisfied that the Tribunal did not adopt the correct methodology in construing and applying subsections 120(1) and (3) of the Act. The two step procedure so clearly stated by the High Court was not followed. There appears to have been a confusion and stumble between the two steps. There is no clear statement of the hypothesis established from the raised facts. There is no clear statement of the hypothesis established from the raised facts. Is the hypothesis based on exposure to petrol containing benzene? Must that exposure be "heavy"? Must it be "heavy and repeated"? Is the Tribunal's finding that it "is satisfied beyond reasonable doubt that the veteran's exposure could not be described as "heavy" directed to the establishment of the hypothesis under subsection 120(3) or the application of subsection 120(1) ? These doubts are strengthened by referring to the last part of paragraph 10; " .... the Tribunal is satisfied beyond reasonable doubt that for the reasons stated in the instant case the circumstances surrounding the veteran's involvement do not show heavy and/or repeated exposure. Accordingly, the hypothesis connecting this war service with the multiple myeloma condition is not able to succeed". The Court does not accept the contention made on behalf of the Commission that the appeal to this Court is on a question of fact only. It is not clear what finding of fact had been made. The correct methodology had not been applied. This involves a question of law. It is unsafe in law to permit the decision to stand."

33. In the present appeal, the Court is able to conclude that the reasons of the Tribunal did not involve an error of law.

34. The Tribunal expresses the view of Professor Myers that he thought a reasonable hypothesis could be raised to associate asthma, migraine and hypertension to the veteran's war service. The Tribunal accepted the proposition that stress is a factor in the development of hypertension. The Tribunal then expressed opinions that, on one view, were directed to the application of subsection 120(3), namely:-

"Whether the development of hypertension in the veteran's case is linked to stress on service is another question. In my opinion the facts point inevitably to the conclusion that hypertension developed in the mid 1970's about the time the veteran was under considerable workplace stress as mentioned earlier in these reasons."

35. The Tribunal was considering whether all the material before the Tribunal pointed to a reasonable hypothesis establishing a connection between Mr Noble's eligible war service and his hypertension. The hypothesis propounded depended upon the time between the stress occurring and the onset of the hypertension. The passage just quoted relates to whether an hypothesis which does not take into account that lapse of time can be said to be reasonable. This is made clear by the reference to the fact that the hypertension developed in the mid 1970's some 30 years after Mr Noble was discharged from the Navy. This is clarified by the next paragraph:-

"For a reasonable hypothesis to be raised in the sense referred to in the cases, it must be pointed to by the facts. Here there is an absence of facts to support the hypothesis connecting hypertension with the veteran's service. Having regard to the whole of the material I am satisfied beyond reasonable doubt that there is no sufficient ground for a finding that a reasonable hypothesis is raised connecting hypertension with war service."

36. Possibly, if the Tribunal had not included the last paragraph, this appeal would not have been brought. That paragraph appears to combine part of the wording of subsection 120(1) with part of subsection 120(3). It would have been preferable to have said that after the consideration of the whole of the material before it, the Tribunal is of the opinion that that material does not raise a reasonable hypothesis connecting the hypertension of Mr Noble with the circumstances of the particular service rendered by him (subsection 120(3)). Therefore in applying subsection 120(1) the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making the determination sought by Mr Noble under Part II of the Act. This long formulation does not need to be included in every case but it does illustrate the methodology that should be used.

37. In the present appeal, the Tribunal, in the last paragraph, appears to have summarised the effect of the application of the two subsections 120(1) and (3) and in so doing has to some extent misstated the legal position. No question of onus of proof arises in forming an opinion on whether the facts point to a reasonable hypothesis. If the Tribunal had said that none of the material before it gave rise to a reasonable hypothesis connecting Mr Noble's hypertension with his war service, there could have been no objection taken. In my opinion, this conclusion is implicit in what he did say. At this stage, no degree of proof is required. What the Tribunal said was:-

"Having regard to the whole of the material I am satisfied beyond reasonable doubt that there is no sufficient ground for a finding that a reasonable ground for a finding that a reasonable hypothesis is raised connecting hypertension with war service."

38. In its context, the application of the onus "beyond resonable doubt", although misconceived, could only have operated in favour of Mr Noble.

39. The question whether, for the purposes of subsection 120(3) material raises a reasonable hypothesis is a question of fact for it involves no more than a determination wehther an hypothesis of connection is reasonable. In my opinion, on a proper reading of its reasons, the Tribunal did form the opinion that on all the material there was no such reasonable connection. Having regard to the opinions expression in Owens and in Wu, it is not for this Court, under the guise of a question of law, to interfere with a decision of the Tribunal on a question of fact. Counsel for Mr Noble has not pointed to any error of law on the part of the Tribunal.

40. Counsel for the Repatriation Commission is not seeking an order for costs if the appeal is dismissed.

41. Accordingly the only order made is that the appeal be dismissed.