Repartraition Commisssion v Paul Kupfer
[1982] FCA 160
•06 AUGUST 1982
AND: PAUL KUPFER
No. G46 of 1982
Repatriation
FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.
Repatriation - appeal to Federal Court - question of law - onus of proof - conflicting medical opinions - whether appropriate to remit matter to Repatriation Review Tribunal.Repatriation Act 1920 ss. 27, 101, 107M, 107VH, 107VK and 107VZZH.
SYDNEY
#DATE 6:8:1982
THE COURT ORDERS THAT:1. The appeal is dismissed.
2. The applicant pay the respondent's costs in accordance with s. 107VZZK of the Repatriation Act 1920
This is an appeal by the Repatriation Commission ("the Commission") against a decision of the Repatriation Review Tribunal ("the Tribunal") given in a proceeding for review brought under s.107VC of the Repatriation Act 1920 ("the Act"). It was so treated by the Tribunal and before me.
The Tribunal had reviewed a decision of the Repatriation Board and said that the Board had 'refused a claim ... that incapacity from essential hypertension was service related'. The claim had been made by Mr. Kupfer.
The appeal to this court is under s.107VZZH(1) which provides for an appeal on a question of law. Although this matter is called an 'appeal' it is in the original jurisdiction of the Court.
The relevant subsections of s.107VZZH are:
'(1) An applicant in a proceeding before the Tribunal or the Commission may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
...
(3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with sub-section (1).
(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5) Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.'
I have had some difficulty in deciding how this Court should ascertain precisely what evidence was before the Tribunal. A document entitled 'Appeal Papers' was prepared by the solicitor for the applicant. A bundle of papers, referred to in the index to the appeal papers as 'Documentary Evidence before the Tribunal. A. Repatriation File No. SM 3010, B. Report of Group Captain Nelson', was before me.
These documents were not tendered but both parties treated the appeal papers, the Repatriation File and the report of Group Captain Nelson as being properly before me and I proceeded on that basis. The Repatriation File contained 122 pages. Mr. Kupfer served in the Army in Australia from 2 June 1942 to 11 October 1946, and in the Airforce from 16 April 1958 to 30 August 1976. The period 2 June 1942 to 11 October 1946 is relevant as war service under s.101 of the Act and the period 7 December 1972 to 30 August 1976 is relevant as defence service under s.107M. The only medical evidence relevant to the first period was a report of Dr. Steele, a Departmental Medical Officer. It was before the Commission and the Tribunal.
The reasons for the decision of the Tribunal, extending over 4 pages, did not set out all the facts which the Tribunal might have considered relevant and did not comply with s.107VK(1) in a way that was entirely satisfactory. Sections 107VK, 27, 99, 101, 107H and 107M have the effect of requiring the Tribunal to cause to be prepared a written statement of the decision including, inter alia, the findings on material questions of fact in relation to whether the incapacity has 'arisen out of his war service' or was 'attributable to his war service' within s.101 which deals with the 1939-1945 war, or 'has arisen out of, or is attributable to, his defence service' within s.107M in respect of defence service on or after 7 December 1972. No specific consideration appears to have been given to s.101(1A) or 197M(2).
The reasons do not state whether the Tribunal found that the incapacity resulted from essential hypertension due to the war service period (s.101) or the defence service period (s.107M). Apparently the Tribunal had regard to both periods and it found that 'the Commonwealth is liable to pay pension in respect of incapacity resulting from essential hypertension in accordance with Division 1 of the Repatriation Act 1920, with effect from 1 June 1978 (Sections 101 and 107M _ Repatriation Act 1920)'.
I consider that the Tribunal appears to have relied mainly upon the evidence of Dr. Steele, and it set out certain of his evidence in its decision. Included in what the Tribunal described as the salient features of Dr. Steele's report is the following:
'...
there is no convincing evidence that 'stress' plays a causative role;
...
in the 'present state of medical knowledge', it can be said that the main factors recognised by medical authorities as being of prime importance are (1) an inherited tendency to develop the disease and (2) ageing which, in due course, allows the inherited factors to operate.'
A Tribunal, differently constituted to the Tribunal which ultimately made the decision from which this appeal is brought, had adjourned the hearing to enable Mr. Kupfer to obtain supporting medical evidence from Group Captain Nelson who had been the Commanding Officer of the hospital where Mr. Kupfer had served. Group Captain Nelson was a Principal Medical Officer in the Royal Australian Air Force.
Group Captain Nelson's statement only related to the second period and he expressed the view in writing that: ' Mr. Kupfer was always a most conscientious member and I am convinced that the stress of the situation would have been a contributing cause to his hypertension'. Group Captain Nelson was referring to Mr. Kupfer's service as 'Senior NCO Medical Orderly at No.3 RAAF Hospital Richmore during the years 1972 to 1976'.
The answers to the questions which arise in this appeal are to be found by an examination of the principles laid down in Repatriation Commission v. Law; Lennell v. Repatriation Commission, a decision of the Full Court of this Court given on 3 February 1982 and Repatriation Commission v. Byrne (1981) 40 A.L.R. 296, also a decision of the Full Court of this Court. Repatriation Commission v. Law was first heard by Toohey J., (1980) 29 A.L.R. 64, next by a Full Court of this Court, (1980) 31 A.L.R. 140, and then by the High Court, (1981) 36 A.L.R. 411.
Section 107M(1), which is relevant in relation to the period 7 December 1972 to 30 August 1976, refers to a person '... whose incapacity ... is attributable to, his defence service ...'. The Full Court of this Court in its joint judgment in Law referred to the meaning of the words 'is attributable to ' in s.101(1)(b) of the Act and said at p.151: 'Under s.101(1)(b), it is sufficient to show 'attributability' if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made'. No criticism was made of this view in the High Court. The same reasoning applies to the same words in s.107M(1). Group Captain Nelson has unequivocably stated that Mr. Kupfer's service during the years 1972 to 1976 'would have been a contributing cause to his hypertension'.
Nothing appears to indicate that Group Captain Nelson's opinion is fanciful or one to which regard should not be paid. In the most favourable light to the Commission all that can be said is that there was a firm opinion from Group Captain Nelson and a more detailed opinion, of Dr. Steele which on the view advanced by the Commission, disagreed with the opinion of Group Captain Nelson.
In 1979 the Act was amended to alter the onus of proof. Section 47(2) provides:
'The Commission or a Board shall grant a claim or application, and the Commission shall allow an appeal, unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal, as the case may be.'
Section 107VH of the Act deals with the proceedings before the Tribunal and provides:
'107VH. (1) In a proceeding on a review, the Tribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before the Tribunal in the proceeding that was not before the Commission or the Board but would have been relevant to the making of a decision in the proceeding before the Commission or the Board.
(2) On the completion of its consideration in a proceeding on a review-
(a) where the decision the subject of the review was a decision refusing a claim or application for pension _ the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or
(b) in any other case _ the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made.
(3) Where the Tribunal sets aside a decision the subject of a review, it shall substitute for that decision such decision as the Tribunal considers to be in accordance with this Act and, for that purpose, the Tribunal may exercise all the powers and discretions that are conferred on the Commission or on the Board, as the case may be.
(4) Where the Tribunal does not set aside a decision the subject of a review, it shall affirm that decision."
Aickin J., with whose judgment Gibbs C.J., Stephen and Mason JJ. agreed, said in Law at p.418 in relation to s.107VH:
'Although those sections are not expressed in the same words as s.47, the material provision in s.107VH(2) is identical'.
The Tribunal said in its decision that it was not satisfied beyond reasonable doubt that there were insufficient grounds for granting a claim and it set aside the decision of the Commission. It substituted a decision that the Commonwealth was liable to pay a pension to Mr. Kupfer in relation to the incapacity resulting from hypertension in accordance with Division 1 of the Act with effect from 1 June 1978.
The Tribunal is not bound by technicalities (s.107VG), and its powers include that of taking evidence on oath (s.107VY).
It is clear that the Tribunal may have evidence before it which was not before the Commission (s.107VH(1)) and, where a claim has been refused by the Commission, the Tribunal shall consider all the evidence then before it and it shall set aside the decision of the Commission unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim. (s.107VH(2)).
Although in Law the Tribunal had certain evidence before it which had not been before the Commission, Aickin J. at p.423 said:
'However, when the matter reaches the Review Tribunal the opinion of the Commission is not material, because the only question is whether that Tribunal is satisfied beyond reasonable doubt of the negative proposition that there are not sufficient grounds for granting a pension. In that process the opinion of the Commission is irrelevant'.
Aickin J., at p.423, also set out the way conflicting medical reports should be dealt with:
'Thus a heavy onus was placed upon the Commission to satisfy the Tribunal beyond reasonable doubt of that negative proposition. Although the medical reports were in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong.'
In the case before me the Tribunal said that the medical evidence was of central importance and that it was necessary to examine it closely. It said:
'Clearly, the general aetiological evidence on hypertension indicates that it does not fall into what is sometimes loosely referred to [as] an 'unknown aetiology' category.'
The Tribunal then referred to Betty Lennell v. Repatriation Commission, supra, and said:
'The Tribunal interprets these observations as emphasising the necessity to focus on 'the amount of evidence available'. Hence, if nothing is known of a disease and there is no evidence, the Commission could not discharge its 'heavy onus'. If there is some knowledge i.e. some evidence, as in Lennell and in this application, the Tribunal must consider that evidence within the framework of the law.'
The sentence in the Tribunal's reasons: 'Hence, if nothing is known of a disease and there is no evidence, the Commission could not discharge its heavy onus' is not a correct statement of the law.
In Lennell, supra, the Court considered the way a case should be dealt with where no evidence was available concerning the cause of a disease. At pp.14-15 the majority, Northrop and Sheppard JJ., said:
'Before turning to the second submission we should say something of the applicant's submission that in every case where a serviceman died of a disease, the cause of which was unknown, his dependents were entitled to a pension because it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. We would reject this submission because, notwithstanding that the cause may not be known, it may be possible to demonstrate beyond reasonable doubt that the cause could not have been related to war service. We do not think that that approach ought to succeed here. We are of that opinion because of the amount of evidence which there is concerning the deceased's medical history and war service. We would consider such a general approach to be unhelpful and dangerous."
In the case before me the Tribunal came to the conclusion that the aetiological 'knowledge is imperfect' and that this opened up the possibility of 'an unidentified factor or factors playing a role in the onset of the disease and necessarily and reasonably raises doubts'. It then referred to the uncertainties in Dr. Steele's opinion and noted that that opinion 'did not approach the problem from the viewpoint of negativing war service as a possible cause'.
The Tribunal also said: 'There is, on the evidence, a 'real possibility' that the applicant's incapacity was related to his war service as mentioned above'. The words 'real possibility' were those used by the Full Court of this Court in Law at p.153.
It appears clear that Dr. Steeledid not say that there was no real possibility of stress causing or aggravating hypertension but he said that there was no convincing evidence that emotional stress could produce the disease 'essential hypertension'. He said that he did not consider that emotional stress or disturbance was of significance but he did not exclude it as a possible cause. It appears from Dr. Steele's report that he was asked: 'Set out whether, in your opinion, the incapacity arose out of or is attributable to his elegible period of service', not 'Is there a real possibility that the incapacity arose out of or is attributable to his eligible period of service'. Similarly he was asked 'Set out whether, in your opinion, the incapacity has been contributed to in any material degree, or has been aggravated by the conditions of his Defence Service' and not whether this was a real possibility.
In Byrne, supra, Northrop, Toohey and Sheppard JJ., in a joint judgment dealt with the conduct of proceedings before the Tribunal and said, at p.303:
'The submission to which we do refer is a submission that the Act requires two steps in the process of reaching a decision. The first step, as we understood the argument, places an onus upon an applicant to establish causal connection between the relevant disease and death upon a balance of probabilities. The second involves looking at the whole of the evidence and the determination of the claim in the applicant's favour unless the Tribunal is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. That approach is not a permissible one. There is no first step nor is any onus placed on the claimant to establish causal connection between a disease and death. So much has been determined by each of the judgments delivered in Law's case.'
Section 107M(3)(b) refers to incapacity having 'been contributed to in a material degree' or 'aggravated' by the conditions of the defence service of an applicant. I have not referred previously to this section. If the essential hypertension existed in 1963, as Dr. Steele thought probable, it would be directly contrary to Group Gaptain Nelson's opinion, to hold that s.107M(3) was not applicable. Because of the conclusion which I have reached I do not consider that I need refer to s.107M(2) which deals with incapacity arising out of defence service.
On this basis the only conclusion to which the Tribunal could have come under s.107VH(2) was that it was not satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. Any other decision would have been an error of law. That is clear from the following passage from Repatriation Commission v. Byrne, supra, at p.302:
'In order to have succeeded the Commission would have had to demonstrate that no tribunal, properly directing itself as to relevant matters of law, could have come to any other conclusion than that it was satisfied beyond reasonable doubt that malarial or other tropical infections could not have been the cause of the cancer suffered by the deceased in their later lives.'
The question which next arises is what should this Court do. It is clear that the Tribunal made an incorrect statement concerning the position where nothing is known of a disease.
In Repatriation Commission v. Byrne, supra, the Court said, at p.303:
'We agree that it stands as no more than a possibility but in our opinion the Tribunal was well entitled to take the view, as it did, that the possibility was real and distinct. We should add that, on the assumption that Law's case had been correctly decided in this court, no matter of misdirection was or could have been successfully relied upon.'
In Lennell v. Repatriation Commission, the majority of the Court said at p. 17:
'A court exercising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decisions even if the court feels that the tribunal's language may have a degree of looseness. Certainly it ought not to indulge in an exercise which over-zealously picks the tribunal up in the way it has expressed itself."
I am quite satisfied that, having regard to the clear evidence of Group Captain Nelson, whatever interpretation be placed upon the evidence of Dr. Steele, it was impossible as a matter of law for the Tribunal to reach any conclusion other than that Mr. Kupfer was entitled to a pension.
The Commission, in an amended Notice of Appeal, identified the questions of law to be raised on the appeal but I consider it would not be helpful to set out those grounds and deal with them individually. The three cases which I have cited and, in particular, the passages I have set out, adequately deal with any questions of law which arise in this case.
Although an appeal lies to the Commission for a decision of the Board (s.28) and the Commission may review its own decision (s.31), it is only the applicant who can appeal to the Tribunal where a claim has been refused (s.107VC). However the applicant or the Commission may appeal to this Court on a question of law (s.107VZZH). If the appeal is upheld the Court may make such order as it thinks is appropriate by reason of its decision (s.107VZZH(4)) or remit the case to be heard and decided again, either with or without further evidence by the Tribunal in accordance with the directions of the Court.
There is an appeal from a single Judge of this Court to the Full Court of this Court under s.24 of the Federal Court of Australia Act 1976, and at least by special leave, to the High Court under s.33 of that Act.
I express no view on the question whether, if I were to remit the matter to the Tribunal, it could request the Commission to review its earlier decision under s.107VL.
In Law it was clear that the Tribunal had misdirected itself in various ways, including the serious error of approach concerning the standard of proof, but the matter was not remitted to it for further hearing.
In that case the Tribunal had rejected a claim for a pension and an appeal on a question of law was heard by Toohey J. He reached the conclusion that, on the facts before the Tribunal, the appeal ought to succeed and at p.75-76 said:
'Section 107VZZH(4) and (5) of the Repatriation Act empowers the Federal Court to hear and determine this appeal and to make such order as it thinks appropriate including a power to remit to the Tribunal.
To remit would further prolong this already protracted matter and is unnecessary. There is sufficient material to enable me to conclude that Mrs. Law should receive a pension. That material will enable another court to dispose of the matter if it goes further.
The appeal is allowed and the decision of the Tribunal set aside.'
In that case the appeal by the Commission to both the Full Court of this Court and the High Court was unsuccessful.
Senior counsel for the Commission argued strongly that I should remit the matter to be heard and decided again by the Tribunal and to permit the hearing of further evidence. The result of such an action would be to enable the whole question to be re-examined and fresh medical evidence could be called directed to persuading the Tribunal that Group Captain Nelson's opinion should be disregarded. The scheme of the Act appears to be to ensure that an applicant shall receive any pension to which he is entitled and that successive avenues of appeal are open to him.
It might have been appropriate to consider s.15AA of the Acts Interpretation Act 1901 if I had any doubt about the construction of s.107VZZH(4) and (5) of the Act. At least since the onus of proof was changed in 1979, it is clear that the 'purpose and object underlying the Act' is to ensure that a person making a claim for a pension under ss.24, 101 or 107M, or any one or more of them, shall get that pension unless the evidence before the authority determining the question is sufficient to satisfy it that there is no real possibility that the applicant is entitled.
In my opinion, it would be totally inappropriate to remit the matter to the Tribunal. Were I to remit it to the Tribunal to act without further evidence the only conclusion to which it would come as a matter of law was that to which it came. To remit it permitting further evidence would be extremely inappropriate and would allow the Commission to have the benefit of what could be the equivalent of a fresh trial.
In my opinion this Court should dismiss this appeal in exercise of its powers under s.107VZZJH(4). I consider that at least in the absence of special circumstances this is the appropriate course to take where, if the Tribunal had applied the law properly to the evidence then before it, it must have come to the conclusion to which it came. The fact that the Tribunal misapplied the law does not necessarily require this Court to remit the matter to it to be heard and decided again.
I would dismiss the appeal and order that the appellant pay the respondent's costs in accordance with s.107VZZK of the Act.
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