Repatriation Commission v Bishop, Anna Demetruis

[1983] FCA 181

Re: REPATRIATION COMMISSION
And: ANNA DEMETRIUS BISHOP (1983) 77 FLR 277
No. WAG 41 of 1982
Repatriation - Defence and War

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Repatriation - war widow's pension - death of former member of Armed Forces from chronic lymphocytic leukaemia - aetiology of disease unknown - whether death arose out of or was attributable to war service - whether appeal on a question of law - real or rational possibility of relationship between war service and disease - procedures under Act for dealing with claims

Repatriation Act 1920, ss.24AA(1), 24AA(2), 24AB, 27(1)(a), 107VZZH

Defence and War - Ex-servicemen - Pensions - Aetiology of disease unknown - Whether death arose out of or was attributable to war service - Real or rational possibility of relationship - Onus of proof - Repatriation Act 1920 (Cth), s 27(1)(a).

HEADNOTE

Held: Where the aetiology of a disease is unknown it does not follow, as a matter of law, that the body considering a pension claim could not be satisfied beyond reasonable doubt that the disease was not attributable to war service. To assume such a conclusion goes further than the Act and the authorities allow.

Repatriation Commission v Law (1981) 147 CLR 635; Repatriation Commission v Byrne (1981) 40 ALR 296; Lennell v Repatriation Commission (unreported, Federal Court, 3 February 1982), explained.

HEARING

Perth, 1983, July 19; August 5. #DATE 5:8:1983

APPEAL

Appeal from the Repatriation Review Tribunal pursuant to the Repatriation Act 1920 (Cth), s 107VZZH.

R S French and P J Kirby, for the appellant.

R J Meadows, for the respondent.

Cur adv vult

Solicitor for the appellant: B J O'Donovan, Deputy Commonwealth Crown Solicitor.

Solicitors for the respondent: Muir, Williams & Nicholson.

BAG

ORDER

1. The appeal be allowed.

2. The decision of the Repatriation Review Tribunal given on 26 July 1982 be set aside.

3. The respondent's claim be remitted to the Tribunal for determination in accordance with these reasons.

4. The appellant pay the respondent's costs of the appeal to be taxed.

Orders accordingly

JUDGE1

Section 107VZZH of the Repatriation Act 1920 gives to an applicant in a proceeding before the Repatriation Review Tribunal a right to appeal to the Federal Court "on a question of law, from any decision of the Tribunal in that proceeding".

The appellant appeals from a decision of the Tribunal given on 26 July 1982 setting aside a decision of the Repatriation Commission made 20 February 1981 and substituting therefore its own decision that the respondent's claim for a pension under the Act be allowed. Why the matter took so long to reach the Tribunal and thereafter to reach this court does not appear.

There are two grounds of appeal and they read:

"1. The Tribunal erred in law in holding that because the aetiology of a disease was unknown it could not be satisfied beyond reasonable doubt that there was not some relationship between war service and the disease.

2. Upon the facts as found by it, and if it properly directed itself on the law, the Tribunal could not have come to any conclusion other than it was satisfied beyond reasonable doubt that there was no relevant relationship between the death of the Respondent's late husband and his war service".

The respondent disputes that the first ground identifies a question of law. She accepts that, as formulated, the second ground is on a question of law but she argues that the ground has not been sustained. I shall discuss later whether in truth the appeal is on a question of law but that discussion involves some understanding of the background to the decision of the Tribunal.

Leonard Bishop was born on 14 September 1926. On 29 August 1944, while a member of the Royal Australian Naval Reserve, he was mobilised for war service with the Royal Australian Navy for the duration of hostilities. He remained in the Navy until 20 January 1947. He was a stoker and part of his service was on a ship of war engaged in sea going operations beyond the territorial waters of Australia. For that time he was on active service as that term is defined in s.100 of the Act. The particular service was on the Cessnock in 1945 and 1946 in tropical areas including New Guinea, the Solomon Islands, the Phillipines and Japan.

Mr. Bishop had no relevant medical history during his period of enlistment.

However in May 1979 he made a claim under the Act contending that his condition, which had then been diagnosed as chronic lymphocytic leukaemia, was related to his war service. As early as 1958, x-rays of Mr. Bishop's lungs had suggested an early pulmonary tuberculosis and he was admitted to Hollywood Repatriation General Hospital for investigation and treatment. By January 1959 medical opinion was that he had no residual abnormality and he was discharged from treatment. It appears that he had had a lung abscess which had become infected as a complication of rubella. On 3 February 1959 a Repatriation Board rejected Mr. Bishop's claim for a service pension on the ground that he was not suffering from pulmonary tuberculosis.

Although Mr. Bishop later reported that since his discharge from the Navy he had attended numerous doctors "for chest pains, chest infections, throat infections, cramps", the next identifiable step in his medical history occurred late in 1978. On 19 December 1978 he was admitted to Sir Charles Gairdner Hospital on referral from Geraldton because of an elevated white cell count. It was then that the condition of chronic lymphocytic leukaemia was diagnosed. Asked why he considered the conditions of his service to have caused, aggravated or contributed to his then disability, Mr. Bishop referred to the difficult conditions in which he had worked as a stoker "under 130 temperature and without natural healthy conditions of oxygen, sun, fresh air", being continuously in wet clothes and treatment with drugs during the period he was in Hollywood Hospital.

On 10 September 1979 a Repatriation Board rejected Mr. Bishop's claim for a pension by reason of his disability from leukaemia. The basis of the rejection was that the condition was not related to his service in the Navy. A report by Dr. Demetrius expressed the view that "this condition developed in a predisposed person and the cause is unknown".

In its decision rejecting the claim, the Board commented that when Mr. Bishop was discharged from the Navy he was fit and that the examining doctor had found no disability. Leukaemia first manifested itself in 1978, some 31 years after his service. The treatment he received in Hollywood Hospital in 1958-1959 was for a lung abscess, in no way related to the development of the leukaemia.

In September 1979 Mr. Bishop wrote to the Department of Veterans' Affairs to appeal against the decision of the Board, commenting:

"I seize this opportunity to mention that the last year of my service in the Navy on board the 'Cessnock' mainly August/September 1945, we were operating around Japan, when the two atomic explosions took place, and we were at Tokyo Bay when the Treaty was signed on board the 'Missouri'. I would like you to take the above into account as there is more and more established probability supporting the connection between radiations and steep increase of cancer and/or leukaemia cases developing many years later".

On 25 October 1979 the Repatriation Commission disallowed the appeal. It did so having regard to the opinion of a senior medical officer that significant exposure to irradiation from the atomic bomb explosions at Hiroshima and Nagasaki was confined to individuals within 5000 metres of the hypocentre at the time of each explosion and to early post-detonation entrants who entered the devastated cities within the first week after detonation. Furthermore the type of leukaemia resulting from this radiation was myeloid leukaemia, not lymphatic leukaemia. Finally, in the opinion of the senior medical officer, a significant increase in leukaemia from the Japanese explosions was confined to the first twenty to twenty-five years of post-detonation, with a peak in the increase occurring approximately five years post-detonation.

As already mentioned, Mr. Bishop died on 17 July 1980; his cause of death was diagnosed as "chronic lymphatic leukaemia".

Mrs. Bishop then made a claim for a pension on the basis that her husband's death was related to his war service. The claim itself adds little to what had been said by Mr. Bishop when he sought a pension. There is however a letter from a member of the Geraldton RSL which includes this statement:

"She is desirous of having her husband's death accepted as Service related, as he did go into Hiroshima whilst serving in the Navy and it is possible he contacted some radiation".

The source of the reference to Hiroshima does not appear and it is inconceivable that Mr. Bishop would not have mentioned being in Hiroshima, had this in fact occurred.

On 18 November 1980 a Repatriation Board rejected Mrs. Bishop's claim on the ground that her husband's death was not related to his service. The Board had before it medical opinions. Since it is the decision of the Tribunal not of the Board that is the subject of this appeal, it is unnecessary to refer to that evidence except to say that in effect it was that the chronic lymphocytic leukaemia first became manifest in December 1978 and that nothing had occurred during Mr. Bishop's service, in any way related to this condition.

Mrs. Bishop appealed to the Repatriation Commission which on 20 February 1981 disallowed the appeal. She then appealed to the Repatriation Tribunal which on 26 July 1982 allowed the appeal, set aside the Commission's decision and substituted a decision that "the Commonwealth is liable to pay pension to the Applicant in respect of the death of the abovenamed member of the Forces in accordance with Division 1 of the Repatriation Act 1920 on and from 18 July 1980".

In addition to the material available to the Board and the Commission, the Tribunal had a report from Dr. Dougan. The purport of that report was that it was possible that the leukaemic process had been slowly progressive for many years before it was diagnosed in December 1978. Dr. Dougan concluded:

"Thus, since we do not know the cause of chronic lymphocytic leukaemia, and the disease may exist for a long period before diagnosis, we cannot with certainty state that no predetermining factors were operating during the period of service".

The Tribunal's decision contains a review of the material before it, some findings and its ultimate conclusion that the appeal be allowed. The precise terms of the finding are of some importance and I set them out almost verbatim though they were not so numbered by the Tribunal.

1. The Tribunal is satisfied, on the expert evidence of Dr. Brenk, and finds that the member was not affected by radiation so as to induce development of leukaemia some 33 years later.

1. The Tribunal finds that rubella, lung abscess and other unspecified infections and Mr. Bishop's impaired, could not reasonably be related to his war service.

1. The Tribunal is satisfied that it is fanciful to consider that the possible use of petrol would induce acute leukaemia.

1. The Tribunal is satisfied that medical opinion, based perhaps on probability and a common understanding, give a reasonable indication that the ex-member's war service had nothing to do with the onset or development of the leukaemia.

On what basis then did the Tribunal determine that the appeal should be allowed? It did so by referring to the decision of the High Court in Repatriation Commission v. Law (1981) 36 ALR 411 "that the onus of disproof is (a) heavy and it (the onus) rests upon the Commission". The Tribunal continued:

"That onus has not been discharged, not even attempted to be discharged, by the Commission. In fact it had considered the case ten months before the Court decision".

With respect the latter statement is a non sequitur. The fact that Law's case had still to be decided at the time the Board refused Mrs. Bishop's claim does not mean that the Commission may not have assumed an onus; nor does it follow that the Board erred in its approach. Indeed the Board's decision concludes with words which in themselves are consistent with the approach dictated by Law's case:

"In the light of the evidence, the Board is satisfied, beyond reasonable doubt, that there are insufficient grounds for allowing the claim, that the member's death was related to his service".

Having made these comments, the Tribunal continued (and it is this statement that constitutes the first ground of appeal):

"Therefore the Tribunal is obliged, on the ruling of the Court, to find that, where the aetiology of a disease is unknown, that it cannot be satisfied beyond reasonable doubt that there was not some relationship between war service and the disease".

Counsel for the respondent submitted that this statement by the Tribunal was no more than a statement of fact, made having regard to the material before it. I do not accept this submission. Read in context, the Tribunal is expressing as a general proposition derived from Law's case that where there is a claim for a pension based on a disease, the aetiology of which is unknown, it is not possible to exclude relationship between war service and disease, hence it is not possible to be satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. The statement may be right or it may be wrong; that is a matter to be considered. But in my view it is expressed as a proposition of law and one of general application. A challenge to the proposition is an appeal "on a question of law" within s.107VZZH of the Act. In any event once a decision involves a question of law (and the second ground of appeal raises such a question), the whole decision and not merely that question is open to review. Ruhamah Property Co. Ltd. v. Federal Commission of Taxation (1928) 41 CLR 148 at p.151; XCO Pty. Ltd. v. Federal Commission of Taxation (1971) 124 CLR 343 at pp.348,357.

The issue for resolution in this appeal is largely whether the statement of the Tribunal, challenged in the first ground of appeal, reflects a correct assessment of what was said in Law's case and in cases decided subsequently.

In the appellant's submission, "there is no authority for the proposition that in the absence of evidence of a real or rational possibility of a relevant relationship the tribunal cannot be satisfied beyond reasonable doubt that there are not sufficient grounds for the claim".

The appellant was at pains to avoid any suggestion that before a Board, the Commission or the Tribunal any onus, legal or evidential, lay upon a claimant. Any such suggestion must be rejected, having regard to ss.47(2) and 107VH of the Act as construed in Law's case. But, the appellant argued, that is not to say that a dependant's claim for a pension must succeed if no more appears than a death certificate and some evidence that the deceased was a serviceman. In counsel's submission there must emerge from the evidence "a real or rational possibility of a link between the condition which caused death and the war service of the deceased member".

The appellant contended that at each step in the line of decisions constituting Law's case it was apparent that the court accepted the real or rational possibility of a link between the carcinoma from which Mr. Law died and the cigarette smoking that began while he was on war service.

In the judgment of the Full Court of the Federal Court (Repatriation Commission v. Law (1980) 31 ALR 140), reference is made to the need for the Commission and Tribunal "to determine whether Sir Edward Dunlop's report raised a rational possibility that the claim should be granted" (at p.146); in connection with the requirement that death has arisen out of war service, the fact that "a suggested relationship which is fanciful is not sufficient" (at p.150); and in regard to s.101(1)(b) generally, "these possibilities are not fantastic - they are real possibilities" (at p.154). In the High Court Murphy J. stated at p.413:

"It is an error to require that where the onus of disproof lies on one party, the other party must first establish something in the nature of a prima facie case on the issue . . . ".

The appellant did not suggest that the respondent had to establish a prima facie case, only that there must appear a real or rational possibility of the relevant link between death and war service.

Aickin J. commented at p.423:

"In so far as the claimant had to prove anything, she had to establish two things, first that the carcinoma from which her husband died was caused by smoking . . . and second that his smoking had arisen out of or was attributable to his war service . . . ".

I do not think that Aickin J. was referring to any onus that lay on the claimant; that would be inconsistent with the rest of his judgment. His Honour was saying no more than that there need be something from which it is possible to infer the requisite connection.

It must be remembered that in Law's case there was, in the language of Murphy J. at p.413, "formidable support" for the claimant's case. Hence it was unnecessary to dwell on the notion of a real or rational possibility.

Likewise, in Repatriation Commission v. Byrne (1981) 40 ALR 296, there was expert medical evidence of a causal connection between the contraction of malaria and the death of the ex-serviceman. The court said at pp.302-303:

"The matter was one essentially for the Tribunal as the tribunal of fact. We do not regard the hypothesis put forward by Dr. Metcalf and the other witnesses as fanciful. 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".

Thus in Law's case and in Byrne's case there was evidence to support the claim made of a connection between death and war service. Since the Repatriation Act casts the onus upon the Commission of satisfying the Tribunal that it could come to no other conclusion than that it was satisfied beyond reasonable doubt that the claim should not succeed, it was difficult to reach that conclusion unless the evidence pointing to a connection between death and war service could be dismissed as merely fanciful.

Some reference must now be made to Lennell v. Repatriation Commission (unreported decision of Full Court - Northrop, Toohey and Sheppard JJ. - delivered 3 February 1982). In that case an ex-serviceman died from ardeno-carcinoma of the lung. The cause of the cancer was unknown. The weight of medical evidence was strongly against any connection between the carcinoma and the ex-serviceman's war service. Most of that evidence was given at a hearing before the Administrative Appeals Tribunal, whose decision rejecting a dependant's claim for a pension was the subject of appeal to the court. Because, in the view of the majority, the Tribunal had misunderstood an aspect of the medical aspect, the appeal was upheld and the matter remitted to the Tribunal for rehearing.

In the course of their joint judgment, Northrop and Sheppard J. said at p.12:

"Notwithstanding the strength of the medical opinions before the Tribunal, we think there is a real question of whether there was not a real possibility that the deceased's smoking habits were not increased by his war service and that smoking was the cause of the cancer from which he died".

There follows later in the reasons of their Honours a passage which I think should be quoted at length.

"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 would consider such a general approach to be unhelpful and dangerous. It over simplifies the problem and seeks to equate the Australian legislation to that in force in the United Kingdom".

In the course of my judgment in Lennell's case, I said at p.15:

"I do not think it is inconsistent with Law's case to say that it is only remotely possible that an unknown factor was war caused or related to war service and then go on, as the Tribunal did, to conclude 'we consider any such possibility as fanciful or tenuous'. To say that the aetiology of a disease is unknown does not mean that logically war service cannot be excluded. In a particular case the cause of the fatal condition may be unknown but on the material available it is possible to be satisfied beyond reasonable doubt that it was not attributable to war service".

In the light of these decisions it may be accepted that, while there is no onus upon a claimant, there must be something in the material before the Tribunal pointing to a possibility, real as opposed to fanciful, of a connection between death and war service. The question then is - when in the present case the Tribunal felt itself obliged to conclude that where the aetiology of a disease is unknown it could not be satisfied beyond reasonable doubt that there was no relationship between war service and the disease, was that approach consistent with the provisions of the Repatriation Act as construed by the courts?

In the respondent's submission the answer to that question is yes and the answer emerges the more clearly when regard is had to the procedures established by the Act for dealing with claims.

Section 24AA(1) of the Act provides that a claim shall be in accordance with an approved form and shall be accompanied "by such evidence available to the claimant as he considers may support the claim". Sub-section (2) provides that the preceding sub-section "shall not be taken as imposing any onus of proof on a claimant". Where a claim is lodged, s.24AB obliges the Secretary of the Department of Veterans' Affairs to cause an investigation into the matters to which the claim relates. After completion of the investigation the Secretary shall cause the claim to be submitted to a Board "for its consideration and determination". The claim must be accompanied by evidence furnished by the claimant, relevant departmental records and a report of the investigation into the claim.

Each Board is charged with a number of duties which include determining the extent to which the incapacity "arose out of or is attributable to his war service" (s.27(1)(a)).

In the course of this investigation, not only is there no onus upon the claimant but there is no adversary process. There is an investigation of all the material available to the Board.

The respondent's argument continues. In the present case medical evidence that the aetiology of the disease from which the ex-serviceman died is unknown is simply part of the material before the Board following an investigation by the Department. The Board (and later the Tribunal) had then to ask itself:

" . . . is it possible that some factor in the deceased's war service, some relevant factor, caused or contributed to the development of the disease".

From the claimant's point of view, that is as far as the Tribunal need go. It is then for the Commission to satisfy the Tribunal of "the absence of the requisite connection" between cause of death and war service. See Aickin J. in Law's case 36 ALR at p.423.

The respondent accepted what was said in Lennell's case and thereby accepted that, where the cause of the disease from which an ex-serviceman died is unknown, it is open to a Board or the Tribunal to conclude that in the circumstances it is satisfied beyond reasonable doubt that death is not attributable to war service. However, said the respondent, in the present case the Tribunal considered such a result but was not prepared to exclude what was a real possibility that the cause of Mr. Bishop's death was related to his war service.

The Tribunal might well have adopted that approach but I do not think it did so. In my view the Tribunal approached the matter as if it followed, as a matter of law, that where the aetiology of a disease is unknown it could not be satisfied beyond reasonable doubt that the disease was not attributable to war service. That is going further than is warranted by the authorities and further than the Act allows.

Counsel for the respondent suggested that there was a logical contradiction in saying, on the one hand, that the aetiology of a disease is unknown and, on the other hand, that there is no real possibility that it was contributed to by war service. I do not agree. In a particular case it may be possible to say that, although the cause of a particular disease in a particular ex-serviceman is unknown, medical evidence is against its origin as early as the years of World War 2 or against an origin having anything to do with war service or any circumstances connected therewith.

That is the aspect of the case to which the Tribunal adverted in what I have described as its fourth finding but which it then disregarded because of what it thought to be the implications of Law's case. Because the Tribunal approached the matter as if it was answered by a general proposition of law, the first ground of appeal must succeed.

But I do not agree that, if the Tribunal had correctly directed itself on the law, it must have come to the conclusion that it was satisfied beyond reasonable doubt that there was no relevant connection between Mr. Bishop's death and his war service. That is very much a matter for the decision of the Tribunal and, in the circumstances of the present case, I think it would be usurping the function of the Tribunal if I were to substitute a conclusion of my own.

It follows then that the appeal must be allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal for determination in accordance with these reasons.

Since writing these reasons I have read the judgment of Sheppard J. in Repatriation Commission v. Bugg, delivered 27 July 1983. His Honour had to consider some of the questions argued in this appeal; I can find no conflict between his reasons and mine.