Repatriation Commission v Brooke, Lillian

[1984] FCA 377

37 7

I N THE FEDERRL COURT OF AUSTRALIA )

NEY SOUTH WIILES DISTRICT REGISTRY ) No. G 06 o f 1902

GENERAL D I V I S I O N )

I N THE MATTER OF t h e

R e p a t r l a t l o n	A	c	t	1 9 2 0
BETWEEN:

THE REPATRIATION COMMISSION

A p p e l l a n t

L I L l I A N -- BROOKE

Respondent

O X D B

JUDGE MRKING ORDER: E u a t t J

DATE OF ORDER: Nouember , 22 1984

WHERE MADE' Sydney

THE COURT ORDERS THAT.

1 . The a p p e a l here ln be dismissed

L

0

I U?, l k4.4

2. The decislon of the Repatriation Tribunal made 29 March 1982 be confirmed.

3 .	The Appellant Commission to pay the
Respondent's costs accordance in with
sl07UZZK o f the Repatriation Act 1920.

FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NO. G 86 Of 1982

DIVISION GENERAL )

IN THE MATTER OF the Repatriation Act 1920

BETWEEN :

THE REPATRIATION COMMISSION

Appellant

LILLIAN BROOKE

Respondent

CORAM Evatt J. 22 November 1984

REASONS FOR JUDGMENT

This is an appeal brought by the Repatriation

Commission pursuant to sl07VZZH of the Repatriation Act

1920, (hereinafter called the "Act"). from the decision

of the Repatriation Review Tribunal, (hereinafter called

2

the "Tribunal"), made 29 March 1982 which decision set

aside the Repatriation Commission's decision dated 4

September 1979 and substituted therefor a determination

that the death of Robert Talbot Brooke be accepted under

8 2 4 of the Act as being "related to war service"

effective on and from 9 March 1978.

The Respondent to the Appeal is Lillian Brooke.

the widow of Robert Talbot Brooke (hereinafter called

the. deceased).

For convenience, the decision of the Tribunal

is set out in full:-

"Mr Brooke died on 30 January 1978 and on 9

June 1978 R patriation the C mmission

received a letter from the Applicant, (the

Respondent to this Appeal). claiming that her

husband's death was due to his war service.

A formal claim was subsequently lodged	on 27
July 1978.

The Applicant's claim was rejected by a

Repatriation Board on 20 November 1978 and an

appeal to the Repatriation Commission was

disallowed on 4 September 1979.

The late member was born on 11 August 1899.

He served in the Australian Army on full-time

duty from 27 July 1917 to 13 September 1919

and by reason of this service is eligible for consideration purposes the for of Repatriation legislation under the provisions

of Section 24 of the Repatriation Act 1920.

3

The death certificate in respect of the late

member recorded the cause of death as:

"heart failure due to congestive

cardiac failure: also, carcinoma of

bladder and prostate."

On 26 October 1978 Dr Locke. a departmental

medical officer. provided a report in respect

of the late memberls death. Dr Locke's report

included the following statement:

"He had chronic bronchitis (C.O.A.D.)

due to his smoking habit. He had

generalised	Of	evidence arteriosclerosis - he had ischaemic limb disease requiring amputation for
gangrene. He had angina (ischaemic
heart disease). cancer His of

bladder prostate and caused

haematuria - causing anaemia. It vas

during transfusion that he developed

pulmonary oedama - due to failure of

the heart o cope with the xtra

blood volume. This ettled but he

remained in cardiac failure until he

died.

His death was a combination f

factors - weak heart due to ischaemia and made worse by anaemia resulting

in heart failure - the same as

Congestive cardiac failure in this

instance with symptoms the f

pulmonary ch onic edema. His

bronchitis was a cause also of his

congestive cardiac failure."

In	ansver to the question: "If the cause
of	death includes more than one disability.

state wh ther there is causal any

relationship between them?". Dr Locke vrote:

4

"Yes. The congestive cardiac failure

is part and parcel of heart failure.

Treatment of anaemia from carcinoma of bladder was a cause of the ex-member's congestive cardiac failure."

In its published reasons for disalloving

the Applicant's appeal and refusing the

claim. the Commission said that the medical

officer had expressed the opinion that the

incapacities that resulted in death were

completely unrelated service. o The

Commission went on to state that it

accepted the opinion expressed by the

medical officer as a reasonable explanation

as to the causes of the incapacities that

led to death and the relationship	of those
incapacities to service.

On 15 October 1979 the Applicant lodged an

application for review by this Tribunal of

the Commission's decision of 4 September

1979. The application came on for hearing

by the Tribunal on 27 May 1980. This

hearing adjourned was pursuant to

s107W(l)(b) of the Repatriation Act

pending the outcome of Court cases in

respect of the Repatriation Commission v

Nancv Law.

The application for review came again

before the Tribunal on 29 March 1982. The

Applicant attend not did vas but

represented by Mr F. Hibbett of Sydney

Legacy. MC Hibbett did not ender any

medical evidence on behalf of the Applicant

but submitted that the late member died

5

when his heart failed following a blood

transfusion. administered to correct

anaemia caused by his cancer. The heart

had been weakened by ischaemia. Mr Hibbett

submitted that the claim should have been

accepted because the cause of the cancer

and the ischaemia were unknown in this case.

It is now the duty of the Tribunal. in

accordance with the provisions of sl07VH of

the Repatriation Act, to set aside the

Commission's decision of 4 September 1979,

unless the Tribunal is satisfied beyond

reasonable ther doubt were that

insufficient grounds for granting the

claim. The test to be applied by the

Tribunal is satisfaction beyond reasonable

doubt that the cause of the late member's

death is not related (in the ways specified

in S24 of the Act) to his war service.

This test was considered by the High Court

of Australia in The Repatriation Commission v Nancv Law (1980-1981) 147 CLR 635, 36 ALR

411. It means:

1. In relation to any fact necessary to

establish the relationship, there is an

onus of proof on the Commission to

satisfy the Tribunal beyond reasonable

doubt that the fact does 01 does not

exist.

2. Where the Commission fails to satisfy

this onus, the Tribunal must set aside

the Commission's decision and allow the

claim.

6

The Commissionls case against the claim by this Applicant appears to be founded on the

opinion of Dr Locke. an opinion which the

Commission found be to a reasonable

explanation causes the of of the

incapacities that led to death and the

relationship of those	incapacities	to
service.

In fact, Dr Locke did not give an

explanation of the causes of the

incapacities that led to death. He stated

that in his opinion these incapacities were

not due to war service but he gave no

opinion as to the cause of the late

member's ischaemia, carcinoma of prostate

or carcinoma of bladder.

The reasons given by the Commission for

disallowing the claim do not, in the

Tribunal's view. discharge the onus placed

on the Commission. The Commission stated

that it that the ex-member's service was in any way could find no basis for accepting

responsible for his death. But the Act

does not require that a link between death

and service can be shown. As has been

said, sl07VH requires the Commission to

satisfy the Tribunal beyond reasonable

doubt that there is no such link.

When it did not have before made its decision, the Commission

it any medical evidence

as to the origin or cause of the late

7

memberls cancer. treatment for which Was a

cause of his death. There are probably

causal factor6 here which have yet to be

determined and vhich could	be related to
war service.

In these circumstances, the Tribunal cannot

-	be satisfied beyond reasonable doubt that the late member's death did not arise out of his war service.
accordingly, the Tribunal sets aside the
Commission's decision of 4 September 1979
and substitutes for that decision that the death of Robert Talbot Brooke is accepted
under S 2 4 of the Repatriation Act as being
related to war service. This decision will
have effect on and from 9 March 1978, being
a date accor ance fix d n with
sl07VZG(l)(d) of the Act, that is to say, a
date three months before the day on which the claim for pension was lodged."
On the appeal before this Court coming on for

hearing, the appellant filed Court, in without

objection, an amended Notice of Appeal. The grounds

thereof are set out in full:

1. That the Repatriation Review Tribunal

erred in taking the view that because

the a tiology of the disease (the

treatment of which caused death) was

unknown it could not be satisfied to the

required standard of proof that he

death did not result from any occurrence

that happened during War Service.

2. That the Repatriation Review Tribunal

erred in law in failing to accept the

only uncontradicted medical evidence

before it that "the incapacities that

resulted in death were completely

unrelated to service" and thus to be

satisfied to the required standard that

death did not result from any occurrence

that happened during war service.

3. That the Presiding Member of the

Repatriation Review Tribunal erred in

failing to exercise its povers under

slO'lVZ(1) of the Repatriation Act 1920

to make investigations into the cause of

the late member's ischaemia. carcinoma

of prostate or carcinoma of bladder in

circumstances where it regarded those

matters as important to	the making of a
decision.

4. That the Repatriation Review Tribunal

erred in failing to take into account

the fact that to c nclude that a

member's death ie service related within the terms of e24 of the Repatriation Act requires a more immediate or proximate connection with war service than is required to fit within the terms of 6101 of the said Act and that the standard of proof required is thereby affected.

9

5. That the Repatriation Review Tribunal

erred in law in finding that "There are probably causal factors here which have

I

yet to be determined and which could	be
related to War Service" when there was
no evidence to support that finding."

-The orders sought by the Appellant Commission were:

"1. That the decision of the Repatriation

Review Tribunal be set aside.

2. That he case be remitted to the

Repatriation Review Tribunal to be

heard and decided again.

3. Such further or other Order as the

Court deems fit."

The d ceased's tiles concerning his war

service and treatment received through the Repatriation

Department were before the Board, the Repatriation

Commission and the Tribunal. Such files were also

forwarded to this Court (see slO7VZZJ of the Act and

0.59 1.1 and 0 . 5 3 r.10 of the Federal Court Rules).

The parties had access to the files in order

t o more readily read the photocopied pages of the

Appeal Book herein. It is clear from the files that

the deceased had, for more than ten years prior to his

death, been regularly attending at the Repatriation

Hospital Concord for t eatment of, inter alia,

carcinoma of bladder and carcinoma of prostate. In

10

addition, the deceased	had had his right leg amputated
in March 1973 because	of peripheral gangrene following

vascular breakdown in that leg. The Court did not and

indeed could not endeavour to ascertain what other

relevant additional facts may have been within the

deceased's files, but it is clear that the documents

forming the so called factual matters set out in the

Appeal Book herein are pages from within those files.

Further, it is clear that certain documents within the

-Cileo are not original but are copies of Army records.

There was no evidence to indicate whether such copies

were accurate copies of such original documents or that the said files contained all relevant particulars or

documents held by the Army or other Commonwealth

Departments in respect of the deceased's Army service

or medical treatment thereafter.

As this matter concerned a First World War

Serviceman. 6624. 47 and 107VH of the Act are

relevant. Relevant parts	of these sections as at March
1982 read:

o o s . 2 4 . ( l l Upon the death or incapacity-

(a) of any person, to whom paragraph (a) or

(b) of the definition of "Member of the

Forces" applies, whose death or

incapacity-

(i) results or has resulted from any

occurrence that happened during his	war
service;

(ii) .....

(b) ..... (iii) ....

the Commonwealth shall, subject to this

Act, be liable to pay to the member or

his dependants, or both, as the case

may be, pensions	in	accordance	with
this Division.

11

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, hat

there are insufficient grounds

granting for claim

the application or alloving or

the

appeal. as the case may be.

In a proceeding on a review, the

Tribunal shall have regard to the

evidence that vas 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

vas not before the Commission or

the Board but would have been

relevant to decision in the proceeding before the Commission or the Board. he making of a

On the completion its of

considerarion in a proceeding on

a review-

where the decision the subject of

review the was a decision refusing a claim or application

for pension-the Tribunal shall

set aside the decision u n l e s s it

is satisfied. beyond reasonable

were	there	that	doubt,
insufficient grounds for granting the claim or application: O K
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.
Where the Tribunal sets aside a decision the subject of a review, it shall substitute €or that
decision such decision as the
Tribunal considers to be in accordance with this Act.
( 4 )	. . . . ."

12

It was not in dispute that the deceased had

Served overseas within the meaning of the Act and that

the above sections were the sections applicable to the

Case before the Tribunal.

It was confirmed by Counsel representing the

Appellant Commission that the Orders of the Court sought

on the appeal were those in the Notice of Appeal set out

.earlier herein and that the Commission did not Seek to havg an order of the Court setting aside the decision of the Tribunal (see s107VZZH(5) of the Act).

Since this case was argued before the Court, a

full Court of this Court in the matter of O'Brien v. The ReDatriatiOn C O ~ i s S i O s (1984) 53 ALR 477 has Considered relevant sections of the Act and prior decisions of this

Court and the High Court. The High Court has granted to

the Repatriation Commission leave to appeal against that

Federal Court's decision. which appeal is still pending.

The Court p esently as constituted has

considered the detailed analysis by the me~~bers of the

Court in O'BKien'S Case (particularly Keely and Fitzgerald JJ) of the reasons for judgment in various Federal Court judgments and of the High Court in earlier cases concerning appeals under the Repatriation Act.

After lengthy deliberation the Court is of the view that

the proper course in the present matter is that the

decision of the Tribunal should be affirmed.

I am satisfied that on a proper analysis of the

Tribunal's determination herein it was open to the

13

Tribunal to reach the conclusion that the Repatriation

Commission had not discharged the onus upon it as

provided by 6107VH of the Act as construed by the High

Court in Law's Case and the earlier Federal Court cases

set out in detail in O'Brien's Case.

It is not to the point that the Court as

presently constituted may as a result of hearing medical opinions expressed in other cases or indeed of its own -knowledge be aware of views relative to the aetiology of

carcinomas of certain organs of the human body but in my view it is notorious, especially in the field of

repatriation pensions and workers' compensation. that

medical science was in March 1982 such that evidence

might have been expected to have been led by the

Commission before the Tribunal indicating the range	of
latency periods required before the particular types	of

carcinomas suffered by the d ceased might ave

manifested themselves. There was no evidence that the

particular carcinomas suffered by the deceased must have

been "initiatedb1 no earlier than X years and no later

than Y years before such manifestations so as to prove

beyond reasonable doubt the o Tribunal that such

"initiatortt of the carcinomas must have been subsequent

to the deceased's war service. Again, there was no

evidence to suggest that. in accordance with some

medical science, there was no "occurrencetb during the deceased's war service which, in effect, could have been a "promoter" of the particular carcinomas or that such

"occurrence" must have happened during a time period

outside his war service.

In Lennell v. The ReDatriatiOn Commission, Full

Court of the Federal Court 3/2/1982, (unreported other

than 4 ALN No. 29),all three members of the Court.

(Northrop. Toohey, Sheppard JJ) rejected a submission

14

for the widow, namely, that in every case where a

servicoun died of a disease, the cause of which is

unknom. it necessarily followed that his dependants

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. This submission was

rejected because it was considered that, notwithstanding

that the cause may not be known, it might be possible to

demonotrate that the cause was	not	or	could not have
.been connected with war service.

But here. there was nothing before the

Tribunal. and no attempt was made by the Commission to

place such material before the Tribunal to show that the

cause of the disease was not or could not have been

connected with the deceased's war' service to a degree

that the Tribunal could have been satisfied beyond

reasonable doubt that such cause was not or could not

have been connected with war service. Dr Locke's

certificate indicated what caused the deceased to die

but did not give a reason for the cause of the disease

other than connected with war service. to say that in his opinion i t was not

It is noted that Dr Locke

does not express any reasons for this proposition.

A proper analysis of the reasons of the

Tribunal do not in my view support the Appellant's

claimed expression in its first ground of appeal of the

Tribunal's alleged view regarding the aetiology	of	the
disease and consequently that ground is rejected.

The second ground of appeal is also rejected.

In support of this ground the Appellant Commission

relied upon the decision of the Court in Read v. Nerey

Nominees Ptv. Ltd. 1979 VR 47. In my view it cannot be

said that a tribunal of fact must accept any evidence,

15

be it medical or lay which is uncontradicted especially

if the tribunal considers that such evidence does not

deal with all necessary aspects of the issues before

it. The Act, of course. (see 6107VK). provides that the

Tribunal shall cause to be prepared a written record of

the decision containing a statement of the reasons for

the decision including any findings of fact in relation

to the matter but in my view a fair reading of the

Tribunal's reasons show that the Tribunal has given

-sufficient reasons in respect of the matter complained

of by the Appellant in this ground of appeal . It has

accepted De Locke's opinion as to cause of death but has

indicated that hat opinion was not sufficient o

discharge the onus upon the Commission as to the cause

of the disease which led up to his death.

The third ground of appeal concerns the failure

of the Tribunal to exercise its powers under	s107VZ(1).
That section reads:-

"107VZ(l~ The presiding member in relation

to a proceeding before the

Tribunal may. at any time.

request the Secretary-

(a) f rward further documents in his custody relating to the proceeding; to to Tribunal he

(b) to obtain, and forward to the

Tribunal. further documents

relating to the proceeding; or

(c) to arrange for the making of any

investigation, or any medical

examination. that the presiding

member thinks necessary with

respect to report of that investigation or examination." the proceeding, and

to forward to the Tribunal a

16

The Appellant Commission submitted that *may"

i n the subsection should be read as "must" in the

circumstances of this case. It vas submitted that a

reading of the reasons of the Tribunal showed that the

gravamen of the whole moving force behind the

Tribunal's acceptance of the claim vas that there vas

an unexplained factor. namely. the cause of the

deceased's ischaemia. carcinoma of the prostate and

-carcinoma of the bladder. It was further submitted

that slO'lVZ(1) has to be read in the light	of sl07VG
which reads:-

W The Tribunal. inconducting a proceeding, or the hearing of a proceeding, O K in making a decision in a proceeding, on a review: -

(a)	is not bound by technicalities,
legal forms or rules Of

evidence: and

(b) shall according act o

substantial justice and the

merits and all the circumstances

of the case, and, without

limiting the generality of the

foregoing, shall take into

account any difficulties that,

for any reason. lie in the way of ascertaining the existence of any fact, matter, cause or

circumstance. i luding any

reason attributable to:-

(i) the effects of the passage

of time. including the

effect of the passage of time on the availability of witnesses: or

(ii)	an	absence of, OK a
deficiency in. relevant
official records, including
an absence or deficiency
resulting from the fact
that an occurrence that
happened during the service of a member of the Forces
was not reported to the
appropriate authorities."

17

As I understand the Appellant's submission in

this regard it says that it was incumbent upon the

Tribunal and in particular its presiding member in a

case such as this where there is an apparent gap in the

evidence for the Tribunal to request the Secretary to

obtain further evidence to fill that gap. That is to

say that the Court in those circumstances must construe

the word "may" as meaning "must". The Court was

-directed to Finance Facilities v. Commissioner of

Taxation 127 CLR 106. particularly at 124, see also

parte McGaven Re Birne 46 SR (NSW) 58.

The Federal Court has indicated that the scheme of the Act is not to establish an adversary method of

determining claims and applications. Be this as it may. But I can see nothing in sl07VZ read with or without the provisions of sl07VG whereby a position could be reached

where the presiding member of the Tribunal was obliged

to seek further evidence to f i l l some apparent gap and

that his failure to do so must amount to an error of

law. In the circumstances of this case I am satisfied

that such a position was certainly not reached and this

ground of appeal is rejected.

Turning then to the fourth ground of appeal.

It will be recalled that the Appellant Commission did

not seek an order substituting a decision in its favour

but asked that the matter be referred back to the

Tribunal for this regard it is pointed out that further evidence and consideration. In

on 28 October 1982

(i.e. some little time after the determination of the

Tribunal in the subject matter) S24 of the Act was

amended by 610 of Act No. 100 of 1982. Relevant amendments in effect made the relevant terms of 824 the

.

* 18

samm as 6101 of the Act. Consequently. if the matter

had been r mitted back Tribunal to he for

reconsideration, Tribunal the would then have

reconsidered it in accordance with 624 as so amended.

Accordingly, this ground of appeal was not pressed.

This then leaves the fifth ground of appeal.

The complaint here is the sentence at the end of the

third last paragraph of the reasons of the Tribunal

-which reads:-

"There are probably causal factors here

which have yet to be determined and

which could be related to war service."

In my view this sentence was not a finding of

fact by the Tribunal. In effect it was a "throw-away"

line not referring to factors to be found within the

files of the deceased but a reference to medical science

generally in respect of cancer or carcinogens. The

sentence certainly did not form a basis for any of the

Tribunal's determination.

Accordingly. the appeal herein is dismissed and

the decision of the Tribunal is affirmed. Pursuant to

sl07VZZK of the Act the Appellant Commission is to pay

the Respondent's costs in accordance with that section.

I certify that his and

the S-udee~ preceding pages are a true copy of

the Reasons for Judgment

herein of his Honour Mr

Justice Evatt.

/P!cGt e

Dated 22 November 1984