Repatriation Commission v Bugg, Ivy Olive

[1983] FCA 157

Re: REPATRIATION COMMISSION
And: IVY OLIVE BUGG
No. G70 of 1982
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Repatriation - war widow's pension - death of former member of armed forces from carcinoma of the pancreas - whether death arose out of or was attributable to war service - cause of cancer unknown - whether medical opinions stated cause nevertheless not war related relevant to be taken into account by Tribunal - Repatriation Act 1920, ss.23, 24, 47, 101, 107VH, 107VL and 107VZZH.

HEARING

SYDNEY

#DATE 27:7:1983

ORDER

1. The appeal be allowed.

2. The decision of the Repatriation Review Tribunal of 15 February, 1982, be set aside and the matter be remitted to the Tribunal to be heard and decided again.

3. The applicant be entitled to apply for an order that the respondent pay its costs of the appeal provided that such application be notified to the Court and the respondent within seven days of today.

JUDGE1

This is an appeal pursuant to s.107VZZH of the Repatriation Act 1920 ("the Act"). The appeal is brought by the Repatriation Commission from a decision of the Repatriation Review Tribunal given on 15 February, 1982, by which it substituted for a decision of the Commission a decision that the Commonwealth was liable to pay a pension under the Act to the applicant (now the respondent) "in respect of the death" of her husband who was formerly a member of the forces within the meaning of s.23 of the Act. There was no explanation as to how it has come about that the appeal to this Court has taken more than 16 months to come on for hearing. There is no delay in the hearing of cases in the Court's list which would explain it.

The deceased was born on 18 January, 1900, and was married to the respondent on 1 July, 1953. He had two periods of war service. He served with the Royal Australian Navy from 11 March, 1918, to 10 March, 1925. Of this period service to 31 August, 1921, is an eligible period of service for the purposes of the Act. The deceased enlisted in the Australian Army on 30 December, 1941, and was discharged on 4 April, 1945. Of this period the period 28 January, 1942, to the date of his discharge is the relevant period.

The sections of the Act under which the deceased himself and the respondent were eligible for consideration for pensions are s.24 and s.101, the first in respect of the first period of service and the second in respect of the later period of service. There are some differences in the way these two provisions, so far as they are relevant, are expressed, but I do not find it necessary to set out the provisions nor to say anything more of the distinction between the two which there is.

This is yet another case where the provisions of para.107VH(2)(a) are in question. Its provisions are similar to those of sub-sec.47(2) which applies in the case of a hearing by the Commission or a Repatriation Board. Paragraph 107VH(2)(a) of the Act provides that 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. These provisions were the subject of the decision of the High Court in Repatriation Commission v. Law (1981) 55 A.L.J.R. 694 The similar provisions of sub-sec.47(2) were considered by Full Courts of this Court in Repatriation Commission v. Byrne (1981) 40 A.L.R. 296 and Lennell v. Repatriation Commission (3 February, 1982, as yet unreported).

In order to understand the matters at issue it is necessary to refer to the medical history of the deceased and to a number of medical opinions. The medical records relating to the deceased's first period of service disclose that he had a number of medical disorders in the years 1918 and 1919. These included rubella and lumbago.

During the deceased's second period of service he developed an anxiety state. His symptoms included irritability, insomnia, anxiety dreams and worries. A report attached to a note dated 1 February, 1945, said that the deceased had complained of these symptoms for seven or eight years and that they had been worse in the last two years. The deceased had apparently been on duty at the time Japanese prisoners of war escaped at Cowra. This had had an upsetting effect upon him. The notes contain a great deal of information about the deceased's nervous condition. He also began to suffer from high blood pressure. He was discharged as medically unfit for further military service on 4 April, 1945.

Thereafter he had employment with the Warringah Shire Council as a labourer.

On 9 January, 1967, the deceased made application for medical treatment and a pension. The disability claimed was a heart condition. The deceased's doctor was said to be a Dr. Odlum. The application was granted. The pension was paid to him throughout the remainder of his life.

In the history which the deceased gave in support of his application he said that he had been treated for high blood pressure for 22 years. He claimed to have had a coronary occlusion two years before. He said he did not drink and smoked only occasionally. He mentioned the history of neurasthenia. He had retired from his employment two years before.

In September and October 1969 the deceased was in hospital following a prolonged episode of chest pain. He was treated for ischaemic heart disease.

On 14 September, 1977, the deceased was admitted to the Repatriation Hospital at Concord with a recent history of jaundice, dark urine, anorexia and weight loss associated with epigastric pain of an intermittent nature. After some tests a laparotomy was performed on 21 September, 1977. The deceased was found to be suffering from -

1. Obstructive jaundice secondary to carcinoma of the head of the pancreas.

2. Liver secondaries (as I understand, cancer of the liver secondary to the cancer of the pancreas).

3. Primary carcinoma of the lung.

4. Atrial fibrillation (i.e. of the heart) controlled with digoxin.

5. Urinary tract infection.

The deceased was discharged on 4 October, 1977. The discharge summary from the hospital contains an account of the treatment given the deceased and details of tests and X-rays which he underwent. Although the summary does not say so in plain terms, it would appear that the deceased's condition was regarded as terminal. According to Dr. Odlum his condition steadily deteriorated over the succeeding months. The deceased died on 12 January, 1978.

The deceased was treated by Dr. Odlum for a period of over 25 years prior to his death. There are some references in the records to reports by Dr. Odlum, but these are of a most sketchy kind.

On 1 February, 1978, the respondent lodged a claim for a pension. A Repatriation Board rejected her application. She appealed to the Commission which disallowed her appeal on 13 October, 1978. On 9 January, 1979, she appealed to the Tribunal. A hearing on 18 March, 1980, was adjourned when the Tribunal, pursuant to s.107VL, referred to the Commission a report from Dr. Odlum dated 8 February, 1980, and requested the Commission to review its decision having regard to the further evidence therein. On 15 December, 1980, the Commission affirmed its earlier decision. The matter was further heard by the Tribunal on the date of its decision, 15 February, 1982. The delay between the lodgment of the appeal and the hearing by the Tribunal is not explained. It may have been connected with a wish, on the part of the respondent's advisers, to await the outcome of the decision in Law's case.

The Tribunal had before it three medical opinions. There was first the report of Dr. Odlum dated 8 February, 1980, which said:

"re BUGG, Charles Lindin (dec'd.)

I have perused the summary of this case and have nothing to add to the quoted parts relating to my medical care of this deceased member. I strongly support the statements of Mrs. Bugg in her renewed appeal against the latest findings of the Repatriation Commission.

My opinion is, that since the cause of cancer of the pancreas is unknown, it cannot be positively stated that the incidence of this disease was not contributed to by his war service, nor that the ingestion of drugs over a long period for the treatment of his accepted disability could not be related to the onset of his disease."

The statements made by the respondent to which Dr. Odlum referred included the following:

"I have been advised by a Medical Practitioner that the cause Carcinoma of the head of the Pancreas is unknown so therefore it cannot be dogmatically stated that it was not related to war service, further it cannot be stated that the Drugs and Tablets taken in connection with my Husband's Heart Condition were definitely not related to the condition that caused his death."

In an earlier statement made on 12 July, 1978, the respondent said,

"You did accept my husband's incapacity with his ischaemic heart disease due to war service in 1966 and amount of tablets he used to take every day to keep his heart going. It is reasonable to assume "that some of those tablets could have got to parts of his body and then something had to go, as there was nothing serious wrong with him as you stated."

The second medical opinion was provided by Dr. Cutner on 8 May, 1978. Dr. Cutner did not see the deceased and his report was for the purposes of s.48 of the Act which sets out a number of specific matters upon which a medical practitioner's opinion is required when he reports on any claim for a pension or other benefit under the Act. The essential parts of Dr. Cutner's report were as follows:

"CAUSE (of death) (as certified)

I (a) Carcinoma of lungs

(b) Carcinoma of liver

(c) Carcinoma of head of pancreas

Carcinoma of the pancreas is a malignant tumour whose cause is unknown. It is commoner in males over the age of 40, in diabetics and in those with pancreatitis, e.g. alcoholic pancreatitis. In this case, cause is unknown."
. . . . . .
"Set out whether, in your opinion, the incapacity from which the member has died resulted from an occurrence that happened during his war or defence service.
ELIGIBILITY PERIODS

11.3.18 31.8.21
28.1.42 4.4.45
Both periods

(1) No. I can find no evidence - Service Documents or elsewhere of any occurrence O/S that would have caused disability from which veteran died.

(2) No. Not manifest O/S."

(O/S stands for on service).
"Set out whether, in your opinion, the incapacity from which the member has died arose out of or is attributable to his war or defence service.
No. In my opinion the disability from which veteran died is not attributable to conditions of service.

(1) State whether, in your opinion, the death has been caused by any accepted or rejected disability or the treatment thereof and the reasons for such opinion.

(2) If the cause of death includes more than one disability, state whether there is any causal relationship between them.

(1) No. In my opinion, disability from which veteran died is not related to A/D (admitted disability) or R/D (rejected disability).

(2) Carcinoma of lung and liver are secondary to carcinoma of pancreas.

Set out whether, in your opinion, the incapacity from which the member has died has been contributed to in any material degree, or has been aggravated, by the conditions of his war or defence service.

ELIGIBILITY PERIODS
11.3.18 31.8.21
28.1.42 4.4.45
Both periods.
No. Not present P.T.E. (prior to enlistment) or prior to second eligible period."

The third opinion is that of Dr. Stockler. She did not see the deceased. Her report is dated 18 July, 1980. She referred to the summary of the files, to the respondent's statement and to Dr. Odlum's report. She did not refer in terms to Dr. Cutner's report but it may have been part of the summary. The essential part of her report is as follows:

"I have read the summary of the files with the 'Decision and Reasons' of the Repatriation Review Tribunal dated 18 March 1980 and the further evidence in the form of a statement from the widow dated 1 January 1979 and a medical report from Dr. L.E. Odlum, dated 8 February, 1980.

1). The primary cause of death was carcinoma of the pancreas in this case. Both the widow and Dr Odlum, based the appeal on the grounds that the cause of the carcinoma of the pancreas is unknown, hence it cannot be positively stated that some incidence or event on service was not contributory in the development of the pancreatic carcinoma, nor that ingestion of drugs for the accepted disability had no influence. This way of thinking is purely conjectural and lacks scientific support.

2). The problem regarding the cause of carcinomas in general has not been solved yet truly. However, long years of world-wide research solved numerous problems and brought a very fair understanding in the pathogenesis of malignant tumors, including a large variety and number of conditions, drugs, foods etc. which have no carcinogenic effect.

3). Carcinoma of the head of the pancreas is reasonably common, especially in males over the age of 50 (there is a very definite male predilection). Approximately 5% of all deaths caused by cancer is pancreatic carcinoma in the United States. The prevalence exceeds carcinoma of the stomach in Western countries.

4). There is a significantly increased risk of pancreatic carcinoma and has been (sic) attributed to and associated with disease of the gall bladder and extrahepatic biliary tree, cigarette smoking, excess consumption of alcohol and diabetes mellitus.

5). Genetically determined predisposition for development of cancinoma is well known, even without known family history. In this case the late Mr Bugg also suffered from primary carcinoma of "the lung, concurrently with the death causing pancreas carcinoma and his father died from carcinoma of the stomach.

6). The late Mr Bugg, according to the available evidence did not consume alcohol (for sure not in excess) and only smoked occasionally. The following causal/contributory factors are evident in this case in the development of the cause of death:

a) Gall bladder and biliary tract disease. He had stones in the gall bladder and in the common bile duct, verified by surgery. This is a recognised factor in the development of the carcinoma of the head of the pancreas.

b) Genetic predisposition, ascertained by the presence of another primary carcinoma (in the lung, although his smoking history does not suggest causal or contributory effect), and by the positive family history.

7). The drug treatment for the A/D Ischaemic Heart Disease does not include carcinogens. There is no evidence of any specific injury or illness on service which could be considered carcinogenic. The general conditions, such as environmental (including dietic, climatic and preventive medications) conditions also had no effect upon carcinogenesis.

8). In the light of the aspects pointed out in the above paragraphs there is no medical ground to substantiate alteration of the previous opinion regarding the relationship of the cause of death to war service."

The material to which I have referred is essentially the material which was before the Tribunal. On 15 February, 1982, it conducted a hearing of the appeal brought on behalf of the respondent. The respondent was represented but not the Commission. The transcript consists almost entirely of argument. However, it was said by the respondent's representative that the deceased had "passed away from carcinoma of the pancreas".

In its decision the Tribunal recited the history of the deceased's service, his date of birth and the fact that the respondent was his widow. It referred to the certified cause of death as appearing in the death certificate, the cause being put compendiously as (a) carcinoma of lungs, (b) carcinoma of liver and (c) carcinoma of the head of the pancreas. There is then a history of the respondent's claim.

Thereafter the Tribunal embarked upon a consideration of the evidence. The Tribunal noted Dr. Cutner's opinion that the cause of carcinoma of the pancreas was unknown. It said that that opinion was supported by Dr. Odlum in his report of 8 February, 1980. There followed the following paragraphs:

"There is no evidence before the Tribunal, although some unsupported speculation has been made by the Applicant and Dr. Odlum concerning the effect of the ingestion of drugs for the member's accepted disability, to refute the Departmental medical officer's opinion on this point. We accept that the cause of carcinoma of the pancreas is unknown.

However the opinions excluding relevant relationships with war service in succeeding paragraphs are rejected since they can have no validity in the absence of a known cause.

On 24 May 1978 a Repatriation Board rejected the claim and said in its reasons for decision that it accepted the opinion of the Departmental medical officer as to the cause of the disease and relationship to service. It noted that there was no opposing medical opinion. It concluded that it was satisfied beyond reasonable doubt that there were insufficient grounds for allowing the claim. In the Tribunal's view, the absence of an opposing medical opinion provides no justification for the acceptance of one which contains an inherent fundamental inconsistency."

The Tribunal then referred to the disallowance of the respondent's appeal by the Commission on 13 October, 1978, and its review and affirmation of that decision on 15 December, 1980, after Dr. Stockler's report had been obtained. The Tribunal then said:

"The further evidence considered by the Commission was a submission by the Applicant that it could not be stated that drugs taken by the member for his accepted heart condition were not related to the condition that caused his death. This view was strongly supported by Dr. Odlum. Also the A/Senior Medical Officer (Appeals) on 18 July 1980 provided an opinion. She sought to refute the opinions of Dr. Odlum and the Applicant, claiming that they were conjectural and lacking in scientific support. She confirmed the absence of any known cause but provided further information about the state of "knowledge of malignant tumours. One risk factor not previously mentioned was disease of the gall bladder and she noted that the member had been so afflicted. The Tribunal notes that the possibility of gall bladder disease being unrelated to war service was not argued. A variation in her evidence was that the lung carcinoma was also primary. The Tribunal notes that this disease has not been excluded from having a relationship to war service."

Reference was then made to the decision of the High Court in Repatriation Commission v. Law (supra) and the Tribunal continued:

"Hence the Commission is faced with the task of proving beyond reasonable doubt that carcinoma of the pancreas, a disease of unknown origin, is not related in a relevant way to the member's war service. This, the Tribunal finds, has not been the approach of the Commission which, if it had accepted the meaning of Section 47 of the Act, would not have led itself to explore and debate matters which can have no relevance when the cause (accepted by the Commission) is unknown.

The Commission's last consideration of the claim was on 15 December 1980, prior to the High Court decision in Law which was handed down on 16 October 1981. Any doubts about 'onus' were dispelled by that decision, yet no move was made by the Commission to intervene as it may, adduce further evidence to the Tribunal or appear before the Tribunal.

Thus the Tribunal had before it virtually no evidence, argument or submission directed to discharging the onus of proof placed upon the Commission. To this is added the further failure to resolve the conflict of opinion between the Departmental medical officer and Dr. Stockler as to whether cancer of the lung was a primary or secondary lesion and if the former to discharge the onus of excluding it.

The Tribunal, acting pursuant to Sections 107VG and 107VH of the Act, is not satisfied beyond reasonable doubt, that there were insufficient grounds for granting the claim."

For the foregoing reasons the Tribunal set aside the Commission's decision of 15 December, 1980.

The Commission by its counsel made three submissions. The first of these was the most fundamental. The others are ancillary only. The submission was that upon a fair reading of the Tribunal's decision it had proceeded by putting aside the opinions of Dr. Cutner and Dr. Stockler because both doctors acknowledged that there was no known cause of cancer of the head of the pancreas which it was said was the immediate cause of the deceased's death. This was treated in the decision as speculation and was said to be irrelevant. The Tribunal then decided that the respondent should succeed because she had established that she was the widow of the deceased, he had had relevant periods of war service and he had died subsequently of cancer, the cause of which was unknown. It was therefore impossible to be satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim.

The Commission relied upon the decision of this Court in Lennell v. Repatriation Commission (supra). It is to be observed that this decision was given on 3 February, 1982, 12 days prior to the Tribunal's decision here in question. No mention of it is made in the decision and it seems unlikely that it was referred to the Tribunal, particularly in the absence of any appearance before it by the Commission. In the course of our joint judgment Northrop J. and I said (pp.14-15):

"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. It over-simplifies the problem and seeks to equate the Australian legislation to that in force in the United Kingdom. In our opinion the decisions in England in Judd v. Minister of Pensions (1966) 2 Q.B. 580 and Coe v. Minister of Pensions (1967) 1 Q.B. 238 have no application in Australia."

The remaining member of the Court was Toohey J. who dissented. But his dissent was not related to any disagreement with the majority in relation to the matter here in question. Before setting out what Toohey J. said, it is necessary to set out the conclusions of a Dr. Harris which are referred to in the relevant part of his judgment. Dr. Harris said (p.6 of the judgment):

"Where a man dies of a condition, of which the cause is not known, it is quite impossible to say with a certainty, that something during his war service may not have caused or played a part in the production of the condition. As a doctor, I am quite unable to state that Mr. Lennell's death was not due to war service, and under these circumstances feel that Mrs. Lennell's claim must be accepted."

The tenor of Dr. Harris's opinion is similar to that of Dr. Odlum in the present case.

The relevant part of the judgment of Toohey J. is as follows (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. Dr. Harris' conclusions upon which the applicant placed much reliance is as much an exercise in syllogistic reasoning as a medical opinion. The Tribunal was entitled to reject those conclusions and it did so. Once those conclusions were rejected there was no medical opinion standing in the way of the Tribunal being satisfied beyond reasonable doubt that Mr. Lennell's death was not due to war service."

Counsel for the respondent did not question the correctness of the dicta in Lennell's case relied upon by the Commission. But he submitted that it was an unfair criticism of the Tribunal's decision to say that it had simply approached the matter in the way contended for by the Commission.

In my opinion the Commission's submission is correct. In the paragraphs of its reasons which I have earlier set out it first accepts that the cause of carcinoma of the pancreas is unknown. The Tribunal said that there was no evidence to refute Dr. Cutner's opinion on this point. The next paragraph is critical. I repeat it. It says, "However the opinions excluding relevant relationships with war service in succeeding paragraphs (that is succeeding paragraphs of Dr. Cutner's report) are rejected since they can have no validity in the absence of a known cause."

There is then the statement in the last sentence of the next paragraph to the effect that the absence of an opposing medical opinion (that is a medical opinion favouring the respondent's case) provides no justification for the acceptance of one which contends an inherent fundamental inconsistency. That statement involves a finding, although the basis of it is not stated, that Dr. Cutner's report contains an inherent fundamental inconsistency. This was a matter which was the subject of much discussion in argument. I am unable myself to perceive what the inconsistency is. If a Tribunal makes a finding of this kind, it is vitally important for it to state in its reasons why the finding is made. Notwithstanding that I have reread Dr. Cutner's report a number of times I have been unable to discern it. Counsel were not able to suggest what the Tribunal had in mind unless it be the statement earlier quoted that carcinoma of the lung and liver were secondary to the carcinoma of the pancreas. Perhaps the Tribunal thought that this statement was inconsistent with the earlier statement of the cause of death which gave in effect three causes, namely, carcinoma of the lungs, liver and pancreas.

It seems to me, however, that it was common ground that the immediate cause of death was carinoma of the pancreas. That was stated by the respondent's legal representative when he appeared before the Tribunal. It is the matter to which Dr. Odlum, the deceased's personal doctor, directs his attention in the report of 8 February, 1980. Moreover Dr. Cutner would presumably have had available to him the discharge summary from the Repatriation Hospital. To a doctor there may well be material in that summary which establishes that the death of the deceased less than four months after his discharge was probably caused by cancer of the pancreas rather than cancer of the lungs or liver.

Furthermore, it should be clear that Dr. Cutner in stating the three cancers as the cause of death was not expressing his own opinion. The form he completed required him to state the cause "as certified", that is as certified in the death certificate. Thus he was not expressing his own opinion but rather stating what was in the certificate. The cause was certified by Dr. Odlum who, for reasons earlier given, did not consider the immediate cause of death to be otherwise than cancer of the pancreas.

However, the question of whether the Tribunal was in error in finding that Dr. Cutner's report contained a fundamental inconsistency is not a question of law; it is a question of fact. For that reason the resolution of the question of whether the Tribunal was incorrect in relation to this matter is immaterial for the outcome of this appeal. What is material is that the Tribunal did not reject Dr. Cutner's opinion only because it thought his report contained an inconsistency. It also rejected his opinion as being material because of its stated view that his opinion could have "no validity in the absence of a known cause".

I have taken generally into account the next paragraph of the decision which I have set out. It merely summarises the effect of Dr. Stockler's opinions. I then come to the last series of paragraphs quoted. The first of these refers to the Commission exploring and debating matters "which can have no relevance when the cause . . . is unknown". There is then the statement that the Tribunal had before it no evidence, argument or submission directed to discharge the onus of proof placed upon the Commission and also a suggested failure to resolve the conflict of opinion between Dr. Cutner and Dr. Stockler as to whether cancer of the lung was a primary or secondary lesion and if the former to discharge the onus of excluding it.

Dr. Stockler stated positively that the primary cause of death was carcinoma of the pancreas. In my opinion there is no apparent conflict between the two doctors. Dr. Cutner was also of that opinion. When he said that carcinoma of the lung and the liver were secondary to carcinoma of the pancreas he was not dealing with whether the cancers were primary or secondary cancers but with the fact, which, as I have said, seems to be common ground, that the primary cause of death was carcinoma of the pancreas.

But these matters relate to questions of fact rather than of law. The important point is that underlying the approach adopted by the Tribunal is the clear view that if the cause of a cancer is unknown it is impossible for the Commission to discharge the onus which rests upon it. In my opinion that approach, which is clearly seen in the second paragraph of the first series of those quoted and at the end of the first paragraph of the third series thereof, reveals an error of law. Because of its view, the Tribunal in the statements to which I have referred, has excluded from consideration opinions on whether or not the cancer was related to war service on the basis that they could not be relevant if the cause was unknown to medical science.

What a tribunal in a case such as this must do is to take into account the entirety of the evidence and material which is before it. After weighing up this material it should ask the question, "Am I satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim?". The matter which needs emphasising is that just because a doctor does not know the cause of a disease he is not prevented from expressing the opinion, as both Dr. Cutner and Dr. Stockler have done here, that the cancer was unrelated to war service. It may well be that in many cases, perhaps in this case itself, a tribunal will, after considering all the material before it, find the onus of proof not discharged. And certainly the fact that the cause is unknown is a relevant factor for it to take into account. But for the reasons given in Lennell's case it will rarely be conclusive. I stress that medical opinions that a disease is not war related may nevertheless be relevant and significant notwithstanding that the doctor is unable to assign a cause for the disease.

Another submission relied upon by the Commission concerned the question of whether an error of law was disclosed by the Tribunal when it referred to the failure of the Commission to resolve the conflict of opinion between Dr. Cutner and Dr. Stockler. I have already referred to this matter and expressed the view that there is no conflict. But, as I have said, the error which I believe the Tribunal's finding discloses is not an error of law. No appeal would lie in respect of it.

The other point was a matter earlier alluded to. It was said that the Tribunal erred in law in failing to direct its mind to whether the respondent's entitlement to a pension arose pursuant to s.24 or s.101 of the Act. I do not regard this as a relevant matter nor do I consider that in this respect the Tribunal's decision disclosed any error of law.

Before I conclude there are two matters that I wish to mention. Firstly, this Court has from time to time indicated that it will not look over-closely at the language of tribunals of fact to see whether there is revealed in some unhappily worded passage an error of law. Decisions should be looked at as a whole and for their substance rather than their form. I make it clear that I have attempted to approach the decision under appeal in this way and that it is only because I conclude, as a matter of substance, that there is the fundamental error which I have found that this appeal will be upheld.

The second matter to which I refer is what may be described as the cry from the Tribunal that it had before it virtually no evidence, argument or submission directed to the question of whether the Commission had discharged the onus of proof placed upon it. I have great sympathy for what the Tribunal has said. If I had been the tribunal of fact, I would have had great reluctance to decide the matters at issue upon the basis of what the Tribunal had before it. To a degree the cure is in the Tribunal's own hands because it has power to call for evidence and could have asked that Doctors Cutner and Stockler be called. I understand that Dr. Odlum is deceased. This course would have given the Tribunal an opportunity of asking the two doctors questions about their opinions and of having explained to it the significance of a number of the matters stated in the discharge summary.

The appeals that came to this Court in Lennell's case and in Byrne's case came from the Administrative Appeals Tribunal. That Tribunal was provided with very great assistance by the calling of distinguished members of the medical profession before it. In the present case the Tribunal had no oral evidence and no real help in the task of understanding fully the significance of the various statements in the medical reports which were before it. I would not wish to suggest anything which may involve the unnecessary slowing down of procedures before repatriation boards and tribunals or to make their task more complex than it is. But it has to be said, as the Tribunal itself acknowledged, that the assistance given it in the present case was minimal and made it very difficult for it to deal with the matter.

In the result the appeal is allowed. The decision of the Tribunal of 15 February, 1982, is set aside and the matter is remitted to the Tribunal to be heard and decided again. I make no order as to costs but give leave to the applicant Commission to apply for such an order provided that application is notified to the Court and the respondent within seven days of today.

SUPPLEMENTARY JUDGMENT

Upon publication of my reasons for judgment in this matter my attention was drawn to sub-sec.107VZZK(2) of the Repatriation Act 1920 which provides that where an appeal is instituted in this Court by the Commission in accordance with s.107VZZH, "the approved costs" of the applicant in connection with the appeal shall be borne by the Commonwealth Sub-section (4) of the section defines the expression "approved costs".

The third order in my reasons for judgment is thus inappropriate. In lieu thereof I substitute an order giving each party liberty to apply in respect of costs as it or she may be advised.