Repatriation Commission v Byrne, Kathleen Phyliss

[1981] FCA 261

Re: REPATRIATION COMMISSION
And: KATHLEEN PHYLISS BYRNE; DORIS MARY COYLE; ROSE ETHEL McPHERSON; MARY
MARGARET WICKENDEN
Nos. G16-G19 of 1981
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Toohey(1) and Sheppard(1) JJ.

CATCHWORDS

Repatriation - war widow's pensions - deaths of former members of Armed Forces from lymphosarcoma - contraction of malaria and other infectious tropical diseases during war service - whether deaths had arisen out of or were attributable to war service - standard of proof.

Repatriation Act 1920 ss.47, 101, 107 VZZB, 107 VZZH.

HEARING

MELBOURNE

#DATE 9:12:1981

ORDER

THE COURT ORDERS THAT the appeal be dismissed with costs including the costs of the notice of motion herein.

JUDGE1

Pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 the Repatriation Commission has appealed against four decisions of the Administrative Appeals Tribunal ("the Tribunal"). The decisions were given by the Tribunal in respect of four matters referred to it by the President of the Repatriation Review Tribunal pursuant to s.107 VZZB(3) of the Repatriation Act 1920 ("the Act"). In the case of Wickenden the Tribunal unanimously, and in the other cases, by majority, held that it was not satisfied beyond reasonable doubt that there were insufficient grounds for granting the claims; see s.47(2) of the Act.

These are four of the increasing number of cases coming before the repatriation tribunals in which persons claim to be entitled to pensions under the Act as the result of the contracting of cancer by the claimant or by a person upon whom the claimant was dependent. In each case it is said that incapacity or death has arisen out of or is attributable to war service because the incapacity or death was due to a disease or an infection that was contracted and which would not have been contracted but for his being on war service or but for changes in his environment consequent upon his being on war service; see s.101(1)(b) and (1A) of the Act. In the instant cases the claims made on behalf of each of the applicant widows were based on evidence that their husbands during, or as a result of, war service contracted malaria and other infectious tropical diseases. These infections caused or precipitated the form of cancer which each man suffered much later in his life and from which he died. The Tribunal did not find positively that the cancer from which each man suffered was caused by his attacks of malaria. Rather it decided that it could not be satisfied beyond reasonable doubt that they were not.

The legal principles which are involved have been clarified by the recent decision of the High Court in Repatriation Commission v. Law (16 October, 1981, as yet unreported). We refer also to the decisions in the same case of Toohey J. at first instance ((1980) 29 ALR 64) and of the Full Court on appeal from his decision ((1980) 47 FLR 57). The decision of the High Court in Law's case was given after these matters were argued before us.

Although this Court is constituted as a Full Court for the purpose of hearing the appeals, they involve us in the exercise of original rather than appellate jurisdiction. They come to a Full Court because the Tribunal from which the appeals come was presided over by a presidential member; see s.44(3) of the Administrative Appeals Tribunal Act. It should also be mentioned that Law's case did not come to Toohey J. as an appeal from the Tribunal but as an appeal on a question of law from the Repatriation Review Tribunal; see s.107 VZZH of the Act. That circumstance makes no difference to the applicability of Law's case for our purposes. The appeal to us is also on questions of law only.

Shortly before the hearing the respondents in each appeal took out motions seeking the dismissal of the appeals on the ground that they were incompetent. The basis of the application in each case was that the grounds relied upon by the applicant Commission did not disclose that a question of law was involved. The motions were taken out pursuant to Order 52 Rule 18 of the Rules. Order 52 applies to appeals in the strict sense and there is a question as to whether the procedure adopted was appropriate. Nevertheless we heard argument on the motions.

The provisions of Order 53 of the Rules obliged the Commission in each case to state in its notices of appeal the questions of law to be raised (Rule 4(1)(c)(iii)). During the argument which proceeded upon the motions it became clear that the Commission had not raised in its notices of appeal all the questions of law which it wished to argue. Furthermore, some of the questions posed as questions of law seemed really to be questions of fact. At the conclusion of the argument we gave it leave to amend the questions of law in certain respects. We then decided not to deal with the notices of motion but to proceed with the hearing of the appeals.

Notwithstanding the amendments, we remain troubled about the meaning and effect of the questions. But as best we can understand it, the Commission's principal case is that as a matter of law the only conclusion open to the Tribunal was that it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claims. No other finding was reasonably open upon the evidence before it. We take that to be the Commission's case from a reading of question 2(ii), as substituted by the amendment, and 2(iv) as added thereby, and from the way its argument was presented during the hearing. In addition to this matter, the Commission wished to challenge much of what had been decided in Law's case. These submissions were made formally in case Law's case was decided adversely to the respondent in the High Court. In the result it was not. The consequence is that the Commission's submissions in this respect must be rejected.

Before we deal with the submissions which were made, it is necessary to set out in a little detail the matters relied upon by each of the claimant widows in support of their applications for pensions, the course of the evidence before the Tribunal and the grounds of the decision of the majority. The account which follows is in the main taken from their decision.

The decision contains a detailed account of the evidence in relation to malarial attacks suffered by each of the deceased and of the onset, much later in their lives, of cancer. The Tribunal concluded that in each case there was clear evidence of exposure to malarial or other tropical infections during the Second World War together with evidence of attacks of malaria either during that war or after discharge or both. The evidence also established that each of the deceased died many years after the conclusion of the Second World War from a malignancy of the lymphatic system falling within the general description of lymphosarcoma (cancer of the lymphoid cells). There was no challenge before us to those findings.

In the cases which they presented the claimants sought to connect causally the malarial and other infectious diseases suffered by the deceased with the cancerous condition from which each died. In support of their cases they presented evidence from three distinguished scientists. These were Dr. Donald Metcalf, Professor N.F. Stanley and Dr. William Laurie. Dr. Metcalf is the Head of the Cancer Research Unit and the Assistant Director of the Walter and Eliza Hall Institute of Medical Research, Melbourne. Of him the Tribunal said that he was an eminent and internationally respected researcher who had worked on the aetiological mechanisms of lymphosarcoma and related cancers of blood cells for 25 years not only in Australia but also in the United States, Sweden and Switzerland. He has held a number of positions on international committees concerned with cancer research and was, at the time of the hearing before the Tribunal, a member of the World Committee for Research on Leukaemia and Allied Diseases. The Tribunal said that his standing as a leader in the field of cancer research was beyond question.

There followed a lengthy account of Dr. Metcalf's evidence which we do not repeat. Its starting point was that three fundamentals have been established by his own researches and those of others. These are:

1. For most cancers including leukaemias and lymphosarcomas the disease-free interval (latent period) between exposure to initiating causes and development of clinically apparent disease is substantial. Minimum lengths of those periods are measured in years and commonly events 10 to 30 years in advance of clinical disease can be documented as being relevant.

2. Cancers almost never arise as the consequence of a single initiating event or cause. They arise as the consequence of a matrix of inter-acting causative factors, including the genetic make-up of the individual, exposure to external agents, peculiarities in the functional state of various tissues at particular ages and possibly defects in host resistance (defence) systems.

3. It is a well established principle in cancer research that any factor increasing the extensiveness of cell division in a tissue acts as a co-factor in cancer development. For some tissues persistent growth stimulation appears to be sufficient in itself to lead to cancer development but usually other causative factors are required. In the special case of lymphosarcomas persistent growth stimulation can also lead to cancer development by deranging the normal function of these cells in eliminating abnormal, that is pre-cancerous or cancerous, cells.

Dr. Metcalf's next step, based on research to which he referred, was to say that the major growth stimulus for lymphoid cells is exposure to foreign antigens, usually in the form of infections. Tropical infections, particularly malaria, were said to be a massive stimulus for lymphoid cell proliferation and to cause long lasting derangement in the function of these cells. Dr. Metcalf gave very detailed evidence of his reasons for that view.

The Commission attacked Dr. Metcalf's evidence upon the basis that it was no more than an hypothesis not established as clinically true by scientific research anywhere in the world. The attack was based upon scientific views expressed by witnesses called on behalf of the Commission and upon cross-examination. Dr. Metcalf conceded that his views were hypothetical although support for them was to be found in research performed on mice. Of this he said that, in principle, studies in animals usually gave a reliable indication as to the biology of humans although there might be differences in detail. But whilst his opinion was that it was reasonable to argue across species on the basis of biological principle, he conceded that the data obtained from experimentation on mice was "possibly irrelevant". Nevertheless his views were expressed after many years of research and as the considered opinion of a distinguished scientist who had devoted his life to seeking the causes of cancer in human beings.

His evidence was supported, as we have mentioned, by Professor Stanley and Dr. Laurie. Professor Stanley was, at the time of the hearing, Professor of Microbiology at the Queen Elizabeth II Medical Centre within the University of Western Australia. The Tribunal described Professor Stanley as an eminent and highly qualified microbiologist with wide ranging experience as a specialist in cancer research and with extensive experience as a member of and consultant to advisory bodies both national and international concerned with research into the biology of cancer. We do not find it necessary to set out the effect of his evidence.

Dr. Laurie, retired at the time of the hearing, was formerly Director of the State Health Laboratory Services in Perth. He specialised in the field of pathology. He had also specialised in the field of malaria and other tropical diseases. During the Second World War he was concerned with the suppression and treatment of malaria.

Dr. Laurie said that an enlarged spleen was a common feature of chronic malaria although it was possible to have chronic malaria without such enlargement. It is convenient here to mention that the only reference in the records to any of the deceased having an enlarged spleen was in relation to Mr. Wickenden. There was no such record in relation to the other deceased, although, of course, it may be that their spleens did become enlarged during malarial attacks. Dr. Metcalf was under the impression that each of the deceased did in fact have an enlarged spleen.

Dr. Laurie supported Dr. Metcalf and Professor Stanley in their view that there was a connection between malaria and the lymphosarcoma from which the deceased died, but his experience was not of the same order as theirs.

The evidence called for the claimants was countered by that of Dr. G.G. Crane, the senior specialist in charge, Division of Haematology, Repatration General Hospital, Concord, New South Wales, Professor J.N. Lickiss, the Professor of Community Health at the University of Tasmania and physician to the Royal Hobart Hospital and the Repatriation General Hospital, Hobart, Mr. N. S. Stenhouse, the Director of the Medical Statistics Unit at the University of Western Australia, Dr. B.K. Armstrong, an Associate Professor of Medicine at the same University and Dr. J.W. Donovan, an epidemiological specialist employed in the Commonwealth Department of Health, Canberra.

The evidence of these witnesses negated that called for the claimants. Amongst other things Dr. Crane said that single attacks of malaria result in intense but brief antigen release, and intense but brief antibody response. They do not cause prolonged antigenic stimulation, comparable with that experienced by unprotected inhabitants of endemic malarious areas. Dr. Crane further said that a demonstrable antibody response was not produced during the hepatic phase of the infection, as we understand it, the phase important for the purposes of the hypothesis propounded by the claimants' witnesses.

Professor Lickiss concentrated upon the hypothetical and theoretical nature of Dr. Metcalf's evidence. She would concede no more than that further investigation was warranted of the possibility that people with "absolutely unequivocal overwhelming evidence of chronic and persistent antigenic stimulation, with chronically enlarged spleens and with anaemia and the like are subjected to an increased risk of lymphoma". She completely rejected the possibility that tropical service in any way contributed to the development of the lymphosarcoma from which the ex-servicemen died. Without mentioning every facet of it, the balance of the evidence called for the Commission demonstrated that there was no statistical support for Dr. Metcalf's hypothesis. There were studies referred to in the evidence which the Tribunal analysed at length but to which we do not find it necessary further to refer. Amongst other things Dr. Armstrong said that he could not discount Dr. Metcalf's conclusion as a rational possibility, although the balance of medical evidence was against it.

Having reviewed the evidence, the Tribunal discussed the requirements of the legislation and the decisions in Law's case. It referred also to a number of other decisions. There was then discussion of the nature of an hypothesis in scientific research. The Tribunal expressed the opinion that Dr. Metcalf's hypothesis did not yet have the degree of evidentiary support to carry it beyond being an hypothesis which postulates a possible link in the probably multi-factorial chain of causation leading to lymphosarcoma in man. The Tribunal continued:
"It is not an hypothesis which has any unqualified support within the medical profession, as far as the medical literature discloses; and in our view the evidence of Dr Crane and Professor Lickiss is a more accurate indication of the degree of acceptance of Dr Metcalf's hypothesis amongst practitioners treating these diseases than is the evidence of Dr Laurie. It is nevertheless an hypothesis for which there is substantial support on theoretical biological grounds, based primarily but not exclusively on animal experimentation. The validity of that experimental evidence is not denied, but its relevance to man is strongly disputed."

The Tribunal then referred to the fact that, despite their strongly held views that a causal relationship between malaria or other tropical infections and lymphosarcoma had not been shown to exist, all the expert medical witnesses called on behalf of the Commission, with the possible exception of Professor Lickiss, nevertheless acknowledged "that there was a possibility based on theoretical biological grounds that sustained antigenic stimulation of lymphatic tissues might increase the incidence of lymphosarcoma in man".

There followed further analysis of the evidence after which the Tribunal concluded:
"215. In our view, the evidence before the Tribunal justifies a finding that the following facts are real possibilities in each of these cases:-
(1) that the malarial attacks from which each of the deceased ex-servicemen suffered were due to a disease that would not have been contracted but for changes in their environment consequent upon their being on war service;
(2) that as a consequence of intense antigenic stimulation to which their reticulo-endothelial systems were subjected during the third phase of the malarial attacks from which they suffered, target tissues became cancerous;
(3) that the target tissues which thus became cancerous developed after a long period of latency into the particular form of lymphosarcoma from which each ex-serviceman died."
The Tribunal said that each of these possibilities was a real possibility and was not to be dismissed "as merely fantastic".

The final paragraph of the Tribunal's decision was as follows:
"218. If we were required to be satisfied that, on any standard of proof normally invoked in civil proceedings, the suggested causal relationship between malaria and lymphosarcoma in each of these cases had been proved to exist, we would have to say that on the evidence before us we are not so satisfied. But applying the very special provisions of s.47(2) of the Act we are not, on that evidence, satisfied beyond reasonable doubt that the suggested causal relationship does not exist. We are therefore not satisfied beyond reasonable doubt that there are insufficient grounds for granting each claim. In the result, we are of the opinion that each of the claims should be granted. We would set aside the decision of the Repatriation Commission in each case and remit each matter to the Repatriation Commission for reconsideration in accordance with the direction that the Repatriation Commission accept the death of each ex-serviceman as arising out of or attributable to his war service."

The principal attack on the Tribunal's decision, as we have said, is a submission that it was not open to the Tribunal to hold that it was not satisfied beyond reasonable doubt that the suggested causal relationship did not exist. The submission was that, notwithstanding the evidence of Dr. Metcalf, Professor Stanley and Dr. Laurie, the connection between malaria and lymphosarcoma was not established; any suggestion to the contrary, although made by very distinguished scientists, was demonstrated to be nothing more than a possibility based on theory and some inadequate scientific research. It was in essence speculation. Contrary to the decision of the Tribunal it should not have been regarded as more than a fanciful possibility.

In order to succeed the Commission must 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. In our opinion one could not possibly reach that conclusion. 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. 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.

Although this case is of a very different kind from Commissioner for Government Transport v. Adamcik (1961) 106 CLR 292, considerations such as are there mentioned seem to us to support in a general way the conclusion at which we have arrived.

One matter of which we should make special mention is the apparent misunderstanding by Dr. Metcalf in relation to there being evidence that each deceased at or about the time of malarial attacks suffered from an enlarged spleen. There is evidence that only Mr. Wickenden suffered from this condition. We refer, however, to the evidence of Dr. Laurie which establishes that it is not uncommon for persons suffering malarial attacks to have enlarged spleens. The medical records in respect of each deceased appear to have been incomplete. It does not necessarily follow, simply because no reference is made in the medical records to the matter, that the other deceased did not also have enlarged spleens. In this regard it is important to bear in mind the provisions of s.47(1)(b) of the Act concerning difficulties which there may be in ascertaining the existence of facts due to the effects of the passage of time or deficiencies in official records. Furthermore, the Tribunal was aware of Dr. Metcalf's misapprehension in this regard. Nevertheless it reached its conclusion that it was not satisfied beyond reasonable doubt that there were insufficient grounds for granting the claims. Such misapprehension as Dr. Metcalf may have had in relation to three of the deceased having enlarged spleens does not change our view that, as a matter of law, it was open to the Tribunal to reach the conclusion which it did.

As earlier mentioned, other matters relied upon by counsel for the Commission have been decided against it by the High Court in its decision in Law's case. With one exception we do not find it necessary to refer to these submissions which were made formally at a time before the judgment in Law's case had been delivered.

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. We refer to the judgments of Murphy J. and Aickin J. in the High Court. All other judges agreed in the judgment of Aickin J. Murphy J. said (p.4 of the print):
"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 (unless this is required by statute as in the earlier Australian Soldiers Repatriation Act s.45W)."
Aickin J. said (pp 16-17):
"I am satisfied that the operation of that section (s.107VH) does not involve a two-stage process and that it requires that, in relation to any fact necessary to establish entitlement, the Review Tribunal must be satisfied beyond reasonable doubt that the fact does not or did not exist before it can refuse an application or dismiss an appeal by a claimant. The reference in sub-s.(2) to the 'completion of its consideration in a proceeding on a review' is to the entire process of examining the evidence and determining whether the Review Tribunal is satisfied beyond reasonable doubt that each of the factual requirements has not been established. Sub-section (2) then directs the Review Tribunal as to what it must do in the light of its determination, i.e. to set aside the decision if it is not so satisfied, and to uphold the decision if it is satisfied."
The provisions of s.107VH are similar to those of s.47(2) with the result that the same approach must be adopted where it is the relevant section to apply.

For the reasons we have given we are of opinion that each of the appeals should be dismissed with costs. Those costs are to include the costs of the notices of motion in respect of which we otherwise make no order.