Repatriation Commission v Deathe, Daryl James
[1998] FCA 1265
•16 SEPTEMBER 1998
FEDERAL COURT OF AUSTRALIA
VETERANS AFFAIRS – appeal from Administrative Appeals Tribunal – whether lack of evidence before the Tribunal to support a reasonable hypothesis connecting the illness or injury with service - whether procedural fairness had been denied in Tribunal not requiring witness to be called - whether Tribunal followed the proper process in reaching its decision.
Administrative Appeals Tribunal Act 1975 (Cth) s44(1)
Veterans’ Entitlements Act 1986 (Cth)
Stead v State Government Insurance Commission (1986) 161 CLR 141, considered
Kunz v Federal Commissioner of Taxation (1996) 41 ALD 533, considered
Transport Workers Union of Australia v Hansch (Full Court, Industrial Relations Court of Australia, 7 September 1998, unreported), applied
Repatriation Commission v Bey (1997) 149 ALR 721, applied
Prestegar v Repatriation Commission (Northrop J, 14 February 1997, unreported), applied
Repatriation Commission v Nicholson (Gummow J, 17 February 1995, unreported), applied
REPATRIATION COMMISSION v DARYL JAMES DEATHE
VG 74 of 1998
MARSHALL J
MELBOURNE
16 SEPTEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 74 of 1998
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
DARYL JAMES DEATHE
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
16 SEPTEMBER 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The appeal be allowed.
The matter be remitted to the Administrative Appeals Tribunal for hearing and determination according to law before a differently constituted tribunal to the one which made the decision which is the subject of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 74 of 1998
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
DARYL JAMES DEATHE
RESPONDENT
JUDGE:
MARSHALL J
DATE:
16 SEPTEMBER 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This matter is an appeal by the Repatriation Commission (“the Commission”) pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from part of a decision of the Veterans’ Appeals Divisions of the Administrative Appeals Tribunal, (“the AAT”). In its decision the AAT decided that the condition of acne vulgaris from which the respondent, Mr Deathe, suffered, was war-caused, and that “a reasonable hypothesis exists connecting (the condition) with (war) service”.
BACKGROUND
Mr Deathe is fifty years of age, having been born on 25 November 1947. He served in the Australian Army from 12 March 1969 to 16 July 1971. He was engaged in operational service and eligible war service, as understood under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), from 16 February 1970 to 4 March 1971, during which time he was in Vietnam.
Prior to enlisting in the army Mr Deathe did not suffer from acne vulgaris but during his service in Vietnam Mr Deathe came to suffer from the condition. The humid conditions in tropical Vietnam, combined with the lack of normal daily hygiene for operational reasons, resulted in broken and bleeding pimples forming on his back and shoulders. Infection set in and the condition of his skin was aggravated by the required carrying of a heavy pack upon his back. After his discharge from the army Mr Deathe treated his condition with Ampicillin. He is still required to continue the treatment to prevent his skin breaking out in acne.
EVIDENCE BEFORE THE AAT
Dr William Edmund Stone, a rehabilitation and occupational physician, gave evidence that Mr Deathe's exposure to Vietnam's tropical climate during war service was linked to the condition of acne vulgaris from which Mr Deathe suffered.
Dr Stone was cross-examined by Mr Rudge, a representative of the Commission. At page 41 of the transcript (application book 103) the following evidence was given:
“Doctor, do you know a specialist named Dr Eric Taft?---Yes.
What speciality is he involved in?---He is a prominent dermatologist.
Right. Dr Taft examined Mr Deathe and his conclusion was: Whilst hot and humid conditions together with trauma of army equipment may have certainly aggravated the problem at least in its early stages, its perpetuation a quarter of a century after his war service would indicate that the condition is basically hormonal in origin and not related to the period of war service. Would you accept that opinion?---Well, I would have been of a different opinion but at the same time I have much respect for the reputation of Dr Taft who is one of the more prominent and highly thought of dermatologists in Melbourne but I would have thought that if it started there, what was different about his hormones in the tropics, you know, I don’t quite understand if it was hormonal why did it first occur on his body in the tropics.”
THE AAT'S REASONING
At pars 29 and 30 of its decision the AAT summarised the evidence of Dr Stone in the following way :
“With respect to the acne condition, Dr Stone believed that a reasonable hypothesis existed connecting service with the occurrence of acne. Having been made aware that Dr Taft – who Dr Stone regarded as a prominent and eminent dermatologist – had provided a report at the request of the applicant dismissing a connection with service, Dr Stone said that whilst he respected the opinion of Dr Taft, he nonetheless maintained that a reasonable hypothesis continued to exist.
Dr Stone said that he was not familiar with Dr Hoare, who provided a report for the respondent, and despite becoming acquainted with an opinion from Dr Hoare also dismissing a connection with service, Dr Stone continued to maintain his opinion.”
In its conclusion on this issue the AAT said, at pars 39 to 41 of its decision, as follows:
“It is our opinion that the condition of acne vulgaris should be accepted as war-caused. We are satisfied that a reasonable hypothesis exists connecting it with service.
We are aware that Dr Taft, in his report of 17 September 1996, concluded that hot and humid conditions might have “aggravated the problem at least in its early stages”. We are not prepared to accept his opinion that “its perpetuation a quarter of a century after his war service would indicate that the condition is basically hormonal in origin and not related to the period of war service”. Dr Hoare gave a similar opinion.
We are impressed by the applicant’s evidence that he was absent from his base on three occasions, each for 25 or 26 days where he was denied access to washing and bathing facilities. We note that the applicant was engaged in service where he was exposed to hot and humid conditions. We find as a fact that the applicant did suffer from facial acne as a teenager but which had cleared by the time of his enlistment. We are not prepared to find that this condition has a temporal connection with service only and were moved by the applicant’s need to continue to take Ampicillin more than 26 years after discharge and were equally as moved when the consequences of ceasing to take it were graphically described to us by Mr Deathe. We are satisfied therefore that a reasonable hypothesis exists connecting this illness or injury with service.”
THE COMMISSION'S CONTENTIONS AND THE COURT'S RESPONSES
Lack of Evidence to Support a Reasonable Hypothesis
The first contention of the Commission is that the material before the AAT was incapable of supporting the AAT's decision that there was a reasonable hypothesis connecting Mr Deathe's acne vulgaris with the circumstances of his war service. It was contended that the effect of Dr Stone's evidence is that he did not maintain his opinion that there was a connection between war service and acne vulgaris when confronted with the opinions of Dr Taft and Dr Hoare. I have set out above the full text of the relevant portion of the transcript which bears upon this issue. In my view a fair reading of the passage, at page 41 of the transcript, does not show that Dr Stone abandoned his hypothesis that acne vulgaris was war‑caused after being confronted with the contrary view of Dr Taft.
Under cross-examination from Mr Rudge, at page 42 of the transcript, Dr Stone was not asked whether he departed from his hypothesis in light of Dr Hoare's contrary report. He was merely asked whether he accepted that the report contained an opinion “from a specialist eminent in the field" and whether he was a “specialist of skin diseases”. He answered the first question in the affirmative and the second in the negative.
The Commission concedes that a hypothesis connecting a disease with a veteran's war service may be reasonable even though it is opposed to the weight of medical opinion.
In my view Dr Stone did advance, in his evidence, an opinion that Mr Deathe's acne vulgaris was connected to his war service in Vietnam. I am also of the view that a fair reading of the transcript before the AAT reveals that he did not abandon that opinion when confronted with contrary opinions from specialists. Consequently I am of the opinion that the material before the AAT was capable of supporting its decision that there was a reasonable hypothesis connecting Mr Deathe's acne vulgaris with the circumstances of his service in Vietnam.
Procedural Fairness
The Commission also contended that the AAT denied it procedural fairness in the hearing which is the subject of this appeal. It contended that the opinions of Dr Taft and Dr Hoare were critical to the question of whether the whole of the material before the AAT raised a reasonable hypothesis connecting Mr Deathe's condition with the circumstances of his service.
The essential complaint of the Commission concerns the AAT's alleged indication to Mr Rudge that there was no need to call Dr Hoare. It is alleged that in making such an indication, and not informing the Commission that it considered that the existing material pointed to a reasonable hypothesis connecting the relevant condition with the relevant service, the AAT made an error of law of the kind referred to in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 146 to 147 and Kunz v Federal Commissioner of Taxation (1996) 41 ALD 533 at 537 to 538.
It was contended by the Commission that the effect of Stead is that natural justice is denied when a party is encouraged not to make submissions on a disputed question of fact and then that question is decided against that party. Nothing of that kind happened before the AAT. The opinion of Dr Hoare was before the AAT. Further, Mr Rudge asked Dr Stone a question squarely based on it. At transcript page 56, Mr Rudge told the AAT that he was “quite happy to rely on” Dr Hoare's report. In other words, he did not wish to ask him any questions about it. He had the opportunity to insist on his right to call Dr Hoare as a witness before the AAT. Counsel for Mr Deathe informed the AAT that he did not need to cross‑examine Dr Hoare. I do not believe that a fair reading of the transcript before the AAT reveals that the AAT gave any encouragement to the Commission not to make submissions about Dr Hoare's views. Consequently no legal error has been disclosed having regard to the submission of an alleged denial of natural justice in reliance upon the High Court's judgment in Stead.
The Commission contended that the effect of Kunz, a judgment of Jenkinson J, was that the AAT will deny a party natural justice if it admits into evidence a document and then decides that no weight should be given to the document without allowing the party relying upon the document to advance further evidence. The AAT did not decide that no weight should be given to the report of Dr Hoare. It specifically referred to his opinion in par 40 of its reasons as set out above. It did not refuse to give weight to that opinion. It simply failed to accept it, not only having regard to Dr Stone's evidence, but the evidence of Mr Deathe himself, which is summarised in par 41 of its reasons.
I do not believe that the AAT denied the Commission procedural fairness in the matter alleged by it. Additionally, I do not consider that it is clear that the AAT took any view about any of the evidence before it until after its reasons for decision were prepared. In my opinion the AAT did not deny Mr Rudge a reasonable opportunity to present whatever case he wished to put to it. The AAT was not required to do more. See Transport Workers Union of Australia v Hansch, (Full Court, Industrial Relations Court of Australia, 7 September 1998, unreported) - and the cases cited therein at 10-11.
s 120(1) of the Act
The final contention of the Commission was that the AAT failed to consider the question posed by s 120(1) of the Act. That sub-section provides as follows:
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
Subs (3) provides as follows:
“(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”
The Commission submitted that the AAT, having formed the view that the material before it raised the relevant reasonable hypothesis, was required by s 120(1) of the Act to consider whether the existence of a fact required to support the hypothesis was disproved beyond reasonable doubt, or whether the existence of a fact inconsistent with the hypothesis was proved beyond reasonable doubt.
The Commission said that the AAT did not deal with those latter issues, it merely found the existence of the reasonable hypothesis and then decided that the condition was war‑caused. The complaint of the Commission, in essence, is that the opinions of Dr Taft and Dr Hoare were capable of satisfying the AAT beyond reasonable doubt that the condition was not related to service in Vietnam. In particular it was alleged that those opinions were capable of disproving a fact raised by Dr Stone that exposure to a humid environment together with lack of hygiene and the carrying of packs contributed to the condition. The Commission's submission was that in deciding the matter in the way it did the AAT failed to follow the process of decision making referred to in Repatriation Commission v Bey (1997) 149 ALR 721 at 724 to 725 where Northrop ACJ, Sundberg, Marshall and Merkel JJ said:
“The method of applying s 120(1) and (3) is now well established:
(1)One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran’s eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
(2)The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the “raised facts”) and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.
(3)Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
(4)If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
In some cases the hypothesis may assume the occurrence or existence of a “fact”. That itself does not make the hypothesis unreasonable: Byrnes (at CLR 570) and Critch v Repatriation Commission (1996) 43 ALD 574 at 577.”
It was contended on behalf of Mr Deathe, before the Court, that a fair reading of the AAT's decision shows that "negative factors", of the sort referred to in s 120(1) of the Act, were considered and that it could be inferred that the AAT formed the view in effect the hypothesis was not disproved beyond reasonable doubt.
It is critical in determining this issue to focus upon what the AAT actually decided in its decision. Pars 39 to 41 of its decision, set out above, constitute, essentially, the AAT's reasoning process on matters germane to this aspect of the appeal. Par 39 contains the AAT's conclusion that the relevant hypothesis existed. Par 40 dealt with why that was so notwithstanding contrary opinions to that of Dr Stone. Par 41 dealt with the evidence of Mr Deathe and concluded with the following sentence:
“We are satisfied therefore that a reasonable hypothesis exists connecting this illness or injury with service.”
Later, at par 51 of its decision, the AAT said:
“In all of the circumstances we are satisfied that the decision under review, insofar as it related to acne vulgaris, should be set aside and that part of the application be remitted to the respondent with a direction that an assessment of pension with respect to this condition be undertaken by the respondent and pension paid accordingly."
It was submitted on behalf of Mr Deathe that par 51 of the decision showed that all that was required to be taken into account by the AAT, under s 120(1) of the Act, was taken into account. I reject that submission. In my view the AAT did not proceed to the step it was required to take which was identified in the par numbered 4 in the judgment of the Full Court in Bey at 724. Rather, it reached "the third step" referred to in Bey without proceeding to apply s 120(1). It did not specifically examine, as it was required to do, whether one or more of the facts necessary to support the hypothesis was disproved beyond reasonable doubt. Nor did it examine whether the truth of another fact in the material, which is inconsistent with the hypothesis, was proved beyond reasonable doubt, thus disproving the hypothesis.
I am satisfied that "the Tribunal did not adopt the correct methodology in construing and applying subsections 120(1) and (3) of the Act." See Prestegar v Repatriation Commission (Northrop J, Federal Court of Australia, 14 February 1997, unreported). I adopt, with respect, the observation of Gummow J in Repatriation Commission v Nicholson (17 February 1995, unreported), where his Honour said at 7:
“Whilst, as a general proposition, the Court certainly should not be concerned with mere looseness in the terms used by the AAT in reasons for decision, nor with unhappy phrasing of its thoughts (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287) there is weight in the submissions for the Commission. The interrelation between sub-ss. (3) and (1) of s.120 and the steps which are then required of the decision maker to give effect to the scheme of s.120 are vital matters in a case such as the present.”
ORDER:
Consequently the Court orders as follows:
The appeal be allowed.
The matter be remitted to the Administrative Appeals Tribunal for hearing and determination according to law before a differently constituted tribunal to the one which made the decision which is the subject of the appeal.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated: 16 September 1998
Counsel for the Applicant: Mr P J Hanks Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D De Marchi Solicitor for the Respondent: De Marchi and Associates Date of Hearing: 16 September 1998 Date of Judgment: 16 September 1998 (ex tempore, as revised from the transcript)
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