Repatriation Commission v Evans, Laurence Trevor

[1983] FCA 404

Re: REPATRIATION COMMISSION
And: LAURENCE TREVOR EVANS (1983) 76 FLR 89
No. V G139 of 1983
Repatriation - Defence and War

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Repatriation - entitlement to pension - incapacity - onus of proof - standard of proof - expert evidence - report of medical practitioner - admissibility of medical evidence led in other matters.

Repatriation (Special Overseas Service) Act 1962 s.6

Repatriation Act 1920 ss.48, 107 VH

Defence and War - Entitlement to pension - Incapacity - Onus of proof - Standard of proof - Expert evidence - Report of medical practitioner - Admissibility of medical evidence led in other matters - Repatriation Act 1920 (Cth), ss 48, 107VH; Repatriation (Special Overseas Service) Act 1962 (Cth), s. 6.

HEADNOTE

The respondent claimed a pension under s. 6 of the Repatriation (Special Overseas Service) Act 1962 (Cth) relating to an incapacity namely a teratoma of the right testis allegedly resulting from an occurrence during service or arising out of or attributable to that service. The Repatriation Review Tribunal had set aside a decision of the Repatriation Commission and substituted a decision that the incapacity of the applicant was accepted as being related to his eligible period of service pursuant to s. 6 of the Repatriation (Special Overseas Service) Act 1962 and that the Commonwealth of Australia was liable to pay the pension in accordance with the Repatriation (Special Overseas Service) Act 1962. The Commission appealed against the Tribunal's decision on a question of law.

Held: (1) Where the view is taken that the aetiology of the incapacity is unknown or in doubt, there must be something in the material which points to a possibility, real as opposed to fanciful, of a connection between the incapacity and the war service if a pension is to be granted.

Repatriation Commission v. Bishop (1983) 48 ALR 461, referred to.

(2) The Tribunal had misconstrued part of the medical evidence.

(3) The Tribunal may have misdirected itself in the way it approache d the matter.

(4) The case should be remitted to the Tribunal to consider the evid ence as a whole afresh.

Consideration of the use that might be made by the Tribunal of expert evidence lead in other cases.

HEARING

Melbourne, 1983, October 31; November 2, 10; December 21. #DATE 21:12:1983

APPEAL.

The applicant appealed on a question of law from a decision of the Repatriation Review Tribunal.

C. N. Jessup, for the applicant.

E. N. Magee, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: T. A. Sherman, Acting Commonwealth Crown Solicitor.

Solicitors for the respondent: John Wilder & Darren Moses.

T.J.G.

ORDER

The Court orders that the decision of the Repatriation Review Tribunal of 31 May 1983 be set aside and that the matter be remitted to the Tribunal to be heard and determined according to law after the hearing of any further evidence the Tribunal in its discretion sees fit to receive.

Orders accordingly.

JUDGE1

In this matter, the Commission appeals on a question of law from a decision of the Repatriation Review Tribunal, 'the Tribunal', made on 31 May 1983 wherein the Tribunal decided:

"that the decision made by the Repatriation Commission on 19 March, 1982, be set aside and for it is substituted the decision that the incapacity of the applicant from Teratoma of Right Testis is accepted as being related to his eligible period of service pursuant to Section 6 of the Repatriation (Special Overseas Service) Act 1962 and the Commonwealth of Australia is liable to pay the pensions payable in accordance with that Act."

The respondent's claim for a pension arose under section 6 Repatriation (Special Overseas Service) Act 1962. It provides:
"(1) Upon the incapacity . . .

(a) of a member of the Forces whose incapacity . . . has resulted from an occurrence that happened during a period of special service of the member . . . ; or

(b) of a member of the Forces whose incapacity . . . has arisen out of or is attributable to special service of the member,

the Commonwealth is . . . liable to pay to the member . . . pensions . . . "

It was not disputed that the respondent's service in South Vietnam between 3 December 1969 and 18 June 1970 constituted "a period of special service" nor that teratoma of the testis diagnosed in 1981 constituted an "incapacity". It was disputed that the teratoma "resulted from an occurrence" during that service, or "arose out of or was attributable to that service".

The Tribunal was required to set aside the decision of the Commission unless it was satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim; see paragraph 107 VH(2)(a) Repatriation Act 1920, "the Act". Counsel for the applicant contended that the Tribunal had misdirected itself as to the standard of proof required and that the Tribunal's decision to set aside the decision of the Commission could not be justified upon the evidence properly before it.

Before the Tribunal were the relevant Department of Veterans Affairs files, service documents, a summary of evidence and a letter from Dr. L. Murphy, a surgeon, dated 9 March 1983. Mr. Evans, the respondent, was represented at the hearing by Mr. E. McCallum of the Returned Services League and gave evidence. A transcript of that hearing is before the Court. The Tribunal was also referred to an extract from the transcript of proceedings before the Administrative Appeals Tribunal in a different matter, namely, Re Lennell v. Repatriation Commission.

When he enlisted in 1967, the respondent had declared that he had not previously suffered and was not then suffering from any significant illness, or injury and his medical classification was Class A. The medical officer had recorded external genitalia as normal. After that date service records disclose, inter alia:
"4.6.1968 . . . This patient was admitted with sudden onset of headache and vomiting. On admission he had a temperature of 102.5 with a few small axillary and groin glands but no other specific abnormality . . .
Has generalised lymphadenopathy . . .

13.6.68 . . .
To go home on 2 weeks sick leave and to complete 2 weeks treatment . . .

20.10.69 . . .
Sebaceous cyst lobe of R.ear for removal Hormonal mastopathy R.breast - present 12/12 - exploration only needed.

3.4.70 . . .
Diagnosis : mastitis Male Breast (R) . . .

10.4.70 . . .
Small breast lump on (R) tender to palpation which he is doing often. He is fixed on the idea of mastectomy."

The respondent was admitted to hospital on 11 May 1970 and was discharged 8 days later. Gynaecomastia of the right breast was diagnosed and a surgical excision biopsy performed.

It was not disputed that the respondent had had a vasectomy in 1973 and the Tribunal made that finding.

In May 1981, after the period of service, embryonal carcinoma and teratoma (mature) of the testis was diagnosed and a radical orchidectomy performed. This was later followed by a bilateral radical lymphadenectomy. The medical history of the respondent at this juncture was summarized in a letter from Dr. Murphy to Dr. Stirling dated 9 June 1981:
"This fellow was admitted to hospital with a six month history of testicular swelling on the right hand side. He had had a previous vasectomy in 1973. His health has otherwise been normal.

He has a past history of being in Vietnam and being exposed to Agent Orange. Subsequent to this Army service a child was born and died at the age of seven days, looked after by the Geelong Hospital paediatricians. His general examination findings were normal. He had a 1.5 cm mass involving the lower pole of the right testis and on 15.5.81 I performed a radical right orchidectomy with preoperative Beta HCG and Alpha-theta protein levels. The diagnosis was confirmed as teratoma with embryonal elements. The diagnosis was confirmed as teratoma with embryonal elements. Subsequent to this a chest x-ray and I.V.P. were normal. A C.A.T. scan revealed multiple lymph nodes in the para-aortic region.

On 1.6.81 a bi-lateral radical lymphadenectomy was performed including the external iliac chains because of his previous vasectomy. His supra-hilar lymph node area on each side was clear. There was macroscopic and microscopic deposits in the para-inferior vena cava and aortic regions. The lymph node in the right iliac fossa region was also positive. Post operative Beta HCG and alpha-theta protein levels have been requested. He has had a stormy post operative course but is now on the road to recovery and due to be discharged in the next three days."
Mr. Murphy later forwarded the following letter, dated 9 March 1983, to the Repatriation Commission:
"I refer to my previous letters as regards this man 9.6.81 who was shown to have a germ cell tumour of the right testicle. This man is progressing satisfactorily after the combination treatment of surgery, cytotoxics and a subsequent laparotomy.

I can only support him in his claim that his time in Vietnam, exposure to Agent Orange and a subsequent child born which died at the age of seven days.

Clinically he is remaining well and all tests remain normal."

In its reasons, the Tribunal, somewhat charitably, stated that Mr. Murphy's letter of 9 March "supports the applicant's claim for a pension without giving reasons for doing so". Specific mention was made of "Agent Orange". In this context it is to be noted that the respondent had stated, inter alia, in his "Statement in support of a claim for medical treatment and pension" in response to the question why he considered the conditions of his service caused, contributed to or aggravated the teratoma:
"On investigation from my Platoon Commander he informed me that we served in areas that had been sprayed with herbicides."

A detailed medical report was submitted by Dr. Dunn. The report, on a standard form, was headed "Report by a medical practitioner on the incapacity of a member of the Forces" and extracted sub-sections 48(1) and (2) of the Act. Thus the form explicitly stated that the medical practitioner was to set out his opinion as to the nature, cause and extent of the incapacity and as to whether that incapacity: " . . .

(i) resulted from an occurrence that happened during his war service; . . .

(iv) arose out of or is attributable to his war service; or

(v) has been contributed to in any material degree, or has been aggravated, by the conditions of his war service." The practitioner is also required, if he entertains any doubt concerning any of those matters, to state that he entertains that doubt and to indicate, as far as practicable, the nature and extent of that doubt.

Dr. Dunn stated that he had studied the records relating to the respondent and had examined him in relation to the claim. Under the heading "Cause", Dr. Dunn had written:

"(b) The cause is obscure but is believed by some authorities to be due to hormonal imbalance, and in some cases to be related to trauma.

(c) In this case the cause is hormonal imbalance. There is no evidence of trauma. There is some evidence of hormonal imbalance. Veteran developed gynaecomastia, (that is enlargement of the breast) on the (R) side. Some degree of gynaecomastia is physiological at puberty in all males, it usually subsides in early adolescence but occasionally persists in one or both sides. In this case it was on only one side, the lump was removed and consisted only of breast tissue. This gynaecomastia had been present for 12 months before surgery on 11.5.70 Ref. F. Med 14."

Dr. Dunn said there was no occurrence that caused the teratoma testis. In considering whether the incapacity arose out of or was attributable to the service he concluded:

"No. There was nothing in the service of the member to which 'teratoma testis' may be related. It is not related to any of the illnesses or injuries suffered during service. The episode of a 'gynaecomastia' whilst being evidence of a hormonal imbalance was not causal in the development of the teratoma and had been manifest for 12 months that is since about May 1969 which is before the eligibility period. The hormonal imbalance was present before the period."

He then proceeded to consider the possible effect of exposure to chemicals. Under the heading "aggravation" he concluded:

"No. Not present prior to 3.12.69. Hormonal imbalance was present but was not aggravated by service."

The weight to be given to that report was essentially a matter for the Tribunal. The Tribunal concluded:
"In brief, that evidence is to the effect that the precise cause of teratoma of right testis is obscure but believed to be due to hormonal imbalance and in some cases, related to trauma. In the Applicant's case it is considered that hormonal imbalance is a factor, the Applicant having undergone breast surgery in May 1970, after a 12 month history of tender slightly swollen right breast."
With respect, it was not stated by Dr. Dunn that hormonal imbalance was merely a factor but that it was the cause of the teratoma, the gynaecomostia being evidence of that imbalance. The Tribunal later commented:
"Certainly the medical evidence on hormonal involvement is strong but that is only one factor in an obscure cause."
This also indicates that the Tribunal had misconstrued Dr. Dunn's evidence.

The inherent difficulty in construing Dr. Dunn's report which, implicit in its reasons, was of some concern to the Tribunal stems from his assessment of the cause of the incapacity which of necessity affects his conclusions concerning the other matters raised in the report. He took as his initial premiss that the cause of teratoma of the testis is "obscure" (defined in the Shorter Oxford Dictionary as "not manifest to the mind or understanding; hidden, doubtful, vague, uncertain . . . "). It was then stated that hormonal imbalance and trauma are believed to be causes of teratoma. Trauma was dismissed as a cause in this case (and this finding appears to have been adopted by the Tribunal after questioning the respondent). There was some evidence, to wit the gynaecomastia, from which Dr. Dunn inferred as a matter of fact and not mere probability that hormonal imbalance was the cause of the incapacity in this case. It appears that the Tribunal may have had some difficulty in determining the weight to be given to this conclusion in the light of the premiss.

In so drawing attention to the contents of Dr. Dunn's report, it is not necessary for the Court to indicate what weight it would give to Dr. Dunn's conclusions nor does it do so. Nor does it accept the submission made by counsel for the respondent that the evidence of Dr. Dunn should be treated as something less than expert evidence, given some lesser weight, because it does not disclose on its face whether or not Dr. Dunn possesses specialist medical qualifications. Dr. Dunn's standing is that of a medical practitioner; he has directed his attention in some detail to the matters required of him under the Act. The report can be judged from its face. It may be judged for its consistency and coherency. It may be weighed against any conflicting medical evidence. There is no evidence before the Court that Dr. Dunn did not possess the qualifications required under the Act; in the absence of such evidence, this Court is not an appropriate forum for a challenge on the ground put forward by counsel for the respondent.

The construction put on Dr. Dunn's report by the Tribunal coloured the latter part of the Tribunal's reasons. To some extent it influenced the Tribunal in its formulation of the test to be applied. That test had been correctly stated early in its reasons. However, in misstating the findings of Dr. Dunn, the Tribunal went on to say:
"The evidence does not exclude to the degree of proof required under the Repatriation Act, other factors that as a real possibility, may be involved in the onset of the condition from which the member suffers."

In this context, the observations made by Sheppard J. and myself in Lennell v. Repatriation Commission, Federal Court of Australia, 3 February 1982, unreported, should be borne in mind:
"A court exercising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decisions even if the court feels that the tribunal's language may have a degree of looseness. Certainly it ought not to indulge in an exercise which over-zealously picks the tribunal up in the way it has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply."

It is trite law that there is no onus, evidential or legal, upon the claimant. Nonetheless, where the view is taken that the aetiology of the incapacity is unknown or in doubt, there must be something in the material which points to a possibility, real as opposed to fanciful, of a connection between the incapacity and the war service if a pension is to be granted; compare Repatriation Commission v. Bishop (1983) 48 A.L.R. 461 at 468 per Toohey J. That is not to say, as the Tribunal did, that should the material before it not admit of a firm conclusion of what factors are involved, a pension must be awarded. Reading the passage as a whole, it appears that the Tribunal may have misdirected itself in the way it approached the matter.

This is not, however, a case where the decision of the Tribunal should be set aside and a decision of this Court substituted therefor. Rather, this is a case which, because of its unusual features, should be remitted to the Tribunal to consider the evidence as a whole afresh, and to determine, in its discretion, whether it should hear further evidence. It may then reconsider Dr. Dunn's report. Further, in the special circumstances of this case it appears to the Court from a reading of the transcript of the hearing before the Tribunal that the Tribunal may have foreclosed evidence on the part of the respondent which could go to a connection between the incapacity and the war service, namely, the effect of exposure to chemicals, whether herbicides or insecticides.

This matter was briefly raised in the letter from Mr. Murphy to the Commission. It formed part of the respondent's claim. It was considered at some length by Dr. Dunn in his report. Although the respondent's representative had declined to press the matter at the hearing before the Tribunal, this occurred only after an indication from a member of the Tribunal that, in his view, evidence of that matter was unnecessary as the Commission had not excluded such a possibility. As noted earlier in these reasons, this does not reflect the test to be applied. At the hearing of the matter before this Court, counsel for the respondent contended that because of the special nature of the hearing before the Tribunal no estoppel could be raised by the applicant which would have the effect of barring reliance on any such evidence. That argument is accepted by the Court. The hearing before the Court proceeded on the basis that exposure to chemicals formed part of the respondent's claim.

However, this Court is not in the position of the Tribunal and should be cautious in making findings of fact in such circumstances. The Tribunal, unlike the Court, is not bound by legal technicalities, legal forms or rules of evidence (s.107 VG); the proceedings before the Tribunal are commonly conducted in part on the basis of written material rather than oral argument, the hallmark of the adversary procedure in this Court. Findings of fact may be made on the basis of written reports and statements from other persons, and the parties' representatives. In the circumstances of this case, the Court therefore declines to make any findings of fact.

One further matter should be noted. It was said by counsel for the applicant that the Tribunal should not have placed reliance on the expert evidence of Professor Tattersall given in re Lennell. That case concerned a different cancer, namely lung cancer, although the excerpted evidence placed before the Tribunal would appear to be of application to cancer generally. It was put forward by the respondent's representative to support an argument that the uncertain times of onset, dormancy and manifestation should be sufficient to instil a doubt in the Tribunal's mind and this argument succeeded. It appears that this argument goes to the question of aggravation rather than a direct connection. This was not a matter fully argued before the Court. Nor in the light of the earlier findings is it necessary that the matter be finally determined.

However, as the matter is to be remitted to the Tribunal, it appears appropriate that some consideration be given to the applicant's submissions. The crux of the matter is whether the evidence is relevant. It appears to be of general application but was presented in the context of lung cancer and not teratoma of the testis. The Court does not know whether any member of the Tribunal possesses specialist medical skill or qualifications which would enable it to determine the relevance of the evidence. In the absence of such medical expertise, due caution should be exercised and, in my opinion, the evidence should not be regarded as relevant of itself. It is true that inevitably the Tribunal will acquire through practice a degree of understanding of these matters. Indeed, the evidence led in re Lennell was familiar to the members of the Tribunal and had been applied in a number of cases. However, mere familiarity does not of itself amount to expertise or skill and the reference to the evidence led in that case, rather than to the general medical propositions, may indicate a lack of such expertise in the Tribunal such that it should, in exercising due caution, have placed no reliance on that evidence.

The order of the Court is, therefore, that the decision of the Tribunal of 31 May 1983 be set aside and that the matter be remitted to the Tribunal to be heard and determined according to law after the hearing of any further evidence the Tribunal in its discretion sees fit to receive.