Repatriation Commission v Glanville
[2010] FCA 405
•30 April 2010
FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Glanville [2010] FCA 405
Citation: Repatriation Commission v Glanville [2010] FCA 405 Parties: REPATRIATION COMMISSION v CATHERINE GLANVILLE File number: NSD 1217 of 2009 Judge: COWDROY J Date of judgment: 30 April 2010 Catchwords: DEFENCE AND WAR – Veterans’ Entitlements – Widow’s pension – Administrative appeal – Use of assumptions to establish reasonable hypothesis - Status of expert evidence as ‘material’ under Veterans Entitlement Act 1986 (Cth) –Whether assumption supported by material before Tribunal – Held – Material pointed to assumption relied upon.
DEFENCE AND WAR – Veterans’ Entitlements – Widow’s pension – Administrative appeal – Use of the phrase ‘not fanciful’ in evaluating the material before the Tribunal – Whether Tribunal erred in upholding reasonable hypothesis on the basis of material which was ‘not fanciful’ – Held – Tribunal erred in employing the ‘not fanciful’ standard to evaluate the material before the Tribunal instead of applying such standard to evaluate the ‘reasonable hypothesis’– Tribunal applied incorrect test.
ADMINISTRATIVE LAW – Veterans’ Entitlements – Widow’s pension – Administrative appeal – Adequacy of reasons – Whether the Tribunal failed to address adequately the evidence of an expert called by Commission – Whether Tribunal failed to address adequately submission of Commission – Held – Tribunal failed to address adequately testimony of expert witness
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Repatriation Legislation Amendment Act 1985 (Cth) s 16
Veterans’ Entitlements Act 1986 ss 8, 13, 120, 120A, 196
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)Cases cited: Burns v Repatriation Commission [2008] AATA 1078 cited
Bushell v Repatriation Commission (1992) 175 CLR 408 cited
Byrnes v Repatriation Commission (1991) 23 ALD 35 cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Catherine Glanville and Repatriation Commission [2009] AATA 759 set aside
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited
Connors v Repatriation Commission (2000) 59 ALD 61 cited
Craig v The State of South Australia (1995) 184 CLR 163 cited
Deledio v Repatriation Commission (1997) 47 ALD 261 cited
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (Cth) (1988) 14 ALD 794 cited
East v Repatriation Commission (1987) 16 FCR 517 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 cited
O’Brien v Repatriation Commission (1984) 1 FCR 472 cited
Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 cited
Repatriation Commission v Bey (1997) 79 FCR 364 cited
Repatriation Commission v Bushell (1991) 23 ALD 13 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 cited
Repatriation Commission v Hill (2002) 69 ALD 581 cited
Repatriation Commission v O’Brien (1985) 155 CLR 422 discussed
Repatriation Commission v Stares (1996) 66 FCR 594 citedDate of hearing: 1 March 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 85 Counsel for the Appellant: Ms R. Henderson Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr L. Karp Solicitor for the Respondent: Legal Aid Commission NSW
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1217 of 2009
BETWEEN: REPATRIATION COMMISSION
AppellantAND: CATHERINE GLANVILLE
Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
30 APRIL 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Appeal be allowed.
2.The decision of the Tribunal be set aside and the matter be remitted to the Tribunal, differently constituted, for determination in accordance with law.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1217 of 2009
BETWEEN: REPATRIATION COMMISSION
AppellantAND: CATHERINE GLANVILLE
Respondent
JUDGE:
COWDROY J
DATE:
30 APRIL 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Repatriation Commission (‘the Commission’) appeals pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from the decision of the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 2 October 2009: see Catherine Glanville and Repatriation Commission [2009] AATA 759. Specifically, the appellant appeals from the findings that the death of the respondent’s husband was caused by his operational service and that the claim made by the respondent for a war widow’s pension under the Veterans’ Entitlements Act 1986 (‘the VE Act’) should be upheld.
FACTS
On 30 January 2004 Mr Keith Gregory Glanville (‘the veteran’ or ‘Mr Glanville’) died at Greenwich Hospital, the medical cause of death being carcinoma of the prostate. The respondent, Mrs Catherine Glanville (‘the respondent’ or ‘Mrs Glanville’) is his widow. The veteran had been a member of the Australian Army from 20 January 1943 to 2 October 1946 and during this period he served in Queensland, Victoria, New South Wales and in the Pacific Islands, including service in Morotai and Tarakan. In that period the veteran rendered operational service as defined in the VE Act.
On 3 May 2004 the respondent made a claim for a pension pursuant to Part II of the VE Act with the Commission, asserting that the death of her husband was war-caused as defined in s 8 of the VE Act. It was contended by the respondent that the veteran’s death was caused by a service-related smoking habit.
Such claim was rejected on the basis that smoking was not listed as a causal factor in the relevant Statement of Principles (‘SoP’), a legislative regime that will be discussed in more detail later in this judgement.
The respondent sought a review of such decision. The review came before the Veterans’ Review Board (‘the Board’) on 18 November 2004. The Board, having applied the same SoP, concluded that none of the factors in the SoP was met with regard to the circumstances surrounding the death of the veteran. Accordingly the decision of the Commission was affirmed.
By Application for Review dated 15 December 2004 the respondent applied to the Tribunal for a review of the decision of the Board. Before the Tribunal the respondent alleged that the veteran’s death had resulted from operational service not because of a smoking habit but rather because of the veteran’s ingestion of animal fat.
On 2 October 2009 the Tribunal set aside the Board’s decision and in lieu thereof found that the veteran’s death was caused by his operational service and that the respondent’s claim should be granted.
By Notice of Appeal filed on 28 October 2009 the Commission appeals that decision.
LEGISLATIVE FRAMEWORK
To establish an entitlement to a pension under the provisions of s 13(1) of the VE Act in respect of the death of a veteran, it is essential that the death of the veteran be ‘war-caused’ (see s 13(1)(a)). The circumstances in which a veteran’s death is deemed to be ‘war-caused’ is specified in s 8(1) of the VE Act. It includes the circumstance in which ‘the death of a veteran arose out of, or was attributable to, any eligible war service rendered by the veteran…’: see s 8(1)(b).
The standard of proof to be applied in determining whether a veteran’s death is ‘war-caused’ is stipulated in ss 120(1) and 120(3) of the VE Act which relevantly provide:
(1)Where a claim under Part II for a pension in respect of… the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine… that the death of the veteran was war‑caused… unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2)… 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:
…
(c) that the death was war‑caused…
… if the Commission, after consideration of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the… death with the circumstances of the particular services rendered by the person
Note: This section is affected by section 120A.
…
Section 120A applies to claims made under the VE Act on or after 1 June 1994 and that section, together with s 196A to s 196ZM, were introduced into the VE Act by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) in order to establish more certainty for the finding of a medical hypothesis for the claimed death or injury of the veteran. The changes introduced by the 1994 amendments are referred to in the Explanatory Memorandum to the Veterans Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994. By such amendments an SoP could be determined by the Repatriation Medical Authority (‘the Authority’) with the object of establishing the relevant relationship between service of the veteran and the death claimed to have arisen or be related to such service.
Section 196B(1) of the VE Act authorises the Authority to formulate SoPs for the purpose of the VE Act and s 196B(2) relevantly provides:
(2)If the Authority is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of… death can be related to:
(a) operational service rendered by veterans; or
…
the Authority must determine a Statement of Principles in respect of that kind of… death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting [a]… death of that kind with the circumstances of that service.
Since the respondent’s claim was made after 1 June 1994, s 120A(3) of the VE Act is applicable. Section 120A(3) of the VE Act provides that a hypothesis connecting (relevantly for this proceeding) the death of the person with the circumstances of any particular service rendered by the person is reasonable only if there is an SoP which upholds the hypothesis. It follows that if an applicable SoP exists, the hypothesis connecting the claimant’s injury, disease or death to the service must be shown to be reasonable, otherwise the claim must fail.
The relevant SoPs in this claim are No. 84 of 1999 as amended by No. 69 of 2002, and No. 28 of 2005. Relevantly, SoP No. 84 of 1999 provides:
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service is:
(a)…
(b)…
(c)Increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate…
(d)…
SoP No. 28 of 2005 stipulates a slightly different animal fat requirement at 5(c), namely:
(c)Increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate…
It should be observed that the standard of proof under the VE Act as prescribed by s 120(1) was not altered by the introduction of s 120A(3) and the introduction of SoPs. Rather, ‘the SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent’: see the Full Court’s judgement in Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, quoting Heerey J at first instance (see Deledio v Repatriation Commission (1997) 47 ALD 261 at 275).
MATERIAL BEFORE THE TRIBUNAL
The respondent put before the Tribunal a hypothesis of connection between the veteran’s increase in animal fat consumption and his wartime service. In summary, the respondent claimed that the veteran developed a preference for food containing high quantities of animal fat in his post-war years because of the food he was provided on active service and the experiences which he associated with such food.
The material before the Tribunal in support of the claim was provided by the respondent and by Dr Dianne H Volker (‘Dr Volker’), Consultant Dietitian. Dr Ruth English (‘Dr English’), a nutritional consultant, provided evidence for the Commission. The Tribunal was also provided with a nutritional report which sought to estimate the veteran’s animal fat consumption during his years engaged in service (20 January 1943 to 14 October 1946) and to estimate such consumption post-service. A dietary survey completed by Mrs Glanville provided the source information in respect of Mr Glanville’s post-service diet. There was no dispute that the post-service dietary record of the veteran, if valid, would have satisfied the requirements of factor 5(c) of either SoP.
The respondent could not provide specific information concerning the diet of the veteran prior to their marriage which took place on 1 November 1947. The respondent stated that following their marriage she had tried to emulate the cooking style of her mother-in-law, in the belief that the veteran had a preference for such food. She recalled that the veteran was advised to adopt a low-fat diet in or around 1993 but found it difficult to do so because he enjoyed the regular food that he was used to eating.
Despite acknowledging that she had no specific knowledge of the kind of food that the veteran actually consumed whilst on active service, nor of any food preference which the veteran may have had, Dr Volker testified as to the kind of food that she believed would have been provided to the veteran and his fellow soldiers as army rations. She said that the veteran would have eaten cold, tinned food which he would have found to be very bland and boring. Dr Volker testified that it was reasonable to assume that in his post-service years the veteran would have become determined to eat only flavoursome food because of his experience with such bland and boring food under frightening conditions during his service. Dr Volker stated that she believed ‘Mr Glanville decided that he wanted flavoursome food and Mrs Glanville after their marriage provided it’. Such flavoursome food, Dr Volker said, would have contained a high percentage of fat.
Dr English provided evidence which challenged the validity of the dietary surveys used by Dr Volker in making her findings. Dr English considered that if such surveys were accurate, the estimate of the quantity of animal fat consumed by the veteran would have resulted in an impossible weight gain.
TRIBUNAL FINDINGS
In its Reasons for Decision, the Tribunal asked itself three questions, namely did the veteran increase his animal fat consumption to the requisite degree and for the requisite period of time; was the increase in fat consumption connected to the veteran’s operational service; if so, was the Tribunal satisfied beyond reasonable doubt that the condition was not war-caused.
The Tribunal answered the first and second questions in the affirmative, finding that the veteran’s death was caused by his operational service. It answered the third question in the negative and thus set aside the decision under review. It is convenient to consider the critical findings of the Tribunal with the grounds of appeal.
GROUNDS OF APPEAL
The appellant submits that four errors of law were made by the Tribunal. The grounds are considered hereunder.
Ground 1: Use of assumptions
The first ground of appeal is stated in the Notice of Appeal as follows:
a) The Tribunal erred by using assumptions made by an expert witness to ground a finding that a hypothesis connecting the death of a veteran with his operational service was reasonable, in the absence of any material before the Tribunal pointing to or bearing upon that hypothesis
This ground in effect raises two separate questions. The first is whether Dr Volker’s testimony, which included several assumptions, constituted ‘material’ for the purpose of supporting a hypothesis. The second question is whether the hypothesis raised by such testimony is reasonable. This question will be dealt with under the second ground of appeal. The Court will now address the first issue.
(a) Tribunal findings
The Tribunal at [12] of its decision said:
Dr Volker, Consultant Dietitian, said that Mr Glanville, during his service, was on Army rations and, when one looks at the list of Army rations, he would have eaten tinned food, it would have been cold and it would have been bland and boring. Dr Volker said that when a person experiences food of that kind under frightening conditions, it is reasonable to assume that the person will not eat that kind of food again when he leaves the theatre of war. She considered that Mr Glanville would have wanted flavoursome food, Mrs Glanville provided it and flavoursome food in those days was food containing a fair amount of animal fat. Dr Volker said she based her view of the kind of food that would have been consumed by Mr Glanville in the theatre of war on a historian’s reports and on having visited the location at which rations were formulated and tested. She said she is aware of how much work has been done on the food since those days.
The Tribunal then referred to the respondent’s evidence at [13]:
Mrs Glanville gave evidence of her attempts to make her husband decrease his fat intake after he was advised to do so by his doctors in 1993. She said he would not stick to a diet that had less butter, cream, and other fatty foods. She said he was very hard to manage because he liked “the old regular food he was used to eating” and wouldn’t change his eating habits even though he knew he should.
The Tribunal found at [14]:
It seems to us that a hypothesis of connection to service is raised by this material. The material points to a hypothesis that, in addition to conforming to the increases in animal fat consumption set out in factors 5(c) of the SoPs, during the frightening conditions of service Mr Glanville had only boring and bland food; as a result, he rejected that kind of food after leaving the theatre of war and desired instead flavoursome food which meant, in those days, food containing a high level of animal fat; he continued to demand and consume such food notwithstanding Mrs Glanville’s attempts to decrease the amount of fat in his diet and would not change that established habit.
The Tribunal noted that Dr Volker’s opinion relied upon an assumption that the veteran rejected bland food after his operational service, and found at [15]:
We note that this hypothesis is necessarily raised in the absence of any evidence from the late veteran himself. We also note that Dr Volker’s opinion relies on the assumption that Mr Glanville rejected bland food after he left service. An assumption [is] not sufficient to make a hypothesis unreasonable (Byrnes v Repatriation Commission (1993) 177 CLR 564).
The Tribunal then made reference to the fact that Dr Volker was an experienced dietitian with a history of work in the area of Veterans’ Entitlements. The Tribunal continued at [16]:
The assumption made by her [Dr Volker] is based on her knowledge of army rations. She stated her assumption, about Mr Glanville’s reaction to that diet, after the conclusion of his service, as an expert dietitian. There was no material before us to contradict her opinion.
(b) Submissions
The Commission submits that the Tribunal had no material before it sufficient to support a reasonable hypothesis. It submits that while the Tribunal’s reliance on an assumption does not make the hypothesis unreasonable, it is essential that such assumption be supported by the ‘material’ before the decision-maker. An assumption not supported cannot make a hypothesis reasonable.
The respondent submits that the Tribunal was entitled to rely upon Dr Volker’s expertise. It submitted that Dr Volker is an expert and was found to be so by the Tribunal. It further submitted that, given her expertise, her evidence regarding the veteran’s war-time diet and the existence of a causal connection between a veteran’s war-time experience and a subsequent preference for rich food could be treated as ‘material’ which could support a reasonable hypothesis.
Findings: Ground 1
Following the amendments to the VE Act which took effect on 1 June 1994, the application of an SoP was considered by the Full Court in Deledio at 96. There the Full Court quoted Heerey J at first instance (see: Deledio v Repatriation Commission (1997) 47 ALD 275) where his Honour said:
The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not an issue at this point. The hypothesis will not be reasonable if it is:
(i)contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)The truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.
Once a reasonable hypothesis is established, a claim will be successful unless the Tribunal considers that the hypothesis has been disproved beyond reasonable doubt. In such circumstances the Tribunal is entitled to make a finding that the injury, disease or death was not war-caused.
In the present proceedings an applicable SoP exists as referred to at [14]-[15] above. Accordingly, the Tribunal was required to determine whether the veteran increased his animal fat consumption to the requisite degree and for the requisite period, as stipulated in factor 5(c) of the SoP, and whether there existed a reasonable hypothesis which connects such increase to his service.
Mrs Glanville gave evidence to the Tribunal that following the veteran’s period of war-service and their marriage, subsequent to the conclusion of World War II, she prepared all of the veteran’s meals and that her cooking style was the same as that of her mother-in-law. She said that in 1993 the veteran was advised to have a low fat diet but that he found it difficult to do so because he liked the regular food which he had been used to eating.
There was no material before the Tribunal concerning the nature of the food which the veteran had actually consumed during his war-time service beyond the general evidence of Dr Volker concerning the ration scale employed during that time. Neither was evidence adduced regarding the veteran’s liking for such food. Critically, there is no evidence that the veteran developed a dislike for the food he consumed during this service because of his war-time experience and diet. The only evidence of the veteran’s food preference was the fact that he liked his mother’s cooking and the fact that he struggled to keep to a diet in his advancing years because he liked the food he was used to eating.
Dr Volker claimed that the food consumed during the period of the veteran’s service would have comprised service rations, and that there were no food choices. The following exchange during the Tribunal hearing is instructive as it encapsulates the only evidence concerning this aspect of the hypothesis:
And you mentioned that again in your evidence, do you have any particular evidence about what exactly the food experiences of this applicant were? Sorry, that Mr Glanville’s were?---Mr Glanville was on army rations and if you look at the list of army rations, particularly in the field, it would have been tinned, it would have been cold, and it would have been very bland and boring. When you experience that type of food under very frightening conditions, it’s reasonable to assume that you’re not going to eat that sort of food again once you leave the theatre of war. And I believe that Mr Glanville decided that he wanted some flavoursome food and Ms Glanville after their marriage provided it, and flavoursome food in those days was food containing a fair amount of fat, animal fat.
Dr Volker acknowledged that her evidence relating to the food that the veteran would have consumed during his service was derived from research undertaken by a historian, Brendan O’Keefe, and from information she had obtained by visiting a site known as Scottsdale where food rations were formulated and tested. Dr Volker prepared dietary tables relating to the veteran’s estimated ingestion of animal fat. In addressing such information, Dr Volker acknowledged that she had assumed certain facts. It follows that she had no direct knowledge of the specific war-time diet of the veteran, nor whether the veteran actually formed a dislike for the food consumed on his service.
In its reasons the Tribunal adopted the assumptions made by Dr Volker concerning the veteran’s war-time experiences and his food preferences. The Tribunal then observed that a hypothesis ‘is necessarily raised in the absence of any evidence from the late veteran himself’. It continued at [15]:
[W]e also note that Dr Volker’s opinion relies on the assumption that Mr Glanville rejected bland food after he left service. An assumption [is] not sufficient to make a hypothesis unreasonable: see Byrnes v Repatriation Commission (1993) 177 CLR 564.
In Byrnes v Repatriation Commission (1993) 177 CLR 564 the High Court referred to the necessity that material exist to support a hypothesis. At 569, the joint judgment of Mason CJ, Gaudron and McHugh JJ states:
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason C.J., Deane and McHugh JJ. said:
“(A) hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature’. Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous’.”
In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered. [footnotes omitted]
In Repatriation Commission v Stares (1996) 66 FCR 594 the widow of a veteran who died of cancer made a claim for a pension under the VE Act on the basis that her late husband’s heavy drinking habit had arisen as a consequence of his war-service. There was material which established that the veteran did not consume alcohol prior to his operational service and commenced drinking alcohol on his return from service. The veteran developed a heavy consumption by 1976 which later led to his death. The psychiatric evidence was sufficient to support a reasonable hypothesis that the consumption of alcohol arose from the veteran’s service. The Full Court, in dismissing the appeal, emphasised that the psychiatrist’s opinion was based upon the facts of the veteran’s drinking history. The Full Court, referring to the High Court’s decision in Byrnes, said at 601 (A-B):
By there saying that “the material must point to some fact or facts” their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion. It is trite to observe that a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact.
The Full Court said at 601 (D-E):
The question s.120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran's injury with war service: see Byrnes' Case at 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.
Significantly, the Full Court observed at 601 (E-F):
In the present case the learned primary judge did not hold that a reasonable hypothesis for the purposes of s 120(3) may be raised by an assumed fact in isolation. The assumed fact was to be considered by the decision-maker in the light of all the other material. Much of that other material bore directly upon the hypothesis.
In Bushell v Repatriation Commission (1992) 175 CLR 408 the majority said at 414:
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the facts raised are true.
The judgment continued (at 414):
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature”. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”. [footnotes omitted]
Brennan J, in dissent, observed at 427:
The decision-maker is directed to determine from the material before it whether there is a “reasonable hypothesis” that the circumstances of operational service are connected with the veteran's morbid condition. Again, the absence of any material raising such an hypothesis may lead the decision-maker to seek further investigation of the claim. However, at the end of the day, unless the material raises such an hypothesis, the decision-maker must be satisfied beyond reasonable doubt that there is no causal connection.
In Repatriation Commission v Bey (1997) 79 FCR 364 a five member Full Court dispelled any suggestion that a hypothesis, unsupported by material, would be adequate to establish a claim. The majority of Northrop, Sundberg, Marshall and Merkel JJ said at 372-373:
This Court re-states the position established by East, Bushell and Byrnes. A “reasonable hypothesis” involves more than a mere possibility. It is hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word “reasonable”, is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister’s second reading speech and with authority.
In Connors v Repatriation Commission (2000) 59 ALD 61, Kenny J at [19] said:
In any event, irrespective of s 120A(3), there is nothing in Byrnes, Bushell, or Bey that would lead me to accept the proposition that a hypothesis need not be supported by evidence pointing to each individual element of it in order to be reasonable for the purposes of s 120(3). As Byrnes at 571-2 shows, if a hypothesis assumes the existence of a fact and is reasonable, then the assumption must be one that is pointed to by the material before the decision-maker. This was also the case in Repatriation Commission v Stares: see (1996) 66 FCR 594 at 601; 41 ALD 212. In Bey, the Commission submitted that the primary judge was wrong in failing to find that the Tribunal had erred in requiring each element of the hypothesis to be established by evidence. In a joint judgment, four members of the Full Court responded to this, at 373, as follows:
The hypothesis was that the respondent's physical work and sporting activities in Vietnam caused or contributed to his disease. The Tribunal did not require each element of that hypothesis to be established by evidence. Rather, it examined the evidence to determine whether there was any reasonable basis therein for the hypothesis.
There is nothing in this passage, however, that would support the view that there need not be material pointing to each element of a hypothesis. The observation that each element need not be established by the evidence is, as I read it, simply a restatement of the accepted proposition that determining the reasonableness of a hypothesis does not involve making findings of fact: see Deledio at 412.
A similar issue was raised in Repatriation Commission v Hill (2002) 69 ALD 581. In those proceedings it was claimed that the veteran’s claim for a disability pension arose from post-traumatic stress disorder which was caused by his alleged witnessing of an aircraft accident whilst he was serving in the Royal Australian Navy. Before the Tribunal, evidence had been called from other witnesses which contradicted the events relied upon by the veteran. The Tribunal had rejected the claim on the ground that the incident was not one of ‘intense fear, helplessness or horror’ as was required to satisfy the relevant SoP.
The Full Court in Hill found that the Tribunal had erred and in reaching its decision said at [56] and [57]:
[56] Counsel for Mr Hill referred to Byrnes at 569-70 … and Repatriation Commission v Stares (1996) 66 FCR 594 … in support of the proposition that, in some cases, a hypothesis may assume the occurrence of certain facts and that the making of the assumption does not necessarily render the hypothesis unreasonable. This was the position prior to the introduction of ss 120A and 196B: see Stares at 601. For example, in Byrnes at CLR 570 …. , the High Court held that:
… [T]he appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.
Section 120A did not, however, apply to the claims made in Byrnes or Stares.
[57] Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out “the factors that must as a minimum exist” and “which of those factors must be related to service”. The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.
It should be noted that in the present application, the assumption that the veteran rejected ‘boring and bland’ food after he returned from service is not listed in the SoP as a ‘factor that must as a minimum exist’.
The Respondent contends that Dr Volker’s evidence regarding the veteran’s diet and food preference constitutes ‘material’ because of her expertise. It is submitted that such ‘material’ is sufficient to support the assumptions that the Tribunal accepted from her evidence.
In Repatriation Commission v Bushell (1991) 23 ALD 13, Davies J said at 15:
‘A reasonable hypothesis will ordinarily be established if a responsible medical practitioner, speaking within the gambit of his expertise, and after considering the particular facts of the veterans’ case, puts forward a theory of a likely, in the sense of a realistically possible, not fanciful, causal connection between war service and the veteran’s disability.’
One logical extension of the respondent’s submission that the testimony of Dr Volker constitutes ‘material’ capable of raising a reasonable hypothesis is that a reasonable hypothesis could be created with relative ease. Such an approach was considered by Einfeld J in Byrnes v Repatriation Commission (1991) 23 ALD 35 at first instance when his Honour said at 39:
If. [this] argument were correct, one report from one medical practitioner, even a general practitioner with little specialised knowledge of the subject matter, supporting the necessary causal nexus would be sufficient to conclude the matter in the veteran's favour even if there were very many contrary more expert opinions. If this were all that was required, such matters could all be finalised administratively without the need for multiple appeals or reviews. Judicial or quasi-judicial considerations of evidence would be completely unnecessary. Such an interpretation would also encourage "doctor shopping" until a favourable opinion could be obtained. I do not think that the simple scheme apparently desired by the Parliament was intended to be that "simple".
Despite the above considerations, the Court recognises, even in light of later authorities such as Connors and Hill, that the hypothesis posed by the Respondent, including any element based upon an assumption, need only be supported by the material before the Tribunal. There is no question that there is insufficient evidence to support the hypothesis raised in these proceedings and this is not required (see Stares at 601 A-B). Dr Volker’s testimony however put before the Tribunal significant material which points not only to the veteran’s war-time diet but also to a dietary reaction to war-time trauma and a resulting post-war preference for fatty foods. In reference to the specific assumption identified by the Tribunal in their reasons, namely that it was assumed that the veteran rejected bland and boring food after he left service because of his war-time experiences, there are also two kinds of material that point to such assumption. First, the results of the dietary surveys confirm the veteran’s post-war preference for food containing a high amount of animal fat. Second, the evidence of Dr Volker presents a relationship between stressful war-time experiences and a later rejection of the style of food consumed under such conditions. Such material points to the assumption made by Dr Volker which was ultimately adopted by the Tribunal, namely that Mr Glanville had rejected plain food later in life because of his service experience.
The authority of Bey requires that the whole of the material point to the hypothesis rather than merely leave it open as a possibility. Dr Volker stated as an expert witness that it was a ‘reasonable assumption’ to conclude that Mr Glanville rejected bland and boring food after his service and stated that she ‘believe[d] that Mr Glanville decided that he wanted flavoursome food and Ms Glanville after their marriage provided it, and flavoursome food in those days was food containing a fair amount of animal fat’.
Whatever the basis of such testimony, the Court is of the opinion that Dr Volker’s testimony provided ‘material’ before the Tribunal that pointed to the assumption relied upon in the respondent’s hypothesis. Whether the hypothesis was reasonable is an issue for determination in the second ground of appeal.
Ground 2: Material before the Tribunal which was not fanciful
The second ground of appeal is expressed in the Notice of Appeal as follows:
b) The Tribunal erred by concluding that a hypothesis was reasonable because there was “material” before it that was not fanciful”;
(a) Tribunal findings
The relevant finding of the Tribunal was as follows:
On this basis, we consider that there is before us material, not fanciful (Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422), that points to the hypothesis of the connection between the events that conform with the relevant SoPs and Mr Glanville’s service. It may reasonably be hypothesised that Mr Glanville’s operational service contributed in a material degree to his consumption of fat at the levels and for the periods required by each of the SoPs.
(b) Submissions
The Commission refers to the finding of the Tribunal that ‘there is material before us, not fanciful’. The Commission submits that the only ‘material’ before it upon which it based its finding were the assumptions made by Dr Volker and that the Tribunal apparently understood that such material could be accepted provided they were ‘not fanciful’. The Commission submits that the Tribunal misdirected itself in undertaking this application of the test. The Commission submits that the phrase ‘not fanciful’ should have been used in evaluating the ‘reasonable hypothesis’ as opposed to evaluating the ‘material’ going towards supporting such hypothesis. It is submitted that such misdirection led the Tribunal to rely upon the assumptions made by Dr Volker.
The Commission further submits that the Tribunal’s reliance upon the High Court’s decision in O’Brien was misplaced in that the decision is not an authority for the proposition that the Tribunal drew from it. It is submitted that the phrase ‘not fanciful’ appeared in that decision only once and that the VE Act then extant contained no reference to ‘reasonable hypothesis’ or ‘a hypothesis’. It is also submitted that that decision was given in respect of the standard of proof then prevailing. Amendments made to the VE Act in 1985 however introduced the concept of a ‘reasonable hypothesis’. The Commission submits that while the expression ‘not fanciful’ has appeared in decisions involving the VE Act since 1985, it has been used in the evaluation of a reasonable hypothesis and not as a criterion for evaluating the material before a decision-maker.
The respondent submits that the respondent’s interpretation of the Tribunal’s reasons is an example of ‘fine tooth combing’ contrary to established authority.
Findings: Ground 2
In O’Brien at 434, the High Court, having reviewed several authorities relating to the VE Act (as it applied prior to the 1985 amendments), upheld the Full Court’s conclusion in O’Brien v Repatriation Commission (1984) 1 FCR 472 where Keely and Fitzgerald JJ observed at 499:
A real possibility of the existence of a fact may be left open by material although there is nothing in the material which points to that possibility. The possibility may in such circumstances be ‘speculative’ but it is nonetheless ‘real’, not ‘fanciful’, in the relevant sense, for the very reason that, on the evidence, the non-existence of the fact is not the only rational conclusion.
The VE Act was subsequently amended by s 16 of the Repatriation Legislation Amendment Act 1985 (Cth). In East v Repatriation Commission (1987) 16 FCR 517 the Full Court observed that the amendment made in 1985 was ‘a direct response to the decision in O’Brien’ (see East at 522). At 522 the Full Court said:
The consequence of the majority view in O’Brien was that in any case where, at the end of the day, it was impossible to determine the cause of an incapacity or death – or, in the case of an incapacitating or fatal disease, the cause of that disease – the application must succeed. Cause being unknown, the Commission could not negative, beyond reasonable doubt, the possibility that there was a causal relationship between the veteran’s war service and his or her subsequent incapacity or death. Where cause was unknown claims would, therefore, have to be allowed even though there were no facts to suggest a connection between the incapacity or death and the war service; and such claims were, quite properly, allowed in the period immediately following O’Brien.
The Full Court at 532 said in reference to s 120(1) of the VE Act:
The obvious intention of the 1985 amendment was to reverse, to some extent, the trend towards improvement of the position of claimants. Parliament wished to retain the requirement that the Commission should negative claims beyond reasonable doubt but to limit the operation of that requirement to case where there was some reason to believe in the existence of a causal connection.
The Full Court continued at 532:
The means chosen to give effect to that intention were apt. The adoption of Brennan J’s notion of a reasonable hypothesis [see dissenting judgment of Brennan J in O’Brien] meant that Parliament was requiring something by way of a causal link, but which fell short of proof of the link – even prima facie – as a fact. The meaning of the phrase “reasonable hypothesis” was felicitously explained by a Veterans’ Review Board in Stacey (unreported Nos V83/0396, V84/0821 and V28/072, 26 June 1985); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255:
“A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary.
…
The addition of the word ‘reasonable’ would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact…”
The reasoning which appears in the Tribunal’s decision at [17] demonstrates the Tribunal’s misapplication of the authority of O’Brien. In any case, because of legislative amendments, such authority is now inapplicable. The term ‘not fanciful’ has been applied in explanations of the reasonable hypothesis standard of proof since the 1985 changes. However, it has been applied in the context of a consideration whether a reasonable hypothesis exists, not as a standard for evaluating material before the decision-maker. The Tribunal in the present instance applied the evaluation to the material before it instead of considering whether that material establishes a reasonable hypothesis.
While this Court has found that the material before the Tribunal ‘pointed’ to an assumption of the respondent, it was essential that the Tribunal assess the reasonableness of the hypothesis advanced by the respondent according to the test established by the post-1985 authorities. Such test is reproduced in this judgement at [34]. Given the nature of the material before the Tribunal, particularly in regard to the testimony of Dr Volker, such a misdirection may have had significant consequences for the Tribunal’s decision. The Tribunal was required to address the question of the reasonableness of the hypothesis pursuant to s 120(3)(c) of the VE Act and the above authorities. The Tribunal failed to do so.
The error so identified is not merely one of construing ‘the Tribunal’s reasons for its decision minutely and finely and with an eye keenly attuned to the perception of error’: see Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708, as referred to in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287: see also Minister for Immigration and Ethnic Affairs v Wu Shan Liangand Others (1996) 185 CLR 259 at 272. Rather, the issue is fundamental to the task of the Tribunal.
For these reasons the Court is satisfied that the submission of the Commission should be upheld because the Tribunal has misdirected itself in not applying the requisite test.
Ground 3 and 4: Failure to consider submissions and evidence
The final two grounds of the Notice of Appeal are set out as follows:
c) The Tribunal failed to deal with a submission that was worth of serious consideration, namely the submission that there was no material before it that fitted the template in factor 5(c) Statement of Principles No. 84 of 1999 as amended by 69 of 2002 or factor 5(c) of Statement of Principles No. 28 of 2005;
d) The Tribunal refused to consider certain evidence given by an expert witness at all, on the basis that a disagreement between expert dieticians is incapable of “proving” whether a hypothesis is reasonable, or disproving beyond reasonable doubt a reasonable hypothesis.
Both grounds relate to an alleged failure by the Tribunal to consider the evidence of Dr English, the dietitian called by the respondents.
The Commission submits that it drew the Tribunal’s attention to Dr English’s opinion that the information supplied by Mrs Glanville concerning the veteran’s post-service diet was invalid because the veteran would have experienced ‘an impossible weight gain’ had the veteran adopted such diet. Although not reproduced in the Appeal Book, the Commission submits (and the respondent does not dispute) that the following exchange took place between the Tribunal and counsel for the Commission:
MS BELL: Mr Purcell, aren’t questions of weight or, for example, if your submission is that there is evidence before us which makes satisfaction of all meeting the elements in the SoP impossible, isn’t that something that goes to the final step in the Deledio process to use the short hand?
Mr PURCELL: Yes.
MS BELL: Doesn’t that go to the question of whether the hypothesis, if reasonable, is disproved beyond a reasonable doubt?
Mr PURCELL: Yes. I hadn’t thought of it that way, I must admit, but that seems to be so that you’d be satisfied beyond reasonable doubt that the calculations are invalid and that one couldn’t include what this man’s level of fat was. That’s what Dr English is saying.
In its reasons for decision the Tribunal referred to the evidence of Dr English on this issue but made no findings concerning Dr English’s evidence. The Tribunal stated at [18] and [19] of its decision:
Drs English and Volker were in disagreement in relation to a number of matters, including Mr Glanville’s weight at certain items, his daily eating pattern and food frequency record and the correct application of a set of predictive equations referred to as the “Schofield Equations”. Dr English considered, in particular, that the answers to the questionnaires were “invalid”.
A differently constituted Tribunal, over which one member of the present Tribunal presided, reached the following conclusion in relation to the evidence of Drs English and Volker on a similar point:
We note the objections and doubts raised by Dr English as to the validity of the questionnaire answers. In contrast, the report … of Dr Volker, Consultant Dietitian, accepts the answers as plausible. It is unnecessary to air the habitual contest between these two experts. The reasonableness of the hypothesis will not be disproved by either one of their opinions. There are variables in the equations that are applied to estimate increases in fat consumption: differences in metabolic rate, difference in exercise levels, and the effects of illnesses. The different ways in which different experts incorporate these variables into their calculations, and the different formulae used by them, mean that the opinion of just one expert dietician, in opposition to that of another, does not serve to disprove, beyond reasonable doubt, a reasonable hypothesis. (Burns v Repatriation Commission (2008) AATA 1078).
The Commission submits that because Dr English’s opinion regarding the validity of the dietary survey went to the fundamental issue upon which the pension claim is based, namely the quantity of animal fat consumed by the veteran, it was necessary for the Tribunal to make a finding on the issue of whether it accepted or rejected such evidence.
As a final and associated ground of appeal, it is submitted that the Tribunal failed to consider the Commission’s submissions relating to the reliance of Dr English’s evidence.
The respondent submits that Dr English’s evidence was provided in aid of a submission that the Tribunal should be satisfied beyond reasonable doubt that Mr Glanville’s death was not ‘war-caused’. The respondent submits that the Tribunal referred to the matters of disagreement between Dr Volker and Dr English and submits that the Tribunal was correct in its reasoning that a disagreement between two experts is not sufficient to disprove a hypothesis beyond reasonable doubt.
Findings: Ground 3 and 4
Dr Volker had provided a nutritional report in which she reviewed her estimation of the food supplied to the veteran during his service years and sought to estimate his pre-service dietary record together with the estimates of the veteran’s consumption of animal fat during his war period. Her analysis also used information regarding the veteran’s post-war animal fat consumption contained in dietary surveys completed by the Respondent.
Dr English also prepared a report which was provided to the Tribunal. She concluded that the estimates of the post-service consumption of animal fat upon which Dr Volker based her assessment were invalid. She made an assessment which, in her opinion, demonstrated that had the survey entries been correct such diet would have manifested itself in an impossible weight increase in the veteran. She also suggested two possible reasons for the change in the veteran’s diet after the completion of his service, namely the increased availability and affordability of meat and dairy in the post-war period and secondly a change in lifestyle of the veteran when the veteran entered married life.
In its reasons the Tribunal did not make any findings in respect of Dr English’s evidence or in respect of the submissions made in support by the Commission except to refer to a proceeding which had previously occurred, in similar circumstances before the Tribunal (differently constituted except as to one member): see Burns v Repatriation Commission [2008] AATA 1078.
While ‘conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable’ (see Bushell at 415), it is essential that in assessing the material before it, the Tribunal give proper regard to all material relating to the fundamental questions for determination. In this instance the Tribunal was required to address the information raised by Dr English’s opinion particularly in circumstances where Dr English’s opinion called into question the primary evidence on which the claim was based. It was not sufficient for the Tribunal to simply refer to a finding in another proceeding. It is also not appropriate to refer to the rejection of different evidence provided in different proceedings. Merely because the same experts had testified in the other proceedings does not justify the dismissal of Dr English’s evidence in these proceedings. The reasons of the Tribunal have, by virtue of referring to another decision without engaging in an active intellectual process with regard to Dr English’s evidence in these proceedings, virtually ignored her evidence. As such jurisdictional error has occurred: see Craig v The State of South Australia (1995) 184 CLR 163 at 179.
The Court also upholds the submission that the Tribunal was required to consider the Commission’s submissions concerning the evidence of Dr English. The submissions were of significance to a critical issue in the proceedings. The only evidence which establishes the fact that the veteran increased his consumption of animal fat to the level required by the SoP are the results obtained from the survey. Any evidence which calls into question the validity of such evidence requires proper consideration by the Tribunal. In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (Cth) (1988) 14 ALD 794 Jenkinson J found that the failure of a tribunal to refer to submissions in respect of an important issue constituted an error of law by the tribunal. The circumstances in the present proceedings are not materially different and accordingly the Court finds that the Tribunal, by failing to address and consider the Commission’s submission before it, fell into jurisdictional error.
CONCLUSION
For the reasons referred to above, the Commission’s claim for relief is upheld, and the Court will make the orders sought.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 30 April 2010
11
16
4