Repatriation Commission v Hayes

[1982] FCA 116

Re: THE REPATRIATION COMMISSION
And: YVONNE NOEL HAYES (1982) 64 FLR 423
No. VG 134 of 1981
Repatriation Act - Defence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)

CATCHWORDS

Repatriation Act - appeal on questions of law from decision under s. 24 - relationship between s. 47 and s. 24 of the Repatriation Act considered - meaning of "incapacity" within s. 24 - error of law in failing to properly consider meaning of "from which he has died" - test of causation to be applied - error of law in failure to consider whether "serious default".

Repatriation Act 1920 (Cth.) ss. 24, 47, 107VG, 107VH.

Defence - War widow's pension - Decision of Repatriation Review Tribunal - Appeal on questions of law - Death of member of forces - Causation - Incapacity from which member died - Whether death due to serious default of deceased - Errors of law - Repatriation Act 1920 (Cth), ss. 24, 47, 107VG, 107VH.

HEADNOTE

Upon the death of her husband the respondent applied for a war widow's pension under ss. 24 and 24AA of the Repatriation Act 1920 (the Act). The Repatriation Board refused the application and an appeal to the Repatriation Commission was disallowed. Upon application to the Repatriation Review Tribunal (the Tribunal) it was determined that the "death (was) accepted as being related to the member's (war) service under s. 24 of the Repatriation Act 1920".

Upon an appeal by the applicant on questions of law,

Held: (1) The Tribunal had failed properly to consider the meaning of the words "from which" in the phrase "the incapacity . . . from which he has died . . . " in s. 24(2)(a) and their correct application to the facts of the case and accordingly had erred in law.

Commonwealth v. Butler (1958) 102 CLR 465, discussed.

(2) The Tribunal had failed to consider whether the death was "due to the serious default" of the respondent's husband within s. 24(2)(b) of the Act and this also involved an error of law.

HEARING

Melbourne, 1982, June 3, 4, 7, 8, 9, 10, 17. #DATE 17:6:1982

APPEAL.

The applicant appealed on questions of law from a determination of the Repatriation Review Tribunal.

G. Griffith Q.C. and N. A. Moshinsky, for the applicant.

C. H. Francis Q.C. and D. Shavin, for the respondent.

Cur. adv. vult.

Solicitor for the applicant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: John Wilder & Darren Moses.

T. J. GINNANE

ORDER

1. The appeal be allowed.

2. The decision of the Repatriation Review Tribunal made on 10 June, 1981 be set aside.

3. The matter be remitted to the Tribunal to be heard and decided according to law after the hearing of such further evidence as it may decide to receive.

4. The costs of the respondent, Yvonne Noel Hayes, in connection with the appeal be taxed.

JUDGE1

William Fitzgerald Hayes was born on 9 April, 1894, served in the Army in Australia and the Middle East between 9 February, 1916 and 25 May, 1920 and died on 17 July, 1978 about two hours after being injured in a car accident at Lake Boga.

His widow applied for a War Widow's Pension pursuant to ss. 24 and 24AA of the Repatriation Act 1920 (the Act). Sections 24AB(1) and (2) of the Act required the Secretary to cause an investigation to be made into the matters to which the claim related and, after completing his investigations, to submit the claim to a Repatriation Board for its consideration and determination. On 26 February, 1979 the Repatriation Board stated that it was satisfied beyond reasonable doubt that the injuries from which Mr. Hayes died were not related to his war service and the "claim was therefore refused under Section 24 of the Repatriation Act".

Mrs. Hayes appealed from the Board's decision to the Repatriation Commission pursuant to s. 28 of the Act. The Commission disallowed the appeal on the ground that it did "not consider that the member's war service can be incriminated in any way in the cause of his death . . .".

Mrs. Hayes then applied to the Repatriation Review Tribunal (the Tribunal) pursuant to s. 107VC for a review of the Commission's decision. On 10 June, 1981 the Tribunal, by majority, set aside the Commission's determination and made a determination that "death is accepted as being related to the member's (war) service under Section 24 of the Repatriation Act 1920 . . .". It will not be necessary to examine the decision of the dissenting member of the Tribunal and accordingly in these reasons for judgment all references to the decision of the Tribunal refer to that of the majority. Under s. 107VZZH of the Act, which permits an appeal "on a question of law" from any decision of the Tribunal, the Repatriation Commission now appeals to the Federal Court.

Section 47 of the Act relates to the basis upon which the Commission and a Board are to hear and determine a claim or appeal. Sections 107VG and 107VH are similar provisions in relation to the Tribunal and are in the following terms :-

"107VG The Tribunal, in conducting a proceeding, or a hearing of a proceeding, or in making a decision in a proceeding, on a review -

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to -

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or

(ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a member of the Forces was not reported to the appropriate authorities.

107VH (1) In a proceeding on a review, the Tribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before the Tribunal in the proceeding that was not before the Commission or the Board but would have been relevant to the making of a decision in the proceeding before the Commission or the Board.

(2) On the completion of its consideration in a proceeding on a review -

(a) where the decision the subject of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or

(b) in any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made.

(3) Where the Tribunal sets aside a decision the subject of a review, it shall substitute for that decision such decision as the Tribunal considers to be in accordance with this Act.

(4) Where the Tribunal does not set aside a decision the subject of a review, it shall affirm that decision."

Order 53 Rule 4 (1)(c)(iii) of the Federal Court Rules, as applied by Order 59 Rule 2, required that the notice of appeal state the questions of law to be raised on the appeal. The notice did not do so but during the hearing Dr. Griffith Q.C., who appeared with Mr. Moshinsky for the Commission, formulated the following questions of law without objection :-

"1. As a matter of law could the Tribunal properly find pursuant to paragraph (a) of subsection 24(2) of the Act that the member had died from the accepted incapacity in respect of his left eye?

2. Is the decision of the Tribunal vitiated by its failure to consider or properly to consider the operation of paragraph (b) of subsection 24(2) of the Act?

3. Is the decision of the Tribunal vitiated because it had regard to an irrelevant consideration namely whether the member's death arose out of or was attributable to war service?

4. As a matter of law, is the decision of the Tribunal vitiated by its failure to consider or properly to consider the operation of subsection 24(1)of the Act?

5. As a matter of law could the Tribunal find in respect of the member within the meaning of subsection 24(1) of the Act that his death had resulted from any occurrence that happened during his war service?"

The Commission sought an order setting aside the determination of the Tribunal and either an order confirming the decision by the applicant Commission, made 23rd May 1979 refusing the respondent's claim for pension or an order "that the case be remitted to the said Tribunal to be heard and determined according to law, either with or without the hearing of further evidence."

It is convenient to refer to three matters before turning to the questions of law. Firstly, I accept the submission put by Mr. Francis Q.C., who appeared with Mr. Shavin for the widow, that the Act is a remedial Act and "should be construed so as to give the fullest relief which the fair meaning of its language will allow" - per Isaacs J. in Bull v Attorney General for N.S.W. (1913) 17 C.L.R. 370 at p. 384. However, that judgment made it clear in the preceding words that it did not mean "that the true signification of the provision should be strained or exceeded". Mr. Francis also relied upon the statement in Gover's Case (1875) 1 Ch. D. 182 at p. 198, cited by Rich J. in Holmes v Permanent Trustee Co. of N.S.W. Ltd. (1932) 47 C.L.R. 113 at p. 119, that the statute "must be so construed as to give the most complete remedy which the phraseology will permit."

Secondly, in considering the wording of the Tribunal's decision I have applied the following dictum of Northrop and Sheppard JJ. in Lennell v Repatriation Commission (judgment delivered 3 February 1982) :-

"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."

However it should be noted that their Honours also said :-

"But if the Tribunal does approach the matter in this way it ought, notwithstanding the latitude in language that it should properly be allowed, be careful to keep in mind what it is that it is about."

Thirdly, Dr. Griffith conceded that Mr. Hayes had an "incapacity" immediately before the car accident, the "origin" of which "existed prior to his enlistment" (s. 24(2)) and consisted of damage to the left eye by a whip. He also conceded that the incapacity had been "aggravated by the conditions of his war service" and that "there was nil incapacity at the time of enlistment". He disputed, however, that "the origin of the cause of the death" existed prior to his enlistment.

Section 24 of the Act provides, so far as is relevant, as follows :-

"24.(1) Upon the death or incapacity -

(a) of any person, to whom paragraph (a) or (b) of the definition of "Member of the Forces" applies, whose death or incapacity -

(i) results or has resulted from any occurrence that happened during his war service;

(ii) . . . . .

(iii) . . . . .

the Commonwealth shall, subject to this Act, be liable to pay to the member of his dependants . . .
pensions in accordance with this Division : . . . . . .

(2) Notwithstanding that the origin of the cause of the death or incapacity of a member of the Forces, who, after enlistment with those Forces, served in camp in Australia for at least six months or embarked for active service with those Forces overseas, existed prior to his enlistment, where, in the opinion of a Board -

(a) the incapacity from which the member is suffering or from which he has died has been contributed to in any material degree, or has been aggravated, by the conditions of his war service; and
(b) neither the death or incapacity, nor the origin of the cause of the death or incapacity, was due to the serious default or wilful act of the member,

the Commonwealth shall, subject to this Act, be liable to pay . . . pensions in accordance with this Division".

Mr. Francis, on behalf of the widow, placed considerable reliance upon s. 47. He submitted that s. 24, which appeared in the Act before the insertion of s.47, must be read in the light of s. 47 which "obviously widens s. 24". I am unable to accept the submission that s. 47 widens s. 24. Section 24 deals with the question of the Commonwealth's liability to pay pensions. Section 47 deals with the manner in which the Commission or a Board should perform its function of hearing and determining a claim or appeal. Section 47(2) may well result in claims being granted which, but for its provisions, would not have been granted but I am unable to hold that s. 47 can in any way widen the terms of s. 24 itself (see generally the judgment of Fisher J. in Collins v Repatriation Commission (1980) 48 F.L.R. 198 at 206-211).

As to the first question of law the Commission advanced three submissions. First it was put that, as "a matter of proper construction of s. 24(2), there was no relevant incapacity from which the member died because he died as a result of injuries sustained in a motor accident". It was said that, in order to fall within s. 24(2)(a), "a person must die from incapacity (in the sense) of the incapacity developing into a morbid condition which results in death". On a consideration of the words used in the section and of the context I am not prepared to accept that submission.

The second submission was that the words "from which he has died" in s. 24(2)(a) apply "a more strict test of causation" than the words "results from" or "arising out of" which appear in Workers' Compensation statutes, or the words "has arisen out of or is attributable to his war service" which are used in s. 101(1)(b) of the Act. In my opinion there is nothing in the words "from which he has died" or in their context which manifests an intention to require "a more strict test of causation" than if the words used in s. 24 (2)(a) were "from which death resulted".

Dr. Griffith said that there were no authorities on the words used in s. 24(2)(a) but cited a passage from the judgment of Windeyer J. in The Commonwealth v Butler (1958) 102 C.L.R. 465 as one which "underlined the fundamental difficulty of the examination and . . . confirms our incapacity to postulate any adequate expression of the required connection . . . ". The passage cited, although of some length, is here included in full because of the light it throws upon, inter alia, the difficulties in "attempted explanations of causation and consequence". At pp. 479-480 his Honour said :-

"On those simple facts the ordinary answer of an ordinary man to the question "did the death of the deceased result from the occlusion of September, 1955?", would surely be: "No. He did not die from that occlusion. He died two years later from another occlusion."

But once the simple question is elaborated by attempted paraphrases and explanations of the words "results from", logical and philosophical difficulties emerge however much judges and lawyers may assert that they are eschewing all philosophical consideration of the chain of causation. Attempted explanations of causation and consequence can, I feel, be as unhelpful and unhappy as definitions of reasonable doubt. In the search for some grounds for isolating a particular event from the totality of circumstances preceding a later event, various adjectives, such as "direct", "proximate", "decisive", "immediate", "effective" and "real," have been pressed into service to qualify "cause". From these there is an easy drift to such term as "materially contributing factor". But such formulae do not really dispel the difficulty; and they become especially unsatisfying when death is the alleged consequential event. As death sooner or later is inevitable for every man, it is impossible to ask the question - which in relation to other matters may be helpful, although not decisive - namely, whether the alleged consequence would necessarily occur at all without the happening of the earlier event to which it is sought to attribute it. Moreover, in relation to death, words such as "proximate" and "direct", as tests for choosing some one link in a chain of causation, introduce a special difficulty. For at the point of death ultimate cause and consequence tend to become indistinguishable. It is, for example, easy to say that a man's death resulted from a gunshot wound. In such a case a criminal jury might properly say that death was the result of a felonious act; yet a physician would equally properly say that the wound caused loss of blood, and that the death resulted from loss of blood. And the inquiry could be pushed a stage further by saying that the loss of blood operated to produce a fatal syncope. It is for this reason that the manner or method by which some particular injury actually operates in relation to the circulatory, respiratory or nervous system may for a physician constitute the proximate cause of death. For example, in Taylor on Medical Jurisprudence asphyxia is spoken of as the "actual cause" of death by strangulation; and there are in that work many other illustrations of physiological mechanisms, which, brought into operation by various events, end in death, being treated as its cause.

A coronary occlusion results in death when it causes such a degree of infarction that the heart ceases to function. Is the occlusion, the infarction or the cessation of the heart-beat the proximate cause of death? In the last analysis it is death itself that slits the thin-spun life.

Yet the application of the statute to the facts of this or any other case does not depend upon metaphysical speculation or the actual physiological circumstances accompanying death. It depends upon asking only whether death resulted from the injury (in this case from the occlusion of September, 1955) in the ordinary acceptance of those words. The question obviously involves an idea of causal sequence. But it tends to misconception if the question that the Act postulates, namely "did death result from the occlusion", be inverted to be "was the occlusion the cause of death". The inversion is merely linguistic; yet in its inverted form the question somehow seems more prone to attract to its answer expressions such as "contributing factor", which are, it seems to me, only attempts to define or explain an abstract idea by phrases in which the same idea lurks. The words of the statute are more easily applied without exegetical glosses."

I am not prepared to hold that the words "the incapacity . . . from which he has died" in s. 24(2)(a) could not, as a matter of law, apply to a case where "the ordinary answer of an ordinary man" (in the words of Windeyer J.) would be that death has "resulted" from incapacity in the left eye. Whether, in the present case it should be decided that the conceded incapacity was an "incapacity . . . from which (Mr. Hayes) has died" was a matter for the Tribunal to consider and determine in the light of the provisions of the Act, including the statutory direction in s. 107VH2(a) that it "shall set aside the decision" of the Commission (rejecting the widow's claim) "unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim".

The third submission advanced by the Commission as to the first question of law was that in any event the Tribunal erred in law in that it failed to properly consider the meaning of the words "from which" in s. 24(2)(a). It argued that the Tribunal applied the wrong test of causation and accordingly misdirected itself in law by considering whether the incapacity "played some material part" in the car accident. It is to be noted that the Tribunal twice used the words "service related disabilities played some material part in the cause of" (the accident). I adopt with respect, as being equally applicable to the Tribunal's use of the words "played some material part", the following passage from Windeyer J. in The Commonwealth v Butler (supra at p. 480) :-

". . . the question somehow seems more prone to attract to its answer expressions such as "contributing factor", which are, it seems to me, only attempts to define or explain an abstract idea by phrases in which the same idea lurks. The words of the statute are more easily applied without exegetical glosses."

In my opinion the Tribunal failed to properly consider the meaning of the words "from which" in s. 24 (2)(a) and their correct application to the facts of the case and accordingly erred in law.

As to the second question of law I accept Dr. Griffith's submission that the Tribunal failed to consider whether the death was "due to the serious default" of Mr. Hayes. Mr. Francis argued that, as the Tribunal had referred in its reasons for decision to s. 24, "there is no reason to think that the tribunal did not direct its mind to (s. 24(2)) (b) . . . why should the tribunal mention it in particular as it had never been raised before then by the Commission". However, on my reading of the Tribunal's decision that issue was never considered. Nor is there anything in the transcript of the proceedings before the Tribunal which suggests that it considered that question. It is of course unfortunate that the Commission was not represented before the Tribunal and that the issue of a possible "serious default" by Mr. Hayes was never raised by it.

Mr. Francis submitted that there "must have been a reasonable doubt in relation to that matter and therefore, as a matter of law, no tribunal properly directing itself could have come to any other conclusion than that section 24 (2)(b) did not apply." On the material before the Court - which was also before the Tribunal - I am not prepared to uphold that submission as a matter of law. The question of what view should be taken of the facts however is a matter for the Tribunal and it is obviously undesirable that I should discuss those facts at all in these reasons for judgment. In my opinion the Tribunal's failure to consider the question of possible "serious default" was an error of law which vitiated the Tribunal's decision.

Because of the opinions I have expressed as to the second question of law and as to the Commission's third submission on the first question of law, orders must be made allowing the appeal and setting aside the decision of the Tribunal. The Commission did not dispute that it would be a matter for the Tribunal to decide whether to hear further evidence (cf. Northrop and Sheppard JJ. in Lennell v Repatriation Commission (supra)). Accordingly the matter will be remitted to the Tribunal to be heard and decided according to law after the hearing of such further evidence as it may decide to receive. If the Tribunal decides to hear any further evidence it is not required to adjourn the hearing to enable the Commission to review its decision, having regard to that further evidence; see new sub-section (3) of s. 107VL, inserted by the Repatriation (Pharmaceutical Benefits) Amendment Act 1981, to which Act my attention was drawn by counsel for the Commission by a Memorandum delivered after the decision in this matter was reserved.

As to the third question of law in my opinion the Tribunal did not have "regard to an irrelevant consideration namely whether the member's death arose out of or was attributable to war service". The words "had . . . arisen out of or was attributable to service" appearing on page 6 of the Tribunal's decision do not form part of the Tribunal's reasons for decision. They are part of a quotation from the reasons for decision (on 26 February, 1979) of a Repatriation Board. Accordingly, I reject the Commission's submission on this question.

The fourth and fifth questions of law both related to s. 24(1) of the Act. The Tribunal's decision initially stated "the questions involved" as including a question whether the "member's death has resulted from any occurrence that happened during the period of his war service." However there are no other references in the decision to s. 24 (1) as a possible basis for the claim and there are no findings or references to evidence as to "any occurrence that happened during the period of his war service". In those circumstances and having regard to my decision that for other reasons the matter should be remitted to the Tribunal to be heard and decided again, I am not prepared to accede to the Commission's submission that no Tribunal properly instructed as to the law could find that "death . . . has resulted from any occurrence that happened during (Mr. Hayes') war service". (s. 24(1)).

This appeal having been instituted by the Commission, s. 107VZZK(2) provides that "the approved costs of the applicant in connection with that appeal shall be borne by the Commonwealth" and as requested by the Commission I order that the costs of the respondent in connection with the appeal be taxed. (s.107VZZK(4)(b)).