Repatriation Commission v Hughes, S.M
[1990] FCA 729
•14 DECEMBER 1990
Re: THE REPATRIATION COMMISSION
And: STELLA MARGARET HUGHES
No. G114 of 1990
FED No. 729
Administrative Law - Veterans Affairs
13 AAR 34
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)
CATCHWORDS
Administrative Law - Appeal from Administrative Appeals Tribunal - Tribunal addressed only part of the issue to be determined - whether error of law
Veterans Affairs - veteran died from carcinoma caused by smoking - whether veteran's smoking habit attributable to his war service.
Administrative Appeals Tribunal Act 1975 (Cth) - s.44
Veterans' Entitlements Act 1986 (Cth) - ss.6(1), 8, 120
HEARING
SYDNEY
#DATE 14:12:1990
Counsel for the applicant: Mr G.K. Downes QC and Miss R.M. Henderson
Solicitor for the applicant: Australian Government Solicitor
Counsel for the respondent: Mr J.P. Hamilton QC and Mr A.L. Hill and Mr
A.J. Clout
Solicitor for the respondents: Mr Kenneth Harrison
ORDER
The application be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 8 November 1990, I gave judgment in this matter and handed down reasons for judgment. Subsequently, before the order was taken out, it was brought to my notice that I had overlooked s.6(1)(d) of the Veterans' Entitlements Act 1986 (Cth)("the Act"), by virtue of which provision the whole of the veterans' war service was deemed to be operational service for the purposes of the Act. On 22 November 1990, I therefore vacated the order made on 8 November and withdrew my reasons. The reasons which I now deliver adopt much of what was said in the prior reasons but reflect the effect of s.6(1)(d) of the Act.
This is an appeal from a decision of the Administrative Appeals Tribunal which held that the death of Russell Robinson Hughes was war-caused for the purposes of the Act.
An appeal from the Administrative Appeals Tribunal is, under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), limited to a question of law. Three errors of law have been proposed. It is said that the Tribunal posed the wrong question to be answered, or more strictly that it posed as the question to be answered only a part of that question; secondly, that the Tribunal stated no reasons in relation to that part of the issue which it did not discuss; and thirdly, that in relation to that part of th issue which the Tribunal did not discuss, there was no evidence to justify the Tribunal's finding.
In its reasons for decision, the Tribunal made no reference to the statutory provisions which governed the substantive right to a pension or to the standard of satisfaction which the Tribunal was required to reach. Moreover, the Tribunal did not fully state the substantive issue before the Tribunal for, accepting that Dr Hughes' smoking habit had contributed to his death from carcinoma, it did not discuss whether his smoking habit was attributable to his war service, merely whether it developed before or during his war service.
It is, of course, an error of law for a tribunal to pose and answer the wrong question, or only a part of the criterion of which the legislation requires satisfaction. Moreover, it is an error of law for a tribunal, which is bound to state in writing its reasons for its decision, to fail to deal with the substantive issues upon which the decision turned and to state its findings and the reasons therefor. See Dornan v. Riordan (1990) 95 ALR 451 and the authorities therein referred to. See also Repatriation Commission v. Keenan (Pincus J., 29 September 1989, unreported). Judicial review is concerned not with the merits of decision-making but with the structure of decision-making. In Board of Education v. Rice (1911) AC 179 at p 182, Lord Loreburn L.C. described the duty "to listen fairly to both sides" as "a duty lying upon every one who decides anything". Procedural fairness, as described in Kioa v. West (1985) 159 CLR 550 is one aspect of this. The requirement that a decision-maker take into account material considerations and only material considerations and not make a decision to which no reasonable decision-maker would have come in the light of those relevant considerations is another aspect. The giving of reasons by a tribunal which disclose that the tribunal has listened fairly to both sides in the sense of considering the substantive issues to be resolved in the light of material considerations is another aspect. That is the structure in which decision-making operates.
These principles should not be applied technically or rigidly. Regard must be had to the needs of efficient decision-making. In Dornan v. Riordan at p 455, it was said:-
"The duty must be sensibly interpreted and applied with a view to achieving good and effective administration.
Adequate reasons are those which refer to the evidence and disclose the substantial findings and the substance of the reasons for those findings. They need not be lengthy unless the case so requires but they should enable a court to determine whether or not a reviewable error occurred.
Mr Hughes died on 24 November 1976 from carcinoma of the pancreas. His widow's claim for a pension was reconsidered by a delegate of the Repatriation Commission on 9 October 1986 and it was that decision which was the subject of the decision of the Administrative Appeals Tribunal on 13 February 1990. The matter therefore came to be considered under the Act of which s.8 provided, inter alia:-
"8.(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war- caused if -
...
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;"
The words "arose out of, or was attributable to" are satisfied if there was a causal connection between the war service and the death such that the war service contributed in a material way to the circumstance from which death resulted. It is sufficient for present purposes to refer to my discussion in Repatriation Commission v. Bendy (1989) 10 AAR 323; 18 ALD 144. See also Repatriation Commission v. Law (1980) 31 ALR 140 at pp 150-1.
It is not in dispute that Mr Hughes' war service was operation service for the purposes of the Act. The standard of proof was thus provided for in s.120(1) and (3) of the Act which read:-
"120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war- war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3) In applying sub-section (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining -
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused, as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
Mr Hughes enlisted in the R.A.A.F. on 29 May 1941. From 24 July 1942 to 29 August 1943, Mr Hughes was stationed in Darwin and his service during that period was operational service as defined by s.6(1)(b) of the Act. By virtue of the operation of s.6(1)(d) of the Act the remainder of his war service was also operational service for the purposes of the Act.
Prior to his enlistment, Mr Hughes was an active healthy man and played A-grade badminton. Early in his war service, in the second half of 1941, Mr Hughes suffered loss of weight, loss of appetite and persistent colds. An X-ray disclosed a general increase of lung markings. In the following years, these symptoms recurred from time to time and worsened. Finally, Mr Hughes was discharged as medically unfit in May 1945. Subsequently, his conditions of asthma and emphysema and were accepted as attributable to war service.
The Tribunal accepted that, prior to enlistment in the R.A.A.F. in 1941, Mr Hughes was a non-smoker and not a regular smoker and lived with his family in a house in which smoking did not occur, as alcohol and tobacco were not permitted by the mother. Mr Hughes became a regular smoker during the period of his war service. The Tribunal found that "the veteran had developed a smoking habit at least prior to his discharge from the R.A.A.F. in May 1945. Firm evidence was given by his widow, the applicant, that he was a smoker when she first met him in 1944." There was no direct evidence as to when or in what circumstances Mr Hughes acquired the smoking habit during his war service.
The Tribunal did not itself analyse what were the issues to be resolved but appears to have dealt with the matter solely on the basis presented by the representatives for the parties, particularly the representative for the Commission. Page 45 of the transcript discloses this passage:-
"So the only question is whether the smoking was a habit which he acquired during war service; is that right? The only real question, the only real issue; is that right? MR PALMA (for the Commission): Well, Mr Hill has not canvassed the other issue that is raised by Professor Coomb ..."
At p 46, the representative for the Commission referred to "reasonable hypothesis" and on p 47 of the transcript there appears this passage:-
"MR PALMA: Of course, the only question left open now is the influence of the war service on the veterans smoking habit. HON. MR PERRIGNON: You say that is the only question; the only real issue in the appeal.
MR PALMA: Yes.
HON. MR PERRIGNON: Is that right?
MR PALMA: That is right. I think that the other part of it can be ruled out. It is only a theoretical consideration at this stage and it can be totally ruled out, and that is the only issue left open. And I would say that the paucity in the evidence leaves it open for the tribunal to find that the veteran commenced smoking before service and there is no evidence of what actually happened on service in regard to his smoking habit, and then from the late 40s to 1969 the evidence from Mrs Hughes is that he was smoking two ounces of tobacco a week, and two ounces, I guess, depending on how your roll cigarettes, can ben anywhere from 50 to 100 cigarettes, and that did not change.
So, there is a gap in the evidence, and my submission is that it is open to the tribunal to say that the smoking habit commenced prior to service."
On this basis, the Tribunal posed the question for decision in these terms:-
"Therefore, the only issue between the parties was whether he developed his smoking habit before or after his enlistment."
As the standard of proof was that applicable to operational service, that is, as specified in s.120(1) and (3) of the Act, this was a sufficient description of the issue. The evidence was strong that the smoking habit which Mr Hughes had developed contributed to the carcinoma of the pancreas. Therefore, the question was whether war service contributed in a causal way to the development of that habit. It seems to me that clearly there was a reasonable hypothesis. Senior counsel pointed to my own discussion in Hamling v. Repatriation Commission (1989) 11 AAR 131 and submitted that the hypothesis must be one founded on or pointed to by the facts. But if a serviceman commences smoking during war service, then a hypothesis will readily arise that the development of the smoking habit was causally related to the war service. The connection will be pointed to by the facts of the particular serviceman's case. Proof as to precisely how and in what circumstances smoking commenced and was continued is not required. A reasonable hypothesis is sufficient. Whether the causal connection exists is then tested under the provisions of s.120(1) which requires, in the case of operational service, that the facts be found in the veteran's favour unless the contrary is established beyond reasonable doubt. The present is at least as favourable a case for the claimant in that respect as was the case considered in Law v. Repatriation Commission (1980) 29 ALR 64; (1980) 31 ALR 140; and (1981) 147 CLR 635; in which it was held that the Tribunal could not properly be satisfied beyond a reasonable doubt that there were insufficient grounds for granting the claim.
In Hamling v. Repatriation Commission, cited above, at pp 134-6, I discussed the nature of a reasonable hypothesis. I adopt what was there said and I need not repeat it. Counsel for the Repatriation Commission submitted in this present appeal that an hypothesis must be "pointed to by the facts, even though not proved on the balance of probabilities", to adopt the expression of the Court in East v. Repatriation Commission (1987) 16 FCR 517 at p 533. Of course that is so, and applications of the point may be seen in East's case, Hamling's case and Re Repatriation Commission and Bramston (1987) 6 AAR 410.
Counsel went on to submit that it was not known what occurred during Mr Hughes' war service to bring about his smoking habits and submitted that the smoking and the war service may have had a mere temporal connection. Counsel submitted that there was therefore no evidence pointing to the necessary causal connection. However, this submission confuses "hypothesis" with "evidence". The hypothesis is required by s.120(3). An hypothesis is an unproven theory or supposition. To be raised by the material as s.120(3) requires, it must be pointed to by the facts. In a case such as the present, this will occur if evidence is given that the veteran acquired a smoking habit while on war service away from home, when boredom, stress or the mere pressure of his peers may have encouraged him to do so. Once the hypothesis is raised, proof is considered under s.120(1) which requires the facts to be found in favour of the claimant unless there is satisfaction beyond reasonable doubt to the contrary.
The facts of the present case differ little from those favourably determined to a claimant in Re Marshall and Repatriation Commission (unreported, delivered 30 November 1987, Dr A.P. Renouf, Mr T.R. Russell, Dr M.E.C. Thorpe). The Tribunal in that case said:-
"Given that the commencement of the smoking of cigarettes by Mr Marshall at least to the level abovementioned was during service, given his unlikely abstinence from the practice prior to enlistment, given that he was then relieved of the anti-smoking family pressure, given that this was replaced by peer-pressure in the opposite sense, given that Mr Marshall spent much of his service life driving long distances, given that tobacco was readily and cheaply available to servicemen, given that the dangers of smoking were then unknown, a reasonable hypothesis of cause arises. In our view, the connection between smoking and service was more than temporal or circumstantial; it was also of a causal nature."
Two members of that Tribunal were also members of the Tribunal in the present case and no doubt had in mind similar considerations though they did not express them. The present may be an even stronger case than Re Marshall for Mr Hughes suffered a good deal of ill health throughout his war service and thereafter as a result of the condition of his lungs and chest which was accepted as being attributable to war service. His widow alleged that he "suffered depression and stress at his poor health condition and having to take less paying jobs at work". If his ill health contributed to induce Mr Hughes to take up smoking or to continue smoking during or after the war that would be another matter to be taken into account in favour of the claim.
It seems to me that it was not seriously arguable that the provisions of s.120(1) and (3) were not satisfied in the present case. I reject the "no evidence" submission put by senior counsel for the Repatriation Commission. Notwithstanding that the reasons of the Tribunal did not expressly deal in full with the connection between Mr Hughes' smoking habit and his war service, I could not conclude that the Tribunal had not addressed itself properly to the only question seriously in issue.
Had war service other than operational service been alleged to have had a connection with Mr Hughes' smoking habit, the standard of proof applicable would have been that stated in s.120(4), namely "reasonable satisfaction". In these circumstances, the case would have been similar to that of Repatriation Commission v. Keenan in which Pincus J. set aside a decision of the Administrative Appeals Tribunal and sent the matter back for rehearing because, the temporal relationship only having been discussed by the Tribunal in its reasons, the Tribunal had erred in law in not dealing with the entire issue which it was required to consider. Had the cases been the same, I would have followed his Honour's decision with which I respectfully agree. In the present case, however, the issue which is said not to have been considered by the Tribunal was not seriously arguable.
For the reasons I have given, the decision under appeal will be dismissed with costs.
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