Repatriation Commission v Jordan, William Leslie
[1997] FCA 491
•6 JUNE 1997
CATCHWORDS
ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal - veterans' entitlements - whether tribunal accepted as reasonable a hypothesis grounded on a fact denied or not raised by the material - whether tribunal failed to consider opposing material in considering validity of reasoning supporting hypothesis - whether tribunal accepted as reasonable a hypothesis that was no more than a possibility left open but not pointed to by the material - whether tribunal considered whether factual foundation for hypothesis disproved beyond reasonable doubt
Veterans' Entitlements Act 1986 ss 9, 24, 120
Administrative Appeals Tribunal Act 1975 s 44
Bushell v. Repatriation Commission (1992) 175 CLR 408
Byrnes v. Repatriation Commission (1993) 177 CLR 564
Lowerson v. Repatriation Commission (1994) 19 AAR 488
Stares v. Repatriation Commission (unreported, 24 July 1995, Jenkinson J.)
Bell v. Repatriation Commission (1992) 26 ALD 545
Repatriation Commission v. Owens (1996) 70 ALJR 904
REPATRIATION COMMISSION V. WILLIAM LESLIE JORDAN
NO. VG 87 of 1996
Judge:GRAY J.
Place:MELBOURNE
Date:6 JUNE 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 87 of 1996
)
GENERAL DIVISION )
B E T W E E N:
REPATRIATION COMMISSION
Applicant
- and -
WILLIAM LESLIE JORDAN
Respondent
JUDGE: Gray J.
PLACE: Melbourne
DATE: 6 June 1997
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The appeal is dismissed.
The applicant pay the respondent's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 87 of 1996
)
GENERAL DIVISION )
B E T W E E N:
REPATRIATION COMMISSION
Applicant
- and -
WILLIAM LESLIE JORDAN
Respondent
JUDGE: Gray J.
PLACE: Melbourne
DATE: 6 June 1997
REASONS FOR JUDGMENT
The Repatriation Commission ("the Commission"), as applicant, has appealed from a decision of the Administrative Appeals Tribunal, in which it was determined that the aortic stenosis (narrowing or constriction of the aortic valve) suffered by William Leslie Jordan, the respondent, is a war-caused disease, within the meaning of s. 9 of the Veterans' Entitlements Act 1986 ("the Act"). The decision of the tribunal was given on 25 January 1996. It is to the effect that both Mr Jordan's aortic stenosis and his asthma are war-caused, that Mr Jordan is incapacitated from aortic stenosis and asthma, for which the Commonwealth is liable to pay a
pension in accordance with the Act, from 30 January 1993 and that, pursuant to s. 24 of the Act, Mr Jordan is eligible for payment of a pension at the special rate from 30 January 1993.
According to the facts found by the tribunal, Mr Jordan served in the airforce at Morotai and Labuan during World War II. On 4 March 1993, he underwent surgery for an aortic valve replacement. On 2 July 1993, he lodged an informal claim to have "heart-aortic valve replacement", "asthma" and "emphysema" accepted as war-caused. This was followed by a formal claim, lodged on 7 July 1993. On 7 January 1994, a delegate of the Commission diagnosed aortic stenosis, asthma and chronic obstructive airways disease, and determined that the last-mentioned was war-caused within the meaning of s. 9 of the Act. The delegate determined that aortic stenosis and asthma were not war-caused. On 21 February 1994, Mr Jordan lodged an application with the Veterans' Review Board for review of the delegate's decision. On 7 March 1995, the decision of the delegate was affirmed. On 7 April 1995, Mr Jordan lodged an application with the Administrative Appeals Tribunal for review of the affirmed decision.
During the tribunal hearing, the Commission conceded that the asthma suffered by Mr Jordan is war-caused pursuant to s. 9 of the Act, that Mr Jordan is incapacitated from asthma for which the Commonwealth is liable to pay a pension in accordance with the Act from 30 January 1993 and that the incapacity of Mr Jordan in respect of chronic obstructive airways disease and asthma should be assessed for pension purposes at one hundred per cent of the general rate, from 30 January 1993. The tribunal found in accordance with those concessions. The area of dispute, therefore, was whether the aortic stenosis is war-caused and, whether in conjunction with Mr Jordan's other war-caused conditions, it entitles him to a pension at the special rate, pursuant to s. 24 of the Act. As I have said, the tribunal determined these issues in favour of Mr Jordan.
In performing its task, the tribunal was required to apply the relevant provisions of s. 120 of the Act, which are as follows:
"(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
....
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
These provisions are not easy to apply. Their application has been the subject of elucidation by the High Court of Australia in Bushell v. Repatriation Commission (1992) 175 CLR 408 and Byrnes v. Repatriation Commission (1993) 177 CLR 564. In the latter case, at p. 571, the Court said:
"The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
In the present case, the Commission argued that the tribunal fell into error in four ways. First, it accepted as reasonable a hypothesis grounded on a fact not raised by the material before the tribunal, a fact the existence of which was denied by that material. Second, it failed to consider all the material, including the opposing material, when considering the validity of the reasoning that supported the hypothesis. Third, it accepted as a reasonable hypothesis a possibility that was no more than a possibility left open, but not pointed to, by the material before the tribunal. Fourth, it failed to give any real consideration to the question whether the factual foundation for the hypothesis had been disproved beyond reasonable doubt.
Before turning to these arguments in detail, it is necessary to examine the process through which the tribunal went in arriving at its decision. After stating the issues in the manner to which I have referred, the tribunal set out the various relevant provisions of the Act, namely ss. 9, 24 and 120, so far as they were relevant. It listed certain facts which were not in dispute. It then devoted in excess of seven pages of its reasons to summarising the evidence given by both parties before the tribunal. The summary included quotations at length from a written report of Dr Rosenbaum (a specialist cardiologist called on behalf of Mr Jordan), a written report of Dr Lubicz (a cardiothoracic surgeon, who operated on Mr Jordan on 4 March 1993 for aortic valve replacement) and from the evidence of Dr Hammond (a specialist in cardiovascular disease, who had examined Mr Jordan on 22 September 1995 and was called to give evidence on behalf of the Commission).
Following this summary, the tribunal referred to both Bushell and Byrnes and quoted at length from the majority judgment in the former. The tribunal then said:
"40.It follows from the majority in Bushell that the first requirement in this matter is for the Tribunal to determine whether the material raises a reasonable hypothesis. In doing so, the Tribunal must bear in mind that a hypothesis may be reasonable although it is unproved, but that a hypothesis cannot be reasonable if it is contrary to proven scientific facts or 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.
41.As has been stated, Dr Rosenbaum's evidence was that Mr Jordan's aortic valve narrowing (aortic stenosis) can be regarded as due to either rheumatic fever with rheumatic complications or atherosclerotic involvement of the aortic valve. He did cite a further condition, congenital abnormality of the aortic valve, however, that possibly [scil. possibility] was not pursued.
42.The question arises, therefore, whether Dr Rosenbaum's opinion, as a cardiologist of many years standing, raises a reasonable hypothesis."
The tribunal then quoted from Byrnes, from Lowerson v. Repatriation Commission (1994) 19 AAR 488, 497, and from the unreported decision of Jenkinson J. in Stares v. Repatriation Commission (24 July 1995). These quotations concerned the nature of a reasonable hypothesis of the kind referred to in s. 120(3) of the Act and the circumstances in which such a hypothesis may be regarded as having been raised.
The tribunal then proceeded:
"45.Dealing first with Dr Rosenbaum's opinion that Mr Jordan's aortic stenosis could be regarded as due to rheumatic fever with rheumatic complications, that opinion has its origins in:
(a)the doctor's understanding that during the period of his service Mr Jordan experienced two
episodes of fever, each of which was accompanied by a sore throat; and
(b)the assertion by the doctor that a sore throat is almost always present prior to actual rheumatic fever.
These facts ("the raised facts") in my view support a hypothesis which, within the meaning of s.120(3) of the Act, may be said to be reasonable. The hypothesis is not contrary to known scientific facts, nor is it obviously fanciful or impossible, incredible, not tenable, too remote or too tenuous.
46.Upon applying the provisions of s.120(1) of the Act to the hypothesis I am not satisfied, beyond reasonable doubt, that there is no sufficient ground for making a determination that Mr Jordan's aortic stenosis was war-caused.
47.As I have indicated, the hypothesis relies upon two essential facts. While there seems to be no dispute between the medical witnesses that a sore throat is almost always present prior to actual rheumatic fever, the question of whether Mr Jordan in fact experienced a sore throat during either or both of his episodes of fever while on service, was the subject of some examination during the hearing. On the one hand, as I have indicated, Mr Jordan's evidence at the hearing was that he did not experience a sore throat during either of the episodes in question. Dr Hammond's evidence was that Mr Jordan had likewise advised him when giving his medical history. On the other hand, Dr Rosenbaum had "almost certainly a correct impression" that Mr Jordan had told him he had experienced a sore throat on those occasions. In any event, it was Dr Rosenbaum's evidence, which was not challenged by the respondent, that rheumatic fever without sore throat does occur although this is not common. Dr Hammond stated that "there was no evidence to me that rheumatic fever in the sense of acute rheumatic fever with symptoms of joint pains, fever, malaria, had occurred during this period of time". As stated in paragraph 30 above, it was Dr Hart's view that the possibility of Mr Jordan having experienced rheumatic fever while at Labuan could not be excluded. Having regard for Bushell, I should perhaps add that I am satisfied that Dr Rosenbaum is a medical practitioner who is eminent in the field of cardiology."
The tribunal then proceeded to deal with the second hypothesis of Dr Rosenbaum, namely that the smoking had caused arterial disease or atherosclerosis of the large artery out of the aorta, with the disease spreading to the aortic valve, causing it to thicken. The tribunal found that this hypothesis had been disproved because of the operative findings of Dr Lubicz. The tribunal then proceeded to deal with the issue of a special rate pension, which it determined in favour of Mr Jordan.
Before dealing with the submissions of the Commission, it is appropriate to focus on the function of the Court in a proceeding such as this. By s. 44 of the Administrative Appeals Tribunal Act 1975, an appeal lies from a decision of the tribunal only on a question of law. Findings of fact cannot be canvassed in such an appeal, unless they are the result of error of law, e.g. there being no evidence at all upon which such findings could be made, or such findings being so unreasonable that no reasonable decision-maker could have arrived at them. These arguments were not put in the present case. The question whether a particular hypothesis is a reasonable one is a question of fact; the conclusion of the tribunal on that question can only be challenged in this kind of appeal if it is the result of error of law. See Bell v. Repatriation Commission (1992) 26 ALD 545, at 546 per Davies and Beaumont JJ.
The Commission's first argument was that the hypothesis accepted as a reasonable one by the tribunal was grounded on a non-existent fact. It was said that the hypothesis presented by Dr Rosenbaum, that the aortic stenosis was due to an episode of rheumatic fever experienced by Mr Jordan during his operational service was not open because Dr Rosenbaum's evidence was that a sore throat is almost always present prior to rheumatic fever. There can be no doubt that the tribunal had before it Dr Rosenbaum's hypothesis that Mr Jordan's condition was due to rheumatic fever with rheumatic complications. This was one of three conditions which Dr Rosenbaum regarded as possible causes of Mr Jordan's aortic stenosis. As Dr Rosenbaum put the hypothesis, it was based on his understanding that Mr Jordan had had a sore throat in conjunction with one or both of his episodes of fever during his operational service. Counsel for the Commission argued that evidence that Mr Jordan did not have a sore throat removed the basis for this hypothesis.
The argument comes to grief on the issue of findings of fact. In para. 22 of its reasons, the tribunal said this about the subject: "While in evidence he said that he could not recall having a sore throat during either of the fever episodes, he had apparently earlier instructed his solicitor .... that the episode at Labuan did involve a sore throat." I note that the finding expressed in terms that Mr Jordan "could not recall" having a sore throat is not the equivalent of a finding that he did not have a sore throat. Similarly, in para. 47 of its reasons, the tribunal abstained from making any definitive finding on the question whether Mr Jordan had a sore throat. In that passage, the tribunal characterised Mr Jordan's evidence as being "that he did not experience a sore throat during either of the episodes in question". This was a stronger finding against Mr Jordan than that which the tribunal made in para. 22, but it did not amount to a finding that Mr Jordan had no sore throat. The tribunal went on to refer to the fact that Dr Hammond's evidence was consistent with Mr Jordan's evidence. It then referred to the contradictory evidence of Dr Rosenbaum to the effect that Mr Jordan had told him that he had experienced a sore throat. Plainly, the tribunal was not prepared to make a finding that Mr Jordan did not have a sore throat. It left the question open. It cannot, therefore, be argued that the hypothesis which the tribunal found to exist in favour of Mr Jordan was based on a non-existent fact. As the tribunal saw it, the fact may or may not have existed.
The tribunal followed the discussion in para. 47 of its reasons of the evidence on the sore throat issue by referring again to Dr Rosenbaum's evidence, which was to the effect that rheumatic fever without a sore throat does occur, although this is not common. In other words, the tribunal took the view that the removal of the certainty of a sore throat did not undermine Dr Rosenbaum's hypothesis that the aortic stenosis was caused by a sore throat.
Counsel for the Commission criticised this reasoning in two respects. In the first place, it was said that the tribunal was constructing its own hypothesis, rather than taking one from the evidence, and that this is impermissible. There is no requirement that a hypothesis, found to exist for the purposes of s. 120(3) of the Act, be taken verbatim from the evidence of any particular witness. It is open to the decision-maker to construct a hypothesis based on the evidence. It was perfectly legitimate for the tribunal to take Dr Rosenbaum's express hypothesis that Mr Jordan's aortic stenosis was the result of rheumatic fever suffered by him during operation service, and to explore the question whether it became unacceptable by the removal of one of its underlying elements, namely the belief of Dr Rosenbaum that Mr Jordan had suffered a sore throat in conjunction with one or other of the episodes of fever. The tribunal reached the conclusion that the hypothesis did not become unacceptable if this element were removed.
The second criticism which counsel for the Commission made of this reasoning was that the resulting hypothesis, namely rheumatic fever without a sore throat, was not grounded in the facts raised by the material before the tribunal. Again, this is not so. As the findings made by the tribunal in para. 22 of its reasons reveal, Mr Jordan had two bouts of fever during his period of operational service, neither of which was diagnosed as malaria. The second involved him being confined to a tent for two weeks and continuing to feel somewhat weakened after his return to duty. These facts, coupled with the expert opinion of Dr Rosenbaum, attributing aortic stenosis to one of three conditions, of which one was excluded and another discarded, provided ample justification for the tribunal to find the existence of a hypothesis connecting Mr Jordan's condition with rheumatic fever, and finding that hypothesis to be reasonable.
The second argument put by counsel for the Commission was that the tribunal had failed to consider material before it which contradicted the evidence of Dr Rosenbaum. There is no doubt that, in determining whether there exists a reasonable hypothesis, for the purposes of s. 120(3) of the Act, the tribunal is bound to consider the whole of the material. See Bushell at p. 415 per Mason CJ., Deane and McHugh JJ. and Repatriation Commission v. Owens (1996) 70 ALJR 904.
As I have said, the tribunal devoted in excess of seven pages of its reasons to a summary of the evidence. It included a summary of the evidence of Dr Hammond, the specialist in cardiovascular diseases whose evidence was given on behalf of the Commission. Approximately three pages of the reasons were devoted to the evidence of Dr Hammond. In addition, in para. 47 of the reasons, reference was made to Dr Hammond's evidence on the crucial point. The tribunal also made findings about the evidence of Dr Darling as to his observations when operating on Mr Jordan in 1973. It is entirely unjust to accuse the tribunal of having had no regard to the evidence opposed to that of Dr Rosenbaum. Counsel for the Commission complained that the tribunal summarised inadequately, and even misrepresented, Dr Hammond's evidence. That is a complaint going to questions of fact, and cannot be entertained by this Court. The argument must be rejected.
The third point relied on by counsel for the Commission was a characterisation of what the tribunal regarded as a reasonable hypothesis as nothing more than a possibility, left open, but not pointed to, by the material before the tribunal. I have already dealt with this argument. The hypothesis that Mr Jordan suffered from rheumatic fever during his period of operational service was grounded in the material before the tribunal, even in the absence of a clear finding on the sore throat issue. The facts found in para. 22 of the tribunal's reasons and the expert evidence of Dr Rosenbaum, coupled with the rejection of one of Dr Rosenbaum's three hypotheses and the discarding of another, provided a sufficient ground. It was open to the tribunal to find that there existed a reasonable hypothesis that Mr Jordan's condition was the result of rheumatic fever, suffered by him during his operational service.
Finally, counsel for the Commission argued that the tribunal had not passed through the stages of reasoning which the High Court in Byrnes, at p. 571, described as necessary for the proper application of s. 120(1) and (3) of the Act. The contention was that the tribunal, having found that a reasonable hypothesis existed, assumed that it was not therefore established beyond reasonable doubt that Mr Jordan's disease was not war-caused. In other words, it was said that the tribunal had failed to consider the application of s. 120(1), once it had performed the task required by s. 120(3). Attention was drawn to the failure of the tribunal to refer specifically to the relevant passage from Byrnes, which I have set out earlier in these reasons for judgment.
The argument overlooks the actual reasoning of the tribunal. In para. 45 of its reasons, the tribunal reached the conclusion that there existed a reasonable hypothesis, for the purposes of s. 120(3) of the Act. In para. 46, it expressed a conclusion upon the application of s. 120(1) to the hypothesis. Paragraph 47 contains the elucidation of the reasoning of the tribunal on both of these issues. The mere fact that the tribunal set out its specific reasoning on both issues in one paragraph cannot be taken as an indication that it failed to deal with the two issues separately, when this is precisely what it has done in the two preceding paragraphs. Nor was it necessary for the tribunal to set out, or to refer specifically, to the relevant passage from Byrnes. It is sufficient that the tribunal took the necessary steps.
Throughout the submissions put on behalf of the Commission in this case, it was difficult to avoid the conclusion that the Commission took the view that findings of fact more favourable to its case should have been made by the tribunal. Counsel for the Commission realised that an appeal under s. 44 of the Administrative Appeals Tribunal Act 1975 could not succeed on the factual merits of the case. He attempted to turn what was in reality an argument as to the merits of the tribunal's decision into a question or questions of law. This attempt failed.
For these reasons, it is necessary for me to dismiss the appeal and to order the Commission to pay Mr Jordan's costs of the application.
Counsel for the applicant: Mr Peter Hanks
Solicitors for the applicant: Australian Government Solicitor
Counsel for the respondent: Mr Dino De Marchi
Solicitors for the respondent: De Marchi & Associates
Date of Hearing: 6th May 1997
Date of Judgment: 6 June 1997
I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment of his Honour Justice Gray
Associate:
Date: 6 June 1997
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