Repatriation Commission v Leighton
[2001] FCA 246
•15 MARCH 2001
FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Leighton [2001] FCA 246
VETERANS’ AFFAIRS – veterans’ entitlements – appeal from decision of Administrative Appeals Tribunal – whether Tribunal approached matter correctly pursuant to s 120(3) of the Veterans’ Entitlements Act 1986 (Cth) – whether Tribunal assessed case by reference to all material before it – whether Tribunal erred in application of relevant law – whether Tribunal erred in assuming it was obliged to accept hypothesis as reasonable because expert not shown not to be appropriately qualified – whether observations by Tribunal infelicitous – whether incorrect statement of law basis of decision – whether open to Tribunal on facts to find hypothesis reasonable.
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Veterans’ Entitlements Act 1986 (Cth) ss 120(1), (3)Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 referred to
Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415 referred to
Deledio v Repatriation Commission (1997) 47 ALD 261 considered
East v Repatriation Commission (1987) 16 FCR 517 at 532 applied
Repatriation Commission v Owens (1996) 70 ALJR 904 referred to
Woodman v Repatriation Commission (1997) 46 ALD 795 referred to
Repatriation Commission v Bey (1997) 79 FCR 364 at 367, 374 referred to
Winch v Repatriation Commission (1999) 55 ALD 351 at [12] referred to
Repatriation Commission v Webb (1998) 51 ALD 575 at 581 referred to
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 applied
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 appliedREPATRIATION COMMISSION v RUTH LESLIE LEIGHTON
V 177 of 2000
WEINBERG J
15 MARCH 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
V 177 OF 2000
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
RUTH LESLIE LEIGHTON
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
15 MARCH 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
V 177 OF 2000
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
RUTH LESLIE LEIGHTON
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
15 MARCH 2001
WHERE MADE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the AAT”) given on 28 February 2000. By a majority, the AAT set aside a decision of the applicant (“the Commission”), and substituted a decision that the death of the respondent’s husband, Dr Peter Leighton, was war-caused within the meaning of s 8 of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). The effect of that decision was to render the Commonwealth liable to pay pension to the respondent, Mrs Leighton, under s 13 of the VE Act.
Background facts
Dr Leighton rendered operational service with the Australian Army in New Guinea and the South West Pacific during World War II. Part of his service included 12 months as a member of a crew of an ambulance boat in 1945. Mrs Leighton gave evidence that her husband commenced smoking cigarettes during his war service and that he was smoking about 20 cigarettes a day in 1949, when she first met him. As a member of the ambulance boat crew, Dr Leighton was exposed to the exhaust fumes from the boat’s engines and those fumes contained benzene.
Dr Leighton died on 21 February 1997, at age 74. The relevant cause of death was myelofibrosis, a condition in which the bone marrow is replaced with fibrous tissue, and is a precursor to leukaemia.
Relevant legislative provisions
As Dr Leighton had operational service, the question whether his death was war-caused was to be determined by reference to the standard of proof in ss 120(1) and (3) of the VE Act. Those sections provide:
“(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.
Note: This subsection is affected by section 120A.
…
(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.
Note: This subsection is affected by section 120A.”
Those provisions required the AAT firstly to determine whether all of the material raised a reasonable hypothesis connecting the veteran’s death with the particular circumstances of his war service, and secondly, if such a reasonable hypothesis was raised, then to determine whether the factual foundation for that hypothesis was disproved beyond reasonable doubt – see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.
There is no Statement of Principles issued by the Repatriation Medical Authority under s 196B(2) of the VE Act in respect of myelofibrosis, therefore the question of whether a reasonable hypothesis was raised was to be determined solely by reference to ss 120(1) and (3).
The case before the AAT
The hypothesis relied on by the respondent was that during his war service Dr Leighton was exposed to inhalation of benzene which was a causal factor in the development of his myelofibrosis. It was claimed that benzene inhalation resulted from cigarette smoking and also from inhalation of petrol fumes while Dr Leighton was serving on the ambulance boat from January 1945 to December 1945.
The smoking hypothesis was supported by Dr John Bisby, a physician specialising in occupational medicine. It was opposed by Professor Richard Fox, Professor and Director of the Department of Haematology and Medical Oncology at the Royal Melbourne Hospital, and Professor Hedley Peach, Professor of Public Health at the University of Melbourne, and an epidemiologist.
The inhalation of fumes hypothesis was supported by Dr Des Parkin of the Austin and Repatriation Medical Centre, who was Dr Leighton’s treating haematologist. It was disputed by Professor Fox, Professor Peach and Dr Bisby. The AAT set out in detail the evidence of each of those expert witnesses. In summary, the evidence relating to a possible link between the inhalation of exhaust fumes and myelofibrosis was as follows:
·Dr Parkin, in a report dated 15 September 1997, suggested that myelofibrosis could be connected to “substantial exposure to…benzene”. In another report, dated 12 December 1997, he referred to epidemiological studies recording an association between exposure to benzene and myelofibrosis and noted that Dr Leighton was exposed to benzene while serving on the ambulance boat. The AAT noted that Dr Parkin “dropped his earlier requirement that exposure to benzene must be “substantial”.
·In his oral evidence Dr Parkin varied the hypothesis to include the fact that the risk of contracting leukaemia (a disease to which myelofibrosis can be a precursor) can be related to the degree and length of exposure to benzene. However, the AAT noted that the study on which Dr Parkin relied in giving this evidence referred only to “highly exposed occupational cohorts”.
·Dr Parkin relied on a paper by Sir Richard Doll, of the Clinical Trial Service Unit and Epidemiological Studies Unit of the Radcliffe Infirmary in Oxford. Dr Parkin said that the paper supported the hypothesis that low-level benzene exposure could cause leukaemia and, by extension, myelofibrosis. The AAT referred to a “number of inaccuracies in Dr Parkin’s evidence” on the Doll paper.
·Dr Bisby expressed the opinion that there was no risk of myelofibrosis at the veteran’s level of exposure to benzene. Dr Bisby also expressed the opinion that Dr Leighton would have had low levels of exposure to benzene during his war service.
·Professor Fox and Professor Peach agreed that there was a reasonable hypothesis that a link existed between “significant occupational exposure” and myelofibrosis. However, in their opinion the extent of Dr Leighton’s exposure to benzene during his war service could not raise a reasonable hypothesis of an association with myelofibrosis.
·The AAT noted that Dr Parkin relied upon a “China study” which showed an increased risk of leukaemia for relatively low levels of exposure to benzene. If the study (not identified by Dr Parkin) was a particular paper by Hayes et al, the AAT said, Dr Parkin had not referred to “one significant matter” regarding that paper: the study showed “no evidence of myelofibrotic syndrome as a sequel of benzene exposure”.
·Professor Fox wrote, “the suggestion of an association between benzene exposure (if obviously significant) and the development of myelofibrosis is not…fanciful”, but went on to suggest that Dr Leighton would have experienced a lower exposure to benzene than the everyday experience in Melbourne during the war.
·Professor Peach referred to several epidemiological studies that implicated long-term exposure to benzene in the development of myelofibrosis. He said in his oral evidence that benzene would only cause myelofibrosis in high concentrations. He concluded that Dr Leighton’s exposure to benzene while working on the ambulance boat “for 18 months during service did not cause myelosclerosis”. In his oral evidence, Professor Peach said:
“So even trying to give the veteran the maximum possible benefit, I couldn’t bring the figures anywhere near the threshold figures that have been found from the cohort studies”.
The AAT’s decision
In relation to the smoking hypothesis, the AAT found that Dr Bisby’s evidence did not raise or point to a reasonable hypothesis because it stemmed from his mistaken view that myelofibrosis was the same condition as myelodysplastic syndrome. Because Dr Bisby relied on epidemiological studies connecting myelodysplastic syndrome with smoking, the smoking hypothesis was not raised or pointed to by the material before the AAT.
In respect of the inhalation of fumes hypothesis, in determining whether, on a consideration of the material as a whole, a reasonable hypothesis was raised connecting the death of Dr Leighton with the circumstances of his service, the majority of the AAT approached the matter on the basis that there was no dispute that about the fact that Dr Leighton’s exposure to benzene from exhaust fumes was low.
Three of the expert witnesses said that “significant” or “substantial” levels of exposure were required to raise a reasonable hypothesis between benzene and myelofibrosis. Only Dr Parkin advanced the opinion that a low exposure to benzene (such as that involved in Dr Leighton’s circumstances) could be significant. Dr Parkin’s evidence in this regard was not supported by any studies or other medical or scientific material. The AAT noted that “There seem to be a number of inaccuracies in Dr Parkin’s evidence”, and that there were several omissions. The AAT went on to weigh up in some detail the different opinions of, and material relied upon by, the expert witnesses.
The AAT then referred to Bushell v Repatriation Commission (1992) 175 CLR 408, and set out the following passage from pages 414-415 of their Honours’ decision :
“…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” (East v. Repatriation Commission (1987) 16 FCR 517 at 532).
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s.120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s.120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.” (footnote omitted)
The AAT then summarised the above passage from Bushell as follows:
“In that passage their Honours have stated:
(i) conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable;
(ii) it is not the function of s 120(3) to require this Tribunal to determine whether one medical opinion is to be preferred to another;
(iii) we are bound to have regard to the medical and scientific material;
(iv) we must use that material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between Dr Leighton’s death from myelofibrosis and his possible exposure to benzene from the inhalation of exhaust fumes and/or from smoking,
(v) we must bear in mind that a hypothesis may still be reasonable although unproved and opposed to the weight of informed opinion.”
The AAT noted that it was required to consider the “validity” of Dr Parkin’s reasoning, and referred to the judgment of the Full Court of this Court in Repatriation Commission v Bey (1997) 79 FCR 364 where their Honours said at 372:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker.”
The AAT further noted that conflict with other medical opinions was not sufficient to reject a hypothesis as reasonable and that in accordance with the High Court’s observations in Bushell it was not its task to express a preference for one medical opinion over another.
The AAT then referred to the judgment of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 (which it saw as having been endorsed by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82), and in particular to the following passage of his Honour’s judgment at 274:
“The concept of “sound medical-scientific evidence” introduced by the 1994 amendments is a standard not unlike the Frye test. In this respect at least, the Parliament has accepted the Baume Committee’s criticism of “doctor shopping”. If an SoP applies to the particular kind of injury, disease or death in question, a hypothesis will no longer satisfy the test of reasonableness merely by having some expert evidence to support the medical-scientific aspects of the hypothesis. To illustrate by a variation on the facts of the present case, let it be assumed that it could only be established that the veteran increased his animal fat consumption by 20 per cent to 50 gm/day for ten years. Dr X, an appropriately qualified specialist, is called to say that in his opinion that level of consumption could be sufficient to cause malignant neoplasm of the prostate. The Commission calls three of the country’s leading specialists who vehemently disagree. They say that an increase by at least 40 per cent to at least 70 gm/day for at least twenty years is the minimum required before fat intake can play any part in the development of this cancer. Under Bushell, the hypothesis is nevertheless reasonable. Under the SoP regime it is not.”
The AAT said at paragraph 86 of its reasons for decision:
“We regard Bushell and the two Deledio decisions as establishing that unless we are satisfied that Dr Parkin is not “an appropriately qualified specialist”, the hypothesis he advanced must be held to be “a reasonable hypothesis” connecting Dr Leighton's death from myelofibrosis with the circumstances of the service rendered by Dr Leighton.” (emphasis added)
The AAT then summarised its findings as to the evidence given by the various experts, including that of Dr Parkin. Of Dr Parkin the AAT said:
“As he readily acknowledged, he is not an epidemiologist. The hypothesis relied on as to benzene exposure does depend on epidemiological studies. Not only did Dr Parkin decline to answer some questions as to those studies on the ground that he is not an epidemiologist, there were also some inaccuracies in his evidence as to some studies. Those matters give rise to some concern but we cannot find that he is not an appropriately qualified specialist.” (emphasis added)
It further said that Dr Parkin’s hypothesis “lacked credibility” when the evidence of Professor Fox and Professor Peach was considered, and that Dr Parkin “adopted a role akin to that of an advocate rather than that of an expert in the relevant field of knowledge”.
The AAT concluded that notwithstanding these criticisms it could not find that Dr Parkin was not an appropriately qualified specialist, and eminent in his field. It said at paragraph 91 of its reasons for decision:
“We consider that as explained by Heerey J in Deledio we must find that in the absence of a SoP dealing with myelofibrosis, “[U]nder Bushell, the hypothesis is nevertheless reasonable”.”
Having concluded that it was obliged to find that Dr Parkin’s hypothesis was a reasonable hypothesis within s 120(3), the AAT proceeded to s 120(1) of the VE Act and found that it could not be satisfied beyond reasonable doubt that the necessary factual foundation for the hypothesis did not exist. Accordingly the claim must succeed.
Grounds of appeal
The errors of law raised by the Commission focus on:
(a)the proper construction of s 120(3) of the VE Act; and
(b)the proper approach by decision-makers under the VE Act to conflicting medical and scientific opinions when determining if a reasonable hypothesis is raised by the material.
The Commission contended that the AAT erred in law in failing to determine whether the hypothesis advanced to support Mrs Leighton’s claim was reasonable, in light of the opposing material before the AAT, and in assuming that the evidence of a medical witness supporting a hypothesis must be accepted for the purposes of s 120(3) of the VE Act unless the AAT could find that the medical witness was not an appropriately qualified specialist eminent in his field.
The Commission contended that the AAT erred in law in failing to evaluate the reasoning advanced in support of the hypothesis by reference to the opposing material. It could not presume a medical witness to be appropriately qualified, let alone eminent, in the relevant field.
The Commission’s submissions
Counsel for the Commission, Mr Hanks QC, submitted that the AAT disabled itself from considering a critical issue which it was required to address, namely whether an examination of the whole of the material enabled it to conclude that the hypothesis advanced by Dr Parkin was a reasonable hypothesis, in accordance with the requirements of s 120(3).
Mr Hanks submitted that the primary error of the majority of the AAT came about by reason of its application and interpretation of Heerey J’s observations in Deledio (supra). He submitted that the AAT viewed itself as being required to find that Dr Parkin’s hypothesis was reasonable unless it could be positively satisfied that he was not an appropriately qualified specialist. Despite the reservations that the majority held about Dr Parkin’s evidence, and his hypothesis, it was clear that the AAT felt bound to accept it as reasonable, because his expertise was not proven to be lacking and he was an eminent specialist. Mr Hanks submitted that because it felt bound in this way, the majority did not consider the material as a whole and consequently failed to fulfil the requirements of s 120(3) of the VE Act.
Mr Hanks submitted that the finding that Dr Parkin’s hypothesis “lacked credibility” should have been sufficient of itself to exclude that hypothesis. In support of this submission he referred to East v Repatriation Commission (1987) 16 FCR 517 at 532, where the Full Court accepted that “to be reasonable, a hypothesis must possess some degree of acceptability or credibility”. That proposition, it was submitted, was endorsed by four members of the Full Court in Bey (supra).
Mr Hanks submitted that if the finding regarding the credibility of Dr Parkin’s hypothesis was not sufficient to dispose of the hypothesis, other findings should have supported a conclusion that the hypothesis was not reasonable. Such findings included the reasoned critique of Dr Parkin’s hypothesis advanced by the other witnesses, the inaccuracies and gaps in Dr Parkin’s evidence and his concession that he was not an epidemiologist, the field from which the relevant evidence was drawn.
Mr Hanks submitted that the only reason that the AAT did not conclude, from all of these findings, that Dr Parkin’s hypothesis was not reasonable, was that it had been advanced by a witness who was considered by the majority to be “an appropriately qualified specialist” in accordance with the test which it erroneously assumed had been formulated by Heerey J in Deledio. He submitted that the language of pars 86 and 91 of the majority’s reasons for decision clearly reflected this assumption.
Mr Hanks submitted that the observations of the AAT in those two paragraphs reflected more than merely an infelicitous use of language. He acknowledged that if he was wrong about that contention, and the paragraphs in question revealed nothing more than an unfortunate mode of expression, no error of law could be demonstrated on the part of the majority. If, on the other hand, those paragraphs revealed a belief on the part of the majority that the AAT was obliged to uphold Dr Parkin’s hypothesis merely because he had not been shown not to be “an appropriately qualified specialist”, then that clearly amounted to an error of law.
Mr Hanks submitted that the error into which he claimed the AAT had fallen was evidenced by the fact that as one read through the majority’s reasons for decision, paragraph by paragraph, it appeared to be setting up for a decision that Dr Parkin’s hypothesis was not reasonable, given the various findings made in relation to him, and to his evidence, until the point where reference was made to the passage from the judgment of Heerey J in Deledio. At that point, it was submitted, the majority’s train of reasoning was interrupted and it was then diverted, following, what it incorrectly perceived to be a binding statement of law made by Heerey J.
In any event, Mr Hanks submitted, the authority of the High Court and Full Court of this Court stood against the proposition which the majority derived from the passage taken from the judgment of Heerey J. In Bushell (supra) Mason CJ, Deane and McHugh JJ stressed (at 415) that s 120(3) required decision-makers “to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports that claim that there is a connection between the incapacity of death and the service of the veteran”. Mr Hanks also referred to Repatriation Commission v Owens (1996) 70 ALJR 904 where the High Court emphasised the need for the AAT to answer the question of whether a reasonable hypothesis exists by reference to the whole of the material before it. In this regard, Mr Hanks also referred to Woodman v Repatriation Commission (1997) 46 ALD 795; Repatriation Commission v Bey (supra) at 367, 374; Winch v Repatriation Commission (1999) 55 ALD 351 at [12]; and Repatriation Commission v Webb (1998) 51 ALD 575 at 581.
Finally, Mr Hanks submitted that apart from the fundamental error made by the AAT in failing to evaluate Dr Parkin’s hypothesis by reference to the opposing expert evidence, it appeared to have proceeded on the basis that it was required to treat Dr Parkin as an “appropriately qualified specialist” unless it was positively satisfied to the contrary. Given that Dr Parkin acknowledged that he was not an epidemiologist, and given also the AAT’s finding that he acted in a role akin to that of an advocate rather than an expert witness, how then, Mr Hanks asked rhetorically, could the majority have assumed Dr Parkin’s relevant qualifications and eminence?
The respondent’s submissions
Mr Moore, counsel for the respondent, submitted that the AAT had not proceeded on an incorrect basis and had not erred in law in deciding that the hypothesis advanced by Dr Parkin was a reasonable hypothesis within the meaning of s 120(3) of the VE Act.
Mr Moore acknowledged that the language chosen by the majority of the AAT in pars 86 and 91 of the reasons for decision, was perhaps infelicitous. He submitted, however, that when the reasons for decision were read as a whole, and those two paragraphs were read in context, they were open to a different and more benign interpretation than that for which Mr Hanks contended. He submitted that it was not the role of the Court to concern itself with the looseness in terminology or unhappy phrasing of tribunals when considering whether an error of law has been made: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
Mr Moore submitted that notwithstanding its reservations about Dr Parkin, it had been open to the AAT to regard him as being sufficiently credible to warrant its conclusion that his evidence gave rise to a reasonable hypothesis. He submitted that the AAT had not rejected Dr Parkin as a witness of truth, and had accepted that he was a specialist who was highly qualified and eminent in his field. Provided it could find that it had sufficient confidence in his general expertise, and in the truthfulness of the evidence which he gave, then all of the contrary medical and scientific evidence relied upon by Mr Hanks would not necessarily be sufficient to dissuade it from characterising Dr Parkin’s hypothesis as reasonable. He submitted that one reached that conclusion having regard to the manner in which the AAT had exhaustively analysed all of the evidence given by all of the experts in the 85 paragraphs which preceded par 86.
Mr Moore submitted that the conclusion that the AAT arrived at was consistent with the evidence, and consistent also with the law as analysed throughout the reasons for decision. The AAT had clearly given consideration to whether or not Dr Parkin’s hypothesis was “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous” - East v Repatriation Commission (1987) 16 FCR 517 at 532. The majority had noted, for example, that the evidence of Professor Peach was that a causal nexus between non-occupational exposure to benzene and myelofibrosis was very unlikely but not shown to be impossible. The reference to the evidence of Professor Peach was part of a careful weighing on the part of the majority of the competing views of the experts which reflected a correct appreciation of the task which the AAT was required, in accordance with the authorities, to carry out. Mr Moore also submitted that regardless of any error that might have been made in pars 86 and 91, the ultimate finding made by the majority was open to it, and was amply justified by the material before it.
Conclusions
It is clear that if majority of the AAT approached the resolution of the issue before it in the manner contended for by the Commission, it fell into legal error. I accept Mr Hanks’ submission that the observations contained in the passage quoted from the judgment of Heerey J in Deledio were not intended to be read prescriptively, as laying down a test which must be applied rigidly, and in a literal manner. Rather, those observations were intended to do no more than assist in identifying the difference, in broad terms, between the approach required for cases under the VE Act where an SoP has been determined, and those cases governed only by ss 120(1) and (3).
Having given this matter careful consideration, I am not persuaded that the majority of the AAT decided this case upon the basis contended for by Mr Hanks. In the reasons for decision it set out impeccably the evidence given by each of the experts whose views were to be taken into account, and compared and contrasted those views. It also set out accurately the relevant legislative provisions and summarised with care the complex body of case law which has built up around those provisions. There is nothing to suggest that the majority in any way misconceived the effect of decisions such as Byrnes, Bushell, East or Bey. It is those decisions, rather than the passage drawn from the judgment of Heerey J in Deledio, which lay down the general principles to be applied by the AAT. The meticulous examination of the competing views of the experts, including the careful weighing of the strengths and weaknesses of those views, satisfies me that the majority fully understood the nature of the task which it was required to perform. Up to the point where it referred to the passage from the judgment of Heerey J in Deledio, there is nothing to indicate that it did not properly understand the matters which it was required to take into consideration.
The majority of the AAT clearly had some reservations about Dr Parkin’s evidence. It expressed those reservations in no uncertain terms. However, upon a fair reading of the reasons for decision, it was not prepared to characterise Dr Parkin’s evidence as being “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”: East (supra). That was a conclusion which, assuming it applied the correct legal principles, was open to the majority, a proposition with which Mr Hanks did not cavil.
I am not persuaded by Mr Hanks’ contention that the majority “disabled itself” from considering the weight properly to be accorded to Dr Parkin’s evidence by reason of a simplistic finding that it could not be assumed that he was not “an appropriately qualified expert”. Had the majority approached the matter in this way, as one reading of pars 86 and 91 admittedly suggests it might have done, there would have been no need for it to have engaged in the careful weighing of the evidence of the various experts which it did. It would have been sufficient for it to have based its decision simply upon the finding that Dr Parkin was not shown not to be relevantly “qualified”.
In my view pars 86 and 91, when read in context, reveal nothing more than an infelicitous use of language on the part of the majority. I note that in both these paragraphs reference was made not merely to Deledio, but also to Bushell, a judgment which had been the subject of detailed analysis earlier in the reasons for decision. In approaching the question of the meaning to be attributed to these paragraphs, it is necessary to bear in mind the warning of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 against scrutinising too closely the words of a tribunal when reviewing its decision. It is perhaps regrettable that the majority did not express itself more carefully in these paragraphs. I can well understand why the Commission formed the view that the majority fell into the error for which Mr Hanks contended. However, having regard to the reasons for decision as a whole, I am not persuaded that it did in fact do so.
I do not accept that pars 86 and 91 demonstrate that the majority totally misconceived what Heerey J said in Deledio by elevating what was plainly nothing more than an example intended to provide general guidance into a binding statement of law. When read in context these paragraphs are open to a somewhat different interpretation. I note for example the reference in par 85 to the fact that Heerey J’s comments were obiter dicta, as in that case there was an SoP. I note also the majority’s use of the word “establishing” in par 86 which is attended with imprecision, and its use of the word “must” in par 91. The word “must” was itself preceded by the assertion that the majority had considered the whole of the material before the AAT, that it had reservations about “some aspects” of Dr Parkin’s evidence, but that it could not find that he was not an “appropriately qualified specialist” and eminent in his field.
The weight to be accorded to Dr Parkin’s evidence was a matter for the AAT and not for this Court. In my view, the majority, though not by any means convinced by Dr Parkin’s evidence, considered that it gave rise to a reasonable hypothesis which could not be excluded beyond reasonable doubt. That conclusion was open to the AAT, and the approach which it took to Dr Parkin’s evidence accorded with the requirements of ss 120(1) and (3) of the VE Act.
The principles laid down in both Pozzolonic, and Wu Shan Liang suggest that the language in which the majority expressed itself in pars 86 and 91 should not be pored over pedantically, with a mind attuned to searching for legal error, but rather should be read in a broad and commonsense manner, and above all in the context of the reasons for decision taken as a whole.
It follows that the application must be dismissed and the decision of the AAT affirmed. The applicant must pay the respondent’s costs.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 15 March 2001
Counsel for the Applicant: Mr PJ Hanks QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Mr G Moore Solicitor for the Respondents: Williams Winter & Higgs Date of Hearing: 7 March 2001 Date of Judgment: 15 March 2001
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