Repatriation Commission v McKenna

[1998] FCA 787

FEDERAL COURT OF AUSTRALIA

DEFENCE AND WAR - veterans - appeal from decision of the Administrative Appeals Tribunal that affirmed the decision of the Veterans’ Review Board to set aside the applicant’s decision to reject the respondent’s claim for a disability pension - whether veteran’s ischaemic heart disease and atherosclerotic peripheral vascular disease were war‑caused diseases - claim lodged after 1 June 1994 - whether Tribunal adopted correct approach - whether a causal link or connection between ischaemic heart disease and atherosclerotic peripheral vascular disease, hypertension, stress, anxiety or a psychiatric condition and operational service - s 120A(3) of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) - application of Statement of Principles - whether the hypothesis raised by the material and said to connect the two heart diseases with the respondent’s operational service was upheld by the Statements of Principles in relation to the two diseases and the Statement of Principles in relation to hypertension - no reference to stress, anxiety or a psychiatric disturbance as a factor in the Statement of Principles for hypertension.

DEFENCE AND WAR - s 120 of the Act - onus of proof - whether Tribunal erred in casting on applicant the onus of proving, beyond reasonable doubt, that the respondent’s hypertension was related to his operational service.

Veterans’ Entitlements Act 1986 (Cth): s 9, s 120, s 120A(3), s 196B

Deledio v Repatriation Commission (1997) 47 ALD 261 - considered and applied

Repatriation Commission v Deledio (unreported, 22 April 1998, Beaumont, Hill and O’Connor JJ) - considered and applied

REPATRIATION COMMISSION v KEVIN JOHN McKENNA
VG 741 of 1997

GOLDBERG J
MELBOURNE
3 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 741 of 1997

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	KEVIN JOHN McKENNA Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	3 JULY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is allowed.

1. The decision of the Administrative Appeals Tribunal is set aside and in lieu thereof it is ordered that the application for review of the decision of the Veterans’ Review Board on 11 July 1996 be allowed and that in lieu thereof it is ordered that the application by the respondent to the Veterans’ Review Board to review the decision of the applicant on 23 March 1995 be dismissed.

1. The parties pay and bear their own costs of and incidental to the appeal.

1. Pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) a costs certificate is granted to the respondent in respect of the appeal whereby it is stated that in the opinion of the Court it would be appropriate for the Attorney-General to authorize a payment under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs incurred by the respondent in relation to the appeal.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 741 of 1997

BETWEEN:	REPATRIATION COMMISSION Applicant
AND:	KEVIN JOHN McKENNA Respondent

JUDGE:	GOLDBERG J
DATE:	3 JULY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

The applicant appeals to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) on 28 November 1997 whereby the Tribunal affirmed the decision of the Veterans’ Review Board on 11 July 1996. By that decision the Veterans’ Review Board set aside a decision of the applicant which rejected the respondent’s claim for a disability pension for ischaemic heart disease and atherosclerotic peripheral vascular disease and substituted the decision that the respondent’s ischaemic heart disease and atherosclerotic peripheral vascular disease were war‑caused diseases as defined in s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) and that the Commonwealth was liable to pay the respondent a pension in respect of incapacity, if any, from those conditions.

Background

The respondent, born on 1 August 1922, served in the Australian Army from 2 January 1942 to 15 March 1943 and served in the Royal Australian Air Force from 16 March 1943 to 22 May 1946. Both parties agreed that the respondent was to be taken to have rendered operational service from 2 January 1942 to 22 May 1946. The respondent was first diagnosed as suffering from hypertension in 1964 and on 29 November 1984 the respondent lodged a claim with the applicant for the acceptance of his hypertension condition being service‑related. On 21 November 1985 the delegate of the applicant determined that the respondent was suffering from an incapacity resulting from essential hypertension which was accepted under s 101 of the Repatriation Act 1920 (Cth) with effect from 29 August 1984. A pension was granted at 20% of the general rate with effect from that date.

The clinical onset of the respondent’s ischaemic heart disease was in 1987 and the clinical onset of his atherosclerotic peripheral vascular disease was in 1990.  The respondent lodged his claim for ischaemic heart disease and atherosclerotic peripheral vascular disease on 9 December 1994 and on 23 March 1995 the delegate of the applicant found that the circumstances of the case did not satisfy the Statements of Principles issued by the Repatriation Medical Authority in respect of ischaemic heart disease and atherosclerotic peripheral vascular disease and, as a result, the delegate found that all the evidence did not raise a reasonable hypothesis connecting ischaemic heart disease and atherosclerotic peripheral vascular disease with operational service.  Accordingly the delegate was unable to accept the diseases as war‑caused.

On 11 July 1996 the Veterans’ Review Board set aside that decision and held that the two diseases suffered by the respondent were war‑caused. An application for review by the Tribunal was lodged on 22 October 1996. Because the respondent had rendered operational service the question whether his ischaemic heart disease and atherosclerotic peripheral vascular disease were war‑caused fell to be determined by applying s 120(1) and s 120(3) of the Act to his claim in the manner explained in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. The respondent lodged his claim after 1 June 1994 and so the application of s 120(1) and s 120(3) is affected by, and is subject to, s 120A which was introduced into the Act by the Veterans’ Affairs (1994‑95 Budget Measures) Legislation Amendment Act 1994 (Cth).

Decision of the Tribunal

The Tribunal analysed the reasoning of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, (affirmed on appeal, 22 April 1998, unreported, Beaumont, Hill and O’Connor JJ), identified the relevant Statements of Principles concerning ischaemic heart disease (No 140 of 1996 as amended by No 77 of 1997) and atherosclerotic peripheral vascular disease (No 87 of 1995), noted that there was no dispute that the respondent suffered from hypertension which was present and diagnosed before the clinical onset of both his ischaemic heart disease and his atherosclerotic peripheral vascular disease and said in paragraph 25:

“Applying the SoPs as explained by Heerey J in Deledio I am satisfied that the facts raised by Mr McKenna of hypertension related to service resulting in or leading to ischaemic heart disease and atherosclerotic peripheral vascular disease give rise to a reasonable hypothesis which connects the relevant diseases with the circumstances of the particular service rendered by Mr McKenna. I am also satisfied that that hypothesis is upheld by the relevant SoPs, so as to satisfy s 120A(3) of the Act. I find that the material before me raises a reasonable hypothesis connecting Mr McKenna’s ischaemic heart disease and his atherosclerotic peripheral vascular disease with his service.”

The Tribunal then noted that having raised two reasonable hypotheses the respondent would succeed in respect of both hypotheses:

“... unless one of the facts necessary to support either reasonable hypothesis is disproved beyond reasonable doubt, or the truth of a fact inconsistent with a hypothesis is proved beyond reasonable doubt.”

Before the Tribunal the applicant contended that the only fact which was not present in respect of each of the relevant hypotheses was the existence of hypertension relating to the relevant service rendered by the respondent.  The applicant contended that notwithstanding the determination of the delegate of the applicant on 21 November 1985 and the evidence on which it was based, the Tribunal should find that the fact of the respondent’s hypertension being related to relevant service was disproved beyond reasonable doubt because the stress/hypertension theory did not receive endorsement in the Statement of Principles (No 83 of 1995) relating to hypertension.

There was expert medical evidence before the Tribunal that there was a body of medical thought supporting the theory that the respondent’s hypertension might be related to his stress during war‑service and that it was possible on the respondent’s history.  The Tribunal concluded:

“There is no evidence before me that disproves the fact that Mr McKenna’s hypertension is related to his service, nor is any fact inconsistent with that hypothesis proved beyond reasonable doubt.  Thus applying the reasoning laid down by Heerey J, the decision under review, which found that Mr McKenna’s ischaemic heart disease and atherosclerotic peripheral vascular disease were war‑caused, must be affirmed.”

The Tribunal considered whether it was precluded from relying on any factors connecting hypertension with service which are not in the Statement of Principles relating to hypertension:  Re Jenkin v Repatriation Commission (1997) 24 AAR 494. The Tribunal said that that decision decided that if it was looking at a claim made after 1 June 1994 for hypertension to be accepted as war‑caused, it would be so precluded because of s 120A of the Act. In this respect the Tribunal said:

“But here hypertension was accepted as service‑related or war‑caused in 1985 with effect from 29 August 1984.  The question is not whether hypertension should be found to be a war‑caused disease, but whether the Repatriation Commission has proven beyond reasonable doubt that Mr McKenna did not suffer from hypertension related to service before the clinical onset of his ischaemic heart disease and of his atherosclerotic peripheral vascular disease.  I find that the Repatriation Commission has not done so.”

The Tribunal then considered whether it should, in substance, reconsider the facts underlying the 1985 determination that the respondent’s hypertension was war‑caused in the light of Langley v Repatriation Commission (1993) 115 ALR 51. The Tribunal saw no error in that determination and saw no reason to re‑examine the determination that the respondent’s hypertension was service‑related. The Tribunal then concluded:

“However, applying the relevant SoPs as explained by Heerey J in Deledio, the respondent’s argument based on Langley is not relevant.  The issue is not whether the Tribunal can, or should, look behind the determination accepting hypertension as a war‑caused disease, but rather whether the Commission has satisfied the Tribunal beyond reasonable doubt that the hypertension was not related to service.  It is not necessary for the Tribunal to be positively satisfied, in a case to which the reasonable hypothesis standard of proof applies, that the hypertension was related to service.  The onus was on the Commission to disprove that fact beyond reasonable doubt.  It has not done so.”

Relevant s 196B Statements of Principles

In accordance with s 196B of the Act the Repatriation Medical Authority has determined Statements of Principles for atherosclerotic peripheral vascular disease, ischaemic heart disease and hypertension.

The Statement of Principles concerning atherosclerotic peripheral vascular disease (No 87 of 1995) is relevantly in the following terms:

“1.Being of the view that there is sound medical‑scientific evidence that indicates that atherosclerotic peripheral vascular disease and death from atherosclerotic peripheral vascular disease can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting atherosclerotic peripheral vascular disease or death from atherosclerotic peripheral vascular disease with the circumstances of that service, are:

...

(c)suffering from hypertension before the clinical onset of atherosclerotic peripheral vascular disease; or

...

2.Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(m) must be related to any service rendered by a person.

...”

The Statement of Principles concerning ischaemic heart disease (No 140 of 1996 as amended by No 77 of 1997) is relevantly in the following terms:

2.(a)       This Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.

(b)For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen.  Ischaemic heart disease is considered to be present when there is evidence of at least one of the following:

(i)myocardial infarction (old or new); or

(ii)angina; or

(iii)arrhythmia with ECG evidence of myocardial ischaemia; or

(iv)myocardial ischaemia (for example ischaemic cardiomyopathy); or

(v)coronary occlusion,

attracting ICD code 410, 411, 412, 413, 414.0, 414.10 or 414.8.

...

3.The Repatriation Medical Authority is of the view that there is sound medical‑scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

...

4.Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.

...

5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:

(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or

...”

The Statement of Principles concerning hypertension (No 83 of 1995) is relevantly in the following terms:

“1.Being of the view that there is sound medical‑scientific evidence that indicates that hypertension and death from hypertension can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of that service, are:

(a)...

...

(x)...

2.Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(x) must be related to any service rendered by a person.

...”

None of the factors set out in paragraph 1(a) to 1(x) referred or related to stress, anxiety or psychiatric disturbance.

The statutory framework

In 1994 significant amendments were made to the Act which introduced the concept of Statements of Principles into the determination of the existence of a “reasonable hypothesis” for the purposes of s 120(3) of the Act. In Deledio (supra) at first instance Heerey J explained the general history of the legislation and the mischief sought to be remedied by the 1994 amendments.  His decision was upheld on appeal, Repatriation Commission v Deledio (Beaumont, Hill and O’Connor JJ, unreported, 22 April 1998).  The Full Court agreed with his Honour’s explanation, in particular in relation to the need to establish a reasonable hypothesis and the role of Statements of Principles in relation to the reasonable hypothesis.  It is not necessary to repeat or re‑state Heerey J’s explanation and I would, with respect, adopt it.

However it is useful to refer to passages which are particularly relevant to the issues presently before the Court, because although the “reasonable hypothesis” requirement still applies it has a statutory qualification to it without which a reasonable hypothesis cannot be established no matter what medical evidence is led by a veteran.  At 270, Heerey J said:

“The reasonable hypothesis requirement applies:  s 120(3).  If there is an SoP it must ‘uphold the hypothesis’:  s 120A(3).  The RMA must set out factors which must exist, and which of them must be related to service, ‘before it can be said that a reasonable hypothesis has been raised’:  s 196B(2).”

Thus Statements of Principles have a most important and critical role to play in determining whether the applicant should be of the opinion that the material before it does not raise a reasonable hypothesis connecting the relevant injury, disease or death with the relevant service of the veteran.

At 273 Heerey J said:

“As has been mentioned, and notwithstanding the trenchant criticism of the Baume committee, the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and 120(3) as expounded by the High Court in Bushell and Byrnes.
In carrying out its functions under s 196B(2) and 196B(3) the RMA is dealing with scientific fact, that is to say a rule or proposition of universal application which explains or predicts natural phenomena. This is to be distinguished from fact in the legal sense, a specific event or circumstance existing at a given point in space and time. Obviously enough, in determining an SoP the RMA is not concerned with the individual circumstances of a particular veteran. The SoP operates in the discourse of hypothesis - a ‘tentative answer to a problem under study’: Hempel, Philosophy of Natural Science, 1966, p 17.”

Heerey J at 275 explained the relationship between ss 120(1), 120(3) and 196B(2) in the following passage with which the Full Court concurred:

“Therefore when s 196B(2) says a factor ‘must ... exist’ and ‘must be related to service’, it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied.  Do the facts raised by the claimant give rise to a reasonable hypothesis?  Proof of facts is not in issue at this point.  The hypothesis  will not be reasonable if it is:

(i)        contrary to proved or known scientific facts,

(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or

(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant.  If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.”

The proper approach to be taken by a Tribunal and the Court when considering a claim lodged under the Act after 1 June 1994 was the subject of consideration by the Full Court in Repatriation Commission v Deledio (supra).  The Full Court restated the course which the Tribunal is to take in relation to a claim lodged after 1 June 1994 in the following terms:

1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war‑caused, or in the case of a claim for incapacity that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”

The hypothesis

It is fundamental to any enquiry under ss 120 and 120A of the Act to identify what is the relevant hypothesis. In this case the hypothesis is that the respondent is suffering from ischaemic heart disease and atherosclerotic peripheral vascular disease, that before the clinical onset of these diseases he was suffering from hypertension and that his hypertension is related to or connected with operational service rendered by him. It is part of this hypothesis that the respondent’s hypertension is related to operational service rendered by him because it was brought on or caused by stress, anxiety or psychiatric disturbances suffered by him as a result of his war experiences.

Submissions of the parties

The applicant submitted that the Tribunal did not consider the first step identified by the Full Court in Deledio (supra), whether the material before it pointed to a hypothesis connecting the two diseases with the respondent’s operational service, but rather only considered that such a hypothesis was proposed.  However as the applicant rightly points out that approach does not vitiate the decision as it is apparent from the Tribunal’s reasons that if it had asked the correct question it would have found (as is the fact) that the material pointed to the relevant hypothesis.

The applicant’s principal submission was that the Tribunal failed to consider whether the particular hypothesis raised by the material and said to connect the two later diseases with the respondent’s operational service was upheld not only by the Statements of Principles concerning the two diseases but also by the Statement of Principles concerning hypertension.  It was said that as the hypothesis said to connect the two diseases relied on the presence of hypertension before the clinical onset of the two diseases and proposed that hypertension was related to operational service because of stress or psychiatric disturbance it was necessary that the Statement of Principles concerning hypertension uphold the hypothesis.  It was said that the Statement of Principles concerning hypertension failed to uphold the hypothesis as it did not set out stress or psychiatric disturbance as one of the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the circumstances of operational service.

Although the Statements of Principles concerning ischaemic heart disease and atherosclerotic peripheral vascular disease specify the presence of hypertension before the clinical onset of ischaemic heart disease and atherosclerotic peripheral vascular disease as one of the factors that “must be related to any service rendered by a person”, the applicant submitted that the Tribunal had failed to take into account the fact that there was no reference in the factors in the Statement of Principles concerning hypertension to anxiety or stress. It was then submitted that a hypothesis of connection between the disease and a veteran’s service that relies on a connection between a second disease and that service cannot be regarded as upheld by the relevant Statement of Principles within subs 120A(3) of the Act where the Statement of Principles concerning the second disease does not recognise the hypothesised connection between the second disease and the veteran’s service.

The applicant’s final submission was that the Tribunal had erred by casting on the applicant the onus of disproving beyond reasonable doubt that hypertension was related to operational service.

The respondent submitted that the legislation was remedial and should be construed beneficially in favour of the respondent.  It was submitted that although a relevant Statement of Principles must identify factors that must as a minimum exist before it can be said a reasonable hypothesis exists connecting a disease with the circumstances of a veteran’s service, there is no requirement in the legislation that the set of circumstances which makes up a factor must comply with a Statement of Principles.  Thus it was said that where a factor is identified in a Statement of Principles, which mentions a condition which is the subject‑matter of another Statement of Principles, it is not necessary that there be a hypothesis about that factor. Rather the factor constitutes a set of circumstances which must be raised by the material before the decision‑maker; that is to say it must be “raised facts” as contemplated by the Bushell and Byrnes methodology:  Byrnes v Repatriation Commission (supra) at 571.

The issues on the appeal

The first step in the four step course to be traversed as identified by the Full Court in Deledio (supra) is satisfied, as the Tribunal acknowledged and accepted the evidence of Professor Aubrey Pitt a cardiologist.  He said that it is accepted that hypertension is an aetiological factor in the development of ischaemic heart disease and atherosclerotic peripheral vascular disease.  He noted that the respondent suffers from significant anxiety and stress which he relates to his war experiences.  This relationship is confirmed by a report from a psychiatrist.  Professor Pitt noted that although the Statement of Principles in relation to hypertension makes no reference to stress or anxiety as aetiological factors for the development of hypertension there is a significant body of opinion which relate such psychiatric factors to the development of hypertension.  Professor Pitt then set out that significant body of opinion.  Professor Pitt’s conclusion was:

“In my opinion both the history in this case and published literature support that a reasonable hypothesis exists that experiences during his war service, which resulted in psychiatric disturbances confirmed by a consultant psychiatrist, were material causes in his development of hypertension, which in turn lead to coronary artery disease and peripheral vascular disease.”

Accordingly the material before the Tribunal pointed to a hypothesis connecting the respondent’s ischaemic heart disease and atherosclerotic peripheral vascular disease with the circumstances of his operational service.

For the purposes of s 120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles. In the instant case the relevant links or factors are:
(a)       ischaemic heart disease and atherosclerotic peripheral vascular disease
(b)       hypertension
(c)       stress, anxiety or a psychiatric condition
(d)       operational service.

When the hypothesis is identified this way it is then necessary, consistently with the course identified by the Full Court in Deledio (supra), to ask and answer the question in accordance with s 120A(3)(a) of the Act - is there in force a Statement of Principles that upholds the hypothesis, that is to say the hypothesis connecting each of the diseases contracted by the respondent with the circumstances of his operational service? It is therefore necessary to identify whether there is in force a Statement of Principles which upholds the whole, and not just part, of this hypothesis. This is achieved as between ischaemic heart disease and atherosclerotic peripheral vascular disease and hypertension by the Statements of Principles concerning ischaemic heart disease and atherosclerotic peripheral vascular disease but it is not achieved by reference to the Statement of Principles concerning hypertension. Putting the matter another way, in order to uphold the hypothesis it is necessary to identify a causal link or connection between ischaemic heart disease and atherosclerotic peripheral vascular disease, hypertension and operational service. The lacuna occurs at the point between hypertension and operational service because there is no Statement of Principles which upholds the hypothesis that there is a factor which exists which indicates that a reasonable hypothesis has been raised connecting hypertension with the circumstances of operational service.

Mr Croyle who appeared for the respondent submitted that approaching the matter this way was to confuse hypotheses with the factors which had to be identified for the purposes of the Statements of Principles. He submitted that a factor is a set of circumstances, not a hypothesis but I do not think this is correct. This submission fails to give sufficient recognition to the requirement in s 120A(3) that there has to be in force a Statement of Principles determined, in this case under s 196B(2), that upholds the hypothesis that is to say the whole of the hypothesis. It is no impediment to this analysis that more than one Statement of Principles is required to uphold the whole of the hypothesis. Although s 120A(3)(a) refers to “a Statement of Principles” s 23 of the ActsInterpretation Act 1901 (Cth) enables “a Statement of Principles” to be read as including the plural.

This submission by the respondent also fails to give sufficient recognition to the requirement in s 196B(2) that the relevant Statement of Principle is to set out factors which must be related to a veteran’s service before it can be said that a reasonable hypothesis has been raised connecting the diseases with the circumstances of the veteran’s service. It is because of this provision that it is not correct to say that a factor is not a hypothesis. Put more correctly, a factor or a number of factors are the circumstances upon which the hypothesis is erected. Without the factors there can be no hypothesis. This is made clear by s 196B(14) which provides:

“A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a)it resulted from an occurrence that happened while the person was rendering that service; or

...”

A hypothesis can only exist for the purpose of connecting an injury suffered or disease contracted by a veteran with the circumstances of the veteran’s service if there is a factor, or there are factors, which underpin the hypothesis.

In order for a hypothesis to be reasonable, s 120A(3) requires a Statement of Principles to uphold the hypothesis and the Statement of Principles is determined under subs 196B(2) or (11). In this case the Court is concerned with subs 196B(2) which requires a Statement of Principles to set out:

(a)the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting a disease with the circumstances of a veteran’s service

(b)which of those factors must be related to service rendered by the veteran.

When analysed this way it can be seen that the connection of any factors between disease and service rendered must be upheld by one or more Statements of Principles.  To say that the hypothesis must be upheld by a Statement of Principles is to say no more than that the relevant factors along the connecting chain, that is to say the links, between the disease the subject of the application and the veteran’s service must be supported by a Statement of Principles.

If the respondent’s submission was correct he would be left in the present situation with the existence of a factor - hypertension - and the requirement that it be related to his operational service but with a link in the chain of his hypothesis, namely that his hypertension was war‑caused, not supported or rather, upheld by any Statement of Principle.  If the question is put - how are the diseases war‑caused, the answer must be because they are caused by hypertension which may be brought on by stress or psychiatric disturbances.  It is this final link in the chain which is not upheld by any Statement of Principle.

The respondent says that this approach elides two distinct matters, namely:

(a)       the template contained in a Statement of Principles; and

(b)the set of circumstances contained in a “factor” identified in a Statement of Principles which is related to the respondent’s operational service.

But no elision exists once it is recognised that it is the whole of a template which must be found within one or more Statements of Principles.

It is in this respect that the Tribunal failed properly to apply s 120A(3). The Tribunal did not have the benefit of the decision of the Full Court in Deledio (supra) and accordingly did not adopt or follow the four stage course the Full Court identified, that is to say it did not first consider whether the material before it pointed to a hypothesis connecting ischaemic heart disease and atherosclerotic peripheral vascular disease with the respondent’s operational service.  As the applicant acknowledged, this error does not vitiate the decision because the Tribunal’s reasons make it clear that a question so formed would have been answered in the affirmative.

The fundamental and vitiating error into which the Tribunal fell was that it accepted that the hypothesis involved the step that the respondent’s hypertension was related to his operational service and led in turn to the two diseases and accepted that the hypothesis was upheld by the relevant Statements of Principles without determining whether the relevant Statements of Principles upheld the proposition that hypertension was related to operational service.  The Tribunal failed to ask, and answer, the question whether the whole of the hypothesis was upheld by relevant Statements of Principles.

It was not to the point, and the Tribunal did not find, that the 21 November 1985 determination had concluded that the respondent’s hypertension was war‑caused.  Whether or not a hypothesis is upheld by a Statement of Principles is not determined by the individual circumstances of a particular veteran but rather by what Heerey J identified in Deledio ((supra) at 273) as a scientific fact “that is to say a rule or proposition of universal application which explains or predicts natural phenomena”.

The Tribunal misunderstood the significance and relevance of the Statements of Principles when it said:

“The fact that a medical theory about a disease has not been specified in a SoP does not disprove the theory beyond reasonable doubt.”

This proposition fails to give effect to the prescription in s 120A(3) that a hypothesis is reasonable only if there is in force a Statement of Principles which upholds it. If no such Statement of Principles exists then the material before the Commission and the Tribunal does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the veteran’s service. In such an event the Commission and the Tribunal are to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury, disease or death was war‑caused. The fact that the Statement of Principles relating to hypertension excluded stress, anxiety or psychiatric disturbance as a possible cause of hypertension meant that the theory or hypothesis which included hypertension as a link in the chain connecting the two diseases with the respondent’s operational service was ipso facto effectively disproved beyond reasonable doubt. If a medical theory or hypothesis not upheld or supported by a Statement of Principles cannot raise a reasonable hypothesis of connection, it must follow that the connection is disproved beyond reasonable doubt. Section 120(3) so provides.

I was referred to the insertion of sub‑para (f) into s 8(1) of the Act by the Veteran’s Affairs Legislation Amendment Act (No 1) 1996 (Cth) which provides that for the purposes of the Act the death of a veteran shall be taken to be war‑caused if:

“the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war‑caused disease, as the case may be.”

I do not consider that this gives much assistance in construing s 120(A)(3) and its relationship with s 120.

Onus of proof

The applicant submitted that the Tribunal erred in casting on it the onus of proving, beyond reasonable doubt, that the respondent’s hypertension was related to his operational service. There is no doubt that the concept of “onus of proof” is not relevant to any enquiry under s 120. Section 120(6) of the Act makes it clear that no onus is imposed on a claimant or the Commonwealth of proving “any matter that is, or might be, relevant to the determination of the claim or application”. If this proposition needs any judicial explanation it can be found in the Full Court’s decision in Deledio (supra) at 18:

“... this is an administrative process which is ‘inquisitorial’ in character and a process to which the concepts of discharging legal onuses or burdens of proof and other evidentiary concepts will not generally apply.”

In an application under s 120 therefore the Tribunal does not ask whether one party or another party has proved a particular fact but rather asks whether it, the Tribunal, is satisfied beyond reasonable doubt of the relevant matters (s 120(1) and (2)) or whether it can decide a matter to its reasonable satisfaction (s 120(4)).

I do not consider that on a fair reading of the Tribunal’s reasons it imposed an onus of proof upon the applicant.  The only significant references in the Tribunal’s reasons to an onus of proof is found in the following passages:

“27.     Thus having raised two reasonable hypotheses, Mr McKenna will succeed in respect of both diseases unless one of the facts necessary to support either reasonable hypothesis is disproved beyond reasonable doubt, or the truth of a fact inconsistent with a hypothesis is proved beyond reasonable doubt.  Heerey J has clearly stated that there is no onus of proof on Mr McKenna and that even if one of the relevant facts happens to be a component of a SoP, the Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.
...

37.      However, applying the relevant SoPs as explained by Heerey J in Deledio, the respondent’s argument based on Langley is not relevant.  The issue is not whether the Tribunal can, or should, look behind the determination accepting hypertension as a war‑caused disease, but rather whether the Commission has satisfied the Tribunal beyond reasonable doubt that the hypertension was not related to service.  It is not necessary for the Tribunal to be positively satisfied, in a case to which the reasonable hypothesis standard of proof applies, that the hypertension was related to service.  The onus was on the Commission to disprove that fact beyond reasonable doubt.  It has not done so.”

When one analyses the rest of the Tribunal’s reasons it does not appear that the Tribunal resolved the issues before it by casting an onus on the applicant.  Rather the Tribunal determined whether there was evidence before it which satisfied it of relevant matters beyond reasonable doubt.  This is seen for example in the following passage:

“Thus I have evidence from Professor Pitt that there is a body of medical thought supporting the theory that Mr McKenna’s hypertension may be related to his stress during service, and that he regards that as possible on the history he obtained from Mr McKenna.  There is no evidence before me that disproves the fact that Mr McKenna’s hypertension is related to his service, nor is any fact inconsistent with that hypothesis proved beyond reasonable doubt.  Thus applying the reasoning laid down by Heerey J, the decision under review, which found that Mr McKenna’s ischaemic heart disease and atherosclerotic peripheral vascular disease were war‑caused, must be affirmed.”

Taken in isolation the Tribunal’s observation in paragraph 37 that “The onus was on the Commission to disprove [that the hypertension was related to service] beyond reasonable doubt” appears to transgress s 120(6) by imposing an onus on the Commission. However that observation was made in the context of considering the significance and relevance of the earlier determination on 21 November 1985. The Tribunal had earlier concluded that there was no evidence that disproved the fact that the respondent’s hypertension was related to his service. Nor was there any fact inconsistent with that hypothesis proved beyond reasonable doubt. So expressed, s 120(1) was being properly applied and the issue was not being determined by the Tribunal by reference to an onus of proof being cast upon the applicant.

In Deledio (supra) Heerey J had referred to the onus of proof involved in a s 120 exercise and had used words similar to those used by the Tribunal in the passage to which I have referred. The Full Court was satisfied that his Honour had not reached his conclusion by reference to the Commission bearing an onus of proof and the Court’s observations in this respect (at 19) are apposite to the Tribunal’s reasons in the present case:

“We do not consider that a full reading of his Honour’s reasons, although using terminology more appropriate to the legal process, show him to be doing anything other than analysing the correct approach to the decision‑maker’s task under s 120(1).  References to parties and burdens placed on them in this context amount to no more than accepting the practical situation which occurs in proceedings before the Tribunal where parties present, often in a legal adversarial way, material relevant to the decision‑maker’s task under s 120(1).  They also frequently take pro and contra positions on all the relevant issues.”

The Tribunal did not, in my view, fail to pay heed to s 120(6) and I am satisfied that it did not reach its conclusion by way of casting an onus of proof on the applicant.

Conclusion

The result is that the appeal must be allowed, the decision of the Tribunal and the Veteran’s Review Board set aside and the decision of the applicant on 23 March 1995 affirmed.  The applicant has informed the Court that if it succeeds in the appeal it does not seek any order for costs against the respondent.

I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg

Associate:

Dated:             3 July 1998

Counsel for the Applicant:	Mr P J Hanks
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr M J Croyle
Solicitor for the Respondent:	Williams, Winter & Higgs
Date of Hearing:	24 June 1998
Date of Judgment:	3 July 1998