Repatriation Commission v Owens

[1996] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S147 of 1995

B e t w e e n -

REPATRIATION COMMISSION

Applicant

and

ALBERT JAMES OWENS

Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 AUGUST 1996, AT 10.13 AM

Copyright in the High Court of Australia

MR D.E.J. RYAN:   If your Honours please, I appear on behalf of the applicant.  (instructed by the Australian Government Solicitor)

MR M.D.A. MAURICE, QC:  If it please the Court, I appear with my learned friend, MR M.B. SMITH, on behalf of the respondent.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

BRENNAN CJ:   Yes, Mr Ryan.

MR RYAN: If your Honours please. Your Honours, the Repatriation Commission seeks leave to appeal from the decision of the Full Court, and to ask this Court to again consider the provisions of section 120 of the Veterans’ Entitlements Act 1986.

GUMMOW J:   That has now gone, has it not?

MR RYAN:   It has not gone in the sense that it is still in the statute and it still governs what on my instructions are at least 600 cases at the Veterans’ Review Board and Administrative Appeals Tribunal level, so that there are many hundreds of veterans whose claims for entitlement will be governed by the provisions of section 123 prior to the recent amendments which came into effect on 1 June 1994.

GUMMOW J:   Yes.

MR RYAN:   Your Honour, I am also told there are cases at the primary level, as it is termed in the system, that is before the Repatriation Commission itself - difficult cases involving questions of scientific and medical opinion which will also be governed by the reaches of section 123.

GUMMOW J:   Why is that?

MR RYAN:   Because, quite often, I am told, there are delays in finalising applications which do involve difficult questions of science or medicine because attempts are made to obtain further reports from other experts and the like.  So, there are some at the primary level but I cannot give your Honours a figure.

BRENNAN CJ:   Mr Ryan, this Court has considered this problem on a few occasions now.

MR RYAN:   Yes, your Honour.

BRENNAN CJ:   Even if one acknowledges the proposition that in this case the majority of the Full Court got it wrong, would that justify a grant of special leave?

MR RYAN:   We say yes, your Honours, because of the central importance of the correct interpretation of this section to the outstanding matters.  Obviously, it is an important ‑ ‑ ‑

BRENNAN CJ:   What do you say is the correct interpretation?

MR RYAN:   We say that the correct interpretation is that section 123 does not permit a veteran to entitlement to a pension in circumstances such as those considered by the Full Court; namely, those where an acceptably eminent person in the field of medicine comes forward and says there might be a connection between the morbid condition of the veteran and his particular circumstances of service.  It is an area for further research; it is a possibility; it has some biological plausibility to it.

BRENNAN CJ:   That sounds very much like a proposition of fact rather than a proposition of law.  Is that the proposition that you seek to have declared by this Court?

MR RYAN:   Your Honours, what we seek to have declared is that the Full Court erred, in effect, substituting its decision for the primary decision maker - in this case, the Tribunal.

BRENNAN CJ:   Quite so.  Where does that leave you?

MR RYAN:   But, on an error of law, the error of law being whether or not the section can permit a completely ‑ ‑ ‑

BRENNAN CJ:   What do you say the interpretation should be?  What is the proposition of law for which you are contending?

MR RYAN:   Your Honours, we are forced, really, to contend for a negative proposition; namely, that the approach outlined by the Full Court is not consistent with what this Court has said, in particular, in Bushell’s Case and also in Byrnes.

BRENNAN CJ:   That means no more than that one court got it wrong.

GAUDRON J:   Or do you, perhaps, say, that the material in this case is simply not capable of giving rise to a hypothesis within the meaning of the section?

MR RYAN:   We do say that, your Honour.  But, your Honour, to say that the court got it wrong is to say that the court made an error in the interpretation of the statute.  It is in an area, we would submit, which is an extension - and we say an impermissible extension - of the decision of this Court in Bushell, and it will, if it stands, obviously, regulate the conduct of the decision makers in the system in relation to at least these 600 cases that I am instructed are under the old subsection.

GAUDRON J:   You have to say from a point of law though, do you not, that “hypothesis” in the section means one that points to a particular result rather than leaves it open.

MR RYAN:   That is it, your Honour.  That is it in a nutshell.  We say that the error, if we were permitted to go to that issue now, is in effect that East’s Case, approved by this Court in Bushell, and Bushell’s Case, make it clear that for the section to operate, for the subsection to operate, and for the relevant hypothesis - the reason for the hypothesis to be generated - the existence of it must not merely be left open but must be pointed to.  Your Honours, one of the points that we wish to urge on the Court in this case is that, in effect, we have come full circle back to the position in O’Brien’s Case.

O’Brien’s Case, as your Honours will know, ultimately upheld the Federal Court decision which said that if there was a real possibility of a connection which had not been negatived to the requisite standard, then the veteran was entitled to a pension.  Your Honours, that decision of this Court in O’Brien led within three months to a special sitting of the Parliament to introduce a regime to overcome that decision.  When the 1986 Act was passed the provisions introduced to overcome O’Brien found their way into the new Act.  Your Honours, it is interesting in this case that in the judgment of the majority, Justice Einfeld and Justice Drummond, one has specific reference to Justice Einfeld’s decision to a real possibility, the very phraseology held in O’Brien’s Case; in Justice Drummond’s judgment, to a possibility pointed to by the material.

We simply say that the Full Court has really gone off the rails, because if this decision stands we will have a repatriation system which has returned to the position where it was when O’Brien’s Case was decided.  Your Honours, we do say that it is a question of great significance, and it is not enough to say the Federal Court may have got it wrong, where the administration of a sizeable part of the repatriation system depends upon that decision.  Your Honours, we have set out what we say are the special leave questions in the submissions, but they can be encapsulated into the propositions that we say it is not enough, and the court erred in finding that the possibility of a connection - something left open but not pointing to a matter for further research - can constitute an opinion to support a reasonable hypothesis under the subsection.

Secondly, your Honours, an allied but distinct question is the use by the court and its treatment of the Tribunal in relation to the evidence of Dr Levi, who was called for the Repatriation Commission as to his views about this particular type of carcinoma and the particular circumstances of Mr Owens in relation to a villous adenoma said to be of significance in the generation of his cancer.  We say it is a similarly important question for the administration of the system to know whether the position post Bushell and Byrnes is that at the state of determining whether a reasonable hypothesis is generated by the material before the decision maker or not, the decision maker is absolutely precluded in practical terms from considering opposing material, opposing to the material relied upon by the veteran.

The Full Court has taken the view that the decision of this Court in Bushell and Byrnes means exactly that, that it is impermissible at the stage of applying section 120(3) to consider the opposing material. We say that that is contrary to the decision of this Court in Bushell, and it is also contrary to the very terms of the subsection itself which require the decision maker to consider the totality of the material. Your Honours, we say it is a question of very great significance to the administration of the system where the decision makers can take into account opposing material at this stage or must leave such consideration, as the majority in the Full Court found, to the stage where section 120(1) is being considered with its standard of beyond reasonable doubt.

The practical and significant effect, your Honours, is of course that it is very difficult in medical terms - and this was indeed the evidence in this case - to ever say that something is scientifically impossible. So that in a practical sense, if the opposing material cannot be looked to at the section 120(3) stage, it has a very significant effect upon the repatriation system. Now, your Honours, the point is really a relatively short one. We say that the decision maker is so entitled to look at the opposing material and Bushell, when properly understood, recognises and supports that contention.  So, again, we have a decision where we say the Full Court is erroneous in that behalf.

Your Honours, part of that second question is the manner in which Justice Drummond approached the question of assuming missing facts.  It is a subsidiary part of the second issue.  Justice Drummond took the view that any fact necessary to support the existence of the hypothesis put forward by

the veteran could be assumed, and his Honour took that view based upon an observation of this Court in Byrnes that a hypothesis would not necessarily fail because it had to assume a fact, and the court put the word “fact” in quotes.

Your Honours, we would submit that it is an impermissible extension of the decision‑making process and an error in law to permit the assumption of all facts necessary to support a hypothesis.  In my submission, it again is coming around to the position in O’Brien, where something that is rational but speculative, left open but not pointed to and, on the view of Justice Drummond, involves assumed facts, if necessary all assumed facts, gives the veteran an entitlement.

Your Honours, those are the submissions of the Repatriation Commission in short.  There are other subsidiary issues that are raised but, in essence, there are those two questions which we say do warrant the grant of special leave.

BRENNAN CJ:   Yes, thank you, Mr Ryan.  Mr Maurice.

MR MAURICE:   If your Honours please.  Your Honours, the applicant’s argument ignores the fact that the majority in the Federal Court interpreted Professor Kune’s evidence as doing more than simply leaving open the hypothesis, but it went further, it pointed to it.  So this case ‑ ‑ ‑

GAUDRON J:   I am not too sure that that is correct, at least according to Justice Drummond.  The hypothesis was encapsulated by reference to the word “might” and the section allowed a hypothesis that there might be a connection.

MR MAURICE:   Indeed.  That is entirely consistent ‑ ‑ ‑

GAUDRON J:   Yes, as distinct from the hypothesis that there is a connection, and there is a difference in disproving - I mean, to the extent that questions of disproof of negative come in, there is a very real difference between disproving a hypothesis that there is a connection and one that there might be a connection.

MR MAURICE:   The way this Court has approached the matter in both Bushell and Byrnes - and this is consistently with a notion that all you are looking for is a reasonable hypothesis - is that if there might be a connection, you have a reasonable hypothesis.  If something points to the possibility of there being a connection as opposed to merely leaving it open, then you have a reasonable hypothesis.  The applicant’s proposition would convert the requirement for a reasonable hypothesis to a ‑ ‑ ‑

GAUDRON J:   A hypothesis that there is a connection as distinct from a hypothesis that there may be a connection.

MR MAURICE:   It would convert it, your Honour, to a requirement that there be a prima facie case in the sense that a reasonable tribunal of fact, properly instructed, could find that this was probably so.

BRENNAN CJ:   No, not find - sufficient to raise the issue.

MR MAURICE:   Perhaps the best way to deal with this, your Honour, is to take the Court directly to ‑ ‑ ‑

GAUDRON J:   Is not the better way to look at the terms of the section?  One of the worrying features of this case is that the courts below, the Tribunal and the Federal Court, seemed to have been much more concerned with the words of this Court than with the words of the section.

MR MAURICE:   Your Honour, that, we would submit, is hardly a fair interpretation of Justice Drummond’s judgment in which he reviews the decisions of this Court about what is a reasonable hypothesis and concludes that there is nothing in it that does not fit the ordinary English meaning of the phrase.  If what is being put here - and as we understand it is in the first part of the first special leave question - that you must have a doctor or medical expert who goes into the witness box and says, “In my opinion, there probably is a connection”, then that is profoundly against everything that was said in Bushell and everything that was said in Byrnes ‑ ‑ ‑

GAUDRON J:   Not probably.  The hypothesis is that A causes B, or A is causally connected with B.

MR MAURICE:   That evidence was put by Professor Kune.

GAUDRON J:   As distinct from the hypothesis A may be causally connected with B, and the Tribunal certainly took the approach that the evidence of the doctor was of the latter, and so did Justice Drummond.

MR MAURICE:   Yes, that is so, your Honour.  That is all that is required for a hypothesis.

GAUDRON J:   That is the question.  Does ‑ ‑ ‑

MR MAURICE:   A possibility of connection and a possibility pointed to by the evidence, and the majority said that it was pointed to by the evidence, because they looked closely at Professor Kune’s evidence and said it did point to it.  It did not just merely leave it open.  I will take your Honour to what Professor Kune said in a moment, but may I remind the Court that in Byrnes v the Repatriation Commission 177 CLR ‑ ‑ ‑

BRENNAN CJ:   Do we have a copy of that?

MR MAURICE:   You should have, your Honour.  It is in our learned friend’s list.

BRENNAN CJ:   I thought copies would be available when they are cited in  special leave applications.

MR MAURICE:   Your Honour, we assumed, because it was in our learned friend’s list, that they would be available.

BRENNAN CJ:   Yes, it is.  What page?

MR MAURICE:    Page 571 to start with, your Honour, at the sixth line down, where the Court said:

The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.

Then over the page, page 572, there is discussion in the paragraph commencing in the middle of the page, about the conflict between the two medical experts in that case.  The Repatriation Commission’s medical expert was Dr Whitty, and then in the third sentence in that paragraph:

Although Dr Whitty thought that the hypothesis was unlikely, he nevertheless conceded that there was one chance in twenty-one that the hypothesis was valid. It was not open to the Tribunal, therefore, to say that the hypothesis relied on by the appellant was not reasonable because there was only a 20 to 1 chance of it being valid. A hypothesis within that degree of probability cannot as a matter of law be regarded as unreasonable for the purposes of s 120.

BRENNAN CJ:   Say if Professor Kune had been asked, “What are the possibilities in statistical terms of this being related?”, what would he have said?

MR MAURICE:    I have no idea, your Honour, but what he did say ‑ ‑ ‑

BRENNAN CJ:   That is exactly what he would have said, is it not, “I have no idea”.

MR MAURICE:    He may not have, your Honour.  He may have been prepared to put a percentage on it.

BRENNAN CJ:   But he could not have, because he had no knowledge as to whether there was any connection scientifically.

MR MAURICE:   May I say this, your Honour.  He said that, “We have clear evidence for an association between hyperplasia and cancer in other parts of the body.  We understand that, and we know that the veteran’s condition in this case could have caused hyperplasia and, therefore, although there’s no data or scientific study to show that hyperplasia will cause cancer of the colon, we can reasonably extrapolate from what we know about cancer in other parts of the body and its association with hyperplasia that, in this case, hyperplasia might have been a cause of this man’s cancer”.  That is his evidence.

BRENNAN CJ:   But he did not deal at all with the fact that there was a villous carcinoma to which the other doctor says, “Look, that’s the obvious cause, it is the cause.  You don’t have to go looking for these hypotheses”.

MR MAURICE:   Well, that is not, with great respect, correct, your Honour.  The fact is that he - and as the majority accepted in the Full Court as, indeed, they had no choice - knew about the villous adenoma and expressed the opinions he did in the light of that knowledge.  So the only fair inference is that he did not think that it made a difference to his hypothesis.  In any event, your Honour, that depends on the evidence of Dr Levi.  His opinion was apparently that, “We know the cause, villous adenoma.  Therefore, we don’t need to look to any other hypothesis”.  That is just merely another opinion.

BRENNAN CJ:   But the Tribunal found that.  They found that the hypothesis put forward by Professor Kune was unreasonable.

MR MAURICE:   They certainly found that, yes.

BRENNAN CJ:   And they found it as a matter of fact.

MR MAURICE:   They did, your Honour.

BRENNAN CJ:   Now, to challenge that view, you have to demonstrate that there was some error of law.

MR MAURICE:   I appreciate that ‑ ‑ ‑

BRENNAN CJ:   What was it?

MR MAURICE:   The error of law, according to the majority ‑ ‑ ‑

BRENNAN CJ:   According to your submission, what was the error of law?

MR MAURICE:   That it simply was not open to the Tribunal to reach the view that Professor Kune’s evidence did not give rise to a reasonable hypothesis - precisely the error identified in Byrnes Case.

BRENNAN CJ:   Why not?  In the light of the evidence that was given about the villous adenoma, why not?

MR MAURICE:   If you keep moving back to the villous adenoma, you are dealing with a conflict between two medical experts and this Court said ‑ ‑ ‑

BRENNAN CJ:   What is the conflict?

MR MAURICE:   The conflict is one doctor saying, “Well, in this case, hyperplasia can’t be a cause because, in my view, the villous adenoma has been identified and that must be the cause”, and the other doctor saying, “From a position of knowledge about the pathological findings concerning villous adenoma, I think that there is a real possibility that hyperplasia may have been a contributing factor”.

BRENNAN CJ:   Where does that appear?

MR MAURICE:   That he said that he knew ‑ ‑ ‑

BRENNAN CJ:   When he said, “Knowing of the villous adenoma” ‑ ‑ ‑

MR MAURICE:   It does not appear because it was not put to him, your Honour, but that he knew about it is something that the majority concluded on the evidence, on the material, when he expressed his opinion, and still put forward the view, “This is a real possibility”, must be inferred.

BRENNAN CJ:   That is because the majority thought that you could pick and choose amongst the material that was before the Tribunal in order to spell out a reasonable hypothesis.

MR MAURICE:   Yes, you can, your Honour ‑ ‑ ‑

BRENNAN CJ:   Despite the words of the section.

MR MAURICE:   No, because the approach which this Court has said must be taken in the section 120(3) phase of the exercise - what you are looking to do is to locate material which supports a hypothesis, not to reconcile conflicts in that material. So the fact that there may be a countervailing opinion is something you would normally put to one side until you come to the section 120(1) stage, unless what is being put is that this is a known scientific fact, and that has been dealt with by the Full Court. Dr Levi’s evidence did not go to establish that this was a known scientific fact. It was not the tenor of his evidence and it could not possibly have been the effect of it and it could not be looked at on that basis. So it was just, as Justice Drummond described it, an ordinary conflict between medical practitioners.

BRENNAN CJ:   What do you say about the amendment to the Act?

MR MAURICE:   We say this, your Honour.  When the old cases, the cases which arise from applications lodged prior to the end of June 1994 - apart from those cases, these questions will have no relevance.  The number of cases that are still to be dealt with at one level or another which have a real issue of complexity are comparatively minor.  The overwhelming majority of cases which are now coming up for determination will not be decided by reference to Owens or the earlier decisions in Bushell and Byrnes.  There are, I am told, your Honour, something like 350 statements of principle which have been promulgated which really now determine whether - except they list criteria ‑ ‑ ‑

GUMMOW J:   Is that under the new system?

MR MAURICE:   That is under the new system, your Honour.  They specify criteria which must be satisfied before the Commission can determine that a reasonable hypothesis has been raised.  They cover just about all of the controversial medical conditions which have arisen under this section and may arise.  So that the number of cases is going to diminish rapidly, and it is diminishing.

The only other thing is that I just wanted to remind your Honour the Chief Justice of what you said in Bushell, if I may, in 175 CLR about what constitutes a reasonable hypothesis.  At page 428, in about the middle of the page, your Honour cites Justice Beaumont in Repatriation Commission v Webb, and in about the middle of that passage - your Honour then goes on to say you agreed with that passage - your Honour said:

“The point sought to be achieved by the introduction into s 120 of the notion of ‘reasonable’ hypothesis is the distinction between a theory that is rationally based, on the one hand, and an opinion or view that is irrational, absurd or ridiculous, on the other.”

That is the approach which was adopted by the majority in the Full Court in this case, your Honour, and likewise, over the page, at the bottom of page 429, your Honour refers to a passage from the judgment of Justice Davies in the court below in Bushell and says it is the correct approach on the following page, and your Honour says:

“A reasonable hypothesis will ordinarily be established if a responsible medical practitioner, speaking within the ambit of his expertise, and after considering the particular facts of the veteran’s case, puts forward a theory of a likely, in the sense of a realistically possible, not fanciful, causal connexion between war service and the veteran’s disability.”

We say that is what Professor Kune’s evidence did, and the majority approach to this was that an error of law has to be demonstrated and they said it was because it raised a real possibility of connection, even though it could not be proved scientifically.  I do not think there is anything else I can usefully add.

BRENNAN CJ:   Yes.  Mr Ryan.

MR RYAN:   If your Honours please.  Your Honours, the first point we wish to make in reply is that the Tribunal itself held that the villous adenoma was not taken into account, and no doubt the Court is aware of that, but it was only in the Full Court that two of the justices took the view that, by inference, Professor Kune must have considered it.  If, as the primary decision maker found, he had not taken it into account, then there is no conflict between the two witnesses, we would submit, and it is not a case for the application of the observations in Bushell that at the section 120(3) stage it is not a time for resolving conflict.

GUMMOW J:   On one view of it, the administrative review capacity, which is what is involved here, miscarried.

MR RYAN:   In the court?

GUMMOW J:   Yes.

MR RYAN:   Yes, your Honour.  Well, your Honour, one of the grounds in the application book itself, which we tried to distil down to the real issues, if I can put it that way, is that the court substituted itself as the decision maker for the Tribunal.  Now, that is part of our application for special leave and will be part of our appeal, but we certainly do say that, your Honour.  For example, Justice Einfeld simply said that the hypothesis that he was dealing with was not too tenuous and did not give any reasons for that exposition.

GUMMOW J:   But it having miscarried, I wonder if it is general authority for anything.

MR RYAN:   Your Honour, we would say that unless it is corrected, it will be.  Your Honour’s observations, of course, in argument take the matter no further and we have a decision of the Full Court which must be given the respect it is entitled to and will be followed in the system unless and until a different decision is reached.

Your Honour, one final matter in reply is that we would submit, with respect, that it is instructive to look at the way Justice Drummond approached the two hypothesis.  The first hypothesis, the amoebic dysentery hypothesis, was ultimately sought to be supported by Professor Kune in so far as he did seek to support it by two articles and, your Honour, Justice Drummond said those articles did not justify that hypothesis.  So he held against it.  Ironically enough, where there were no articles, where there was no external objective support whatsoever, he held in effect, we would submit, for that reason that there was a hypothesis generated.  If your Honours please.

BRENNAN CJ:   The Court will adjourn briefly in order to consider what course it should take in this matter.

AT 10.44 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.51 AM:

BRENNAN CJ: Section 120(3) of the Veterans’ Entitlements Act 1986 (Cth) specifies the condition on which the Commission is to be satisfied of the negative proposition that there is no sufficient ground for determining that an injury was war-caused or defence-caused. The condition is the formation of an opinion by the Commission on the material before it, that is, the whole of the material before it, that that material does not raise a reasonable hypothesis connecting the injury with the circumstances of the claimant’s war or defence service.

The question whether, for the purposes of section 120(3) of the Veterans’ Entitlements Act 1986, material raises a reasonable hypothesis is a question of fact for it involves no more than a determination whether an hypothesis of connection is reasonable. Here, the Administrative Appeals Tribunal, reviewing the decision of the Commission and exercising the powers conferred by section 120, found that “the circumstances and submissions put before us do not raise a reasonable hypothesis...connecting [the present respondent’s] disease with the circumstances of his war service”.

The only appeal from that decision lay to the Federal Court but that appeal was limited to a question of law.  The purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Administrative Appeals Tribunal.  This distribution of function is critical to the correct operation of the administrative review process.

Mr Justice Lockhart correctly perceived that the issue before the Administrative Appeals Tribunal was a question of fact. The Administrative Appeals Tribunal had not simply chosen between two professional opinions but accepted that the actual cause of the claimant’s injury, an adenocarcinoma, had been identified and thus any hypothesis was excluded. A majority of the Full Court allowed an appeal from Mr Justice Lockhart but their Honours seemed to have misunderstood the nature of the issue arising under section 120(3). It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal.

Although the applicant has shown a prima facie case of error on the part of the majority of the Full Court, the insertion of sections 120A and 120B by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) substantially diminishes the ground for seeking special leave to appeal.

The problem having been elucidated by this Court in earlier cases, it is not appropriate to grant special leave in this case.  For that reason, special leave is refused.

MR MAURICE:   We ask for costs, your Honour.

BRENNAN CJ:   No order for costs.

AT 10.54 AM THE MATTER WAS CONCLUDED