Repatriation Commission v Rector, Theresa Margaret
[1984] FCA 182
•02 JULY 1984
Re: THE REPATRIATION COMMISSION
And: THERESA MARGARET RECTOR
No. WA G30 of 1983
Repatriation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
CATCHWORDS
Repatriation - war widow's pension - death of former member of Armed Forces from adenocarcinoma metastases - aetiology of disease unknown - whether death arose out of or was attributable to war service - application by Tribunal of law consistent with authorities
Repatriation Act 1920 ss. 27, 107C, 107VH, 107VZZH
HEARING
PERTH
#DATE 2:7:1984
ORDER
The appeal be dismissed and the decision of the Repatriation Review Tribunal dated 3 May 1983 be affirmed.
The applicant pay the respondent's costs of the appeal.
JUDGE1
The Repatriation Commission appeals from a decision of the Repatriation Review Tribunal:
"that the decision made by the Repatriation Commission on 8 January 1982 is set aside and for it is substituted the decision that the Commonwealth of Australia is liable, pursuant to Section 107C of the Repatriation Act 1920, to pay to the dependants of the late Stanford Horton RECTOR, the pensions payable in accordance with Division 1 of Part III of that Act, in the case of the death of a member of the Forces; this decision is to operate on and from 6 November 1980".
By reason of s.107VZZH of the Repatriation Act 1920, the Commission may appeal to this Court "on a question of law". The question of law identified in the notice of appeal is:
"whether the Repatriation Review Tribunal may find an entitlement to a pension payable under Division 1 of Part III of the Act in the case of the death of a member of the Forces where no evidence is adduced in support of the hypothesis that death has arisen out of or is attributable to war service and alternatively where no real possibility of such a connection arises from the evidence or has been considered by the Tribunal".
The grounds of appeal assert that the Tribunal erred in setting aside the Commission's termination upon the basis that Mr. Rector had died of a disease the cause of which was unknown, and that in coming to its decision the Tribunal failed to address itself to the issue of whether there was on the evidence any real possibility that Mr. Rector's death resulted from an occurrence during war service.
In the course of his submissions, counsel for the Commission acknowledged that, if the grounds of appeal were established, the appropriate order was to set aside the decision of the Tribunal and remit the matter to that body for further consideration. This concession was made on the basis that it could not be said that the Tribunal, properly directing itself on questions of law, was bound to reject Mrs. Rector's claim for a pension. It was the Commission's case that the Tribunal had proceeded on a misunderstanding of the legal principles involved.
Since the decision of the High Court in Repatriation Commission v. Law (1981) 36 ALR 411, there have been a number of decisions, reported and unreported, in which the implications of that decision have been considered. Attached to these reasons is a schedule in which the decisions are noted; for the purposes of this appeal, it is unnecessary to refer to all of them. Mr. Rector died on 5 November 1980. The medical certificate of cause of death identified broncho pneumonia due to gross debility and malnutrition which in turn was due to adenocarcinoma metastases.
Mr. Rector's eligible service for the purposes of the Repatriation Act was the period from 8 December 1955 to 19 April 1956 when he served during the Korean war. He served in the Australian regular army and also in the British army during World War 11 but for the purposes of this appeal it is only his service during the period just mentioned that is to be taken into account.
Mr. Rector had a medical history going back to 1952 but the first record of any potential significance is that on 25 November 1954 a sebaceous cyst was noted under his chin. It was removed surgically on 28 June 1955. This was of course before the period of his eligible service began. In 1963 a diagnosis was made of nutritional deficiency due to alcoholism, fatty liver with early liver failure and peripheral neuritis. The medical reports thereafter contain frequent references to the need for Mr. Rector to reduce his alcoholic intake and his smoking. He was also seen by a psychiatrist because of his anxiety state. His mental capacity deteriorated.
In 1969 there was a diagnosis of Korsakoff Syndrome, described in the medical reports as "a state of altered and depressed cerebral function in respect of the higher centres, and produced by increased alcoholic intake". Mr. Rector sought a disability pension by reason of this condition but his claim was rejected and, on appeal to the Repatriation Commission, was further disallowed.
For the purposes of this appeal, Mr. Rector's relevant medical history really began in 1970 when Dr. Ten Seldam, Mr. Rector's general practitioner, made this diagnosis:
"He has adeno-carcinoma, primary not found. Secondaries in lymph nodes neck. He has not worked for 2 months and general physical condition deteriorating in the last month".
Mr. Rector claimed a disability pension, asserting "General conditions of service may have contributed to the development of this condition".
A report from Dr. Ten Seldam dated 23 September 1980 recorded a patient history of a lump in the neck, present for six months or more; a biopsy showing undifferentiated adenocarcinoma; primary unknown; other metastases in other glands of the neck, right scapula and several ribs; with a summary of terminal cancer. There were confirmatory reports by Dr. Stubber, a phsycian, and Dr. Way, a surgeon.
The application by Mr. Rector for a disability pension produced a report by Dr. Godkin, a departmental medical officer. Dr. Godkin stated the cause of disability in these terms:
"(a) Disseminated cancer, the origin of which has not been determined.
(b) Likely primary sites are the lung, bladder and skin in order of probability. The first two would be related to smoking and the last might be the consequence of exposure of the skin to sunlight. Whatever the primary site, the veteran has reached an age when cancer commonly occurs, presumably, because the disease has a degenerative basis, at least partly, in many cases.
(c) The only other possible factors are a genetic predisposition and unknown environmental influences".
Asked for his opinion whether the incapacity resulted from an occurrence during the eligible period of service, Dr. Godkin answered:
"NO. The disease has appeared quite recently and there is no evidence to suggest that its roots and/or antecedents arose during the 4 1/2 months of the veteran's eligibility".
Asked whether the incapacity arose out of or was attributable to the eligible period of service, Dr. Godkin answered:
"NO. The veteran was a heavy smoker and it is possible that this habit had a causative influence on this disease. There is no indication in the files that the veteran's cigarette consumption began or was escalated during his period of eligibility, nor that he was exposed unduly to sunlight".
It would seem that before this claim was determined, Mr. Rector died; his widow then made the claim the subject of this appeal. In connection with this claim Dr. Denton, a departmental medical officer, expressed the view that "The condition which caused the death did not arise nor was it manifest on service. It was first diagnosed in June 1980". Dr. Denton was also of the opinion that "there is no evidence to relate the cancer of unknown origin to service". It may be noted that Dr. Denton referred to the removal of the sebaceous cyst many years earlier, commenting that such a cyst is not malignant and is "a difference disease entirely from that of cancer".
In its review, the Tribunal was obliged by para.107VH(2)(a) to set aside the decision of the Commission rejecting Mrs. Rector's claim unless it was "satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim ...". In the light of the High Court's decision in Law, the Tribunal regarded the statutory prescription "as meaning that before a pension could be refused to an otherwise eligible Applicant, the Commission had to satisfy the Tribunal beyond reasonable doubt that all of the relationships between war service and death, provided for in the appropriate Section, had been excluded". There can be no quarrel with the proposition derived by the Tribunal from Law.
The Tribunal went further and said that in Law the High Court held that:
"(i) the onus of disproof placed on the Commission was absolute - no onus resting on the claimant to establish a case initially, and
(ii) the operation of Section 107VH(2)(a) required the Commission to satisfy the Tribunal beyond reasonable doubt that a fact necessary to establish entitlement was absent."
The term "absolute" was not used by the High Court but, in the context in which it appears in the reasons for decision of the Tribunal, I think it was intended to do no more than emphasise that no onus of proof is cast by the Act on a claimant for a pension.
The reference to an onus of disproof on the Commission arises, I think, in this way. Sub-section 47(2) of the Act provides that when a claim is before the Commission or a Board, the Commission or Board shall grant the claim and, where appropriate the Commission shall allow an appeal, "unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal, as the case may be". Where the Commission is so satisfied and rejects the claim and the Tribunal is required to review that decision, para. 107VH(2)(a) comes into play and obliges the Tribunal to set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim. If, at that stage, the Commission seeks to defend its decision, there is an onus of disproof cast on it. Speaking of s.107VH in Law, Aickin J. said at p.424:
"I am satisfied that the operation of that section does not involve a two-stage process and that it requires that, in relation to any fact necessary to establish entitlement, the Review Tribunal must be satisfied beyond reasonable doubt that the fact does not, or did not, exist before it can refuse an application or dismiss an appeal by a claimant".
It follows that there can be no objection to the statement of the Tribunal that it:
"... is not therefore concerned with determining whether there is positive proof supporting the existence of one or other of the requisite relationships in Section 107C, but with proof of their absence, and satisfaction about this beyond reasonable doubt".
Section 107C imposes on the Commonwealth, subject to the Act, a liability to pay a pension to the dependants of a member of the Forces who, inter alia, dies from an occurrence that happened during his war service. I have difficulty with the next statement by the Tribunal which reads:
"Where the Act requires the Commission to determine whether these relationships in fact existed (Section 27), their existence is established and the Commission must so find that the evidence fails to disprove their presence beyond reasonable doubt".
Section 27 charges a Board with the duty of making determinations concerning the relationship between incapacity and war service, questions of dependancy, rates of pension and the like. Sub-section 27(2) empowers the Commission to make any such determination or assessment. What I understand the Tribunal to be saying is that, in the absence of proof to the contrary, the existence of matters upon which the grant of a pension depends is established by the operation of the Act itself. When the Tribunal says that "the Commission must so find that the evidence fails to disprove their presence beyond reasonable doubt", it must be taken to have in mind the situation in which there is no evidence or insufficient evidence to displace the onus prescribed by the Act. While the sentence lacks clarity, I am not persuaded that it led the Tribunal into any error.
The Tribunal continued:
"Given the standard of proof required, the possibility of the existence of a requisite relationship may therefore decide a claim in favour of the claimant, and it is clear that the absence of evidence, one way or the other, may of itself suffice to justify acceptance of such a possibility by the Tribunal under Section 107VH(2)(a)".
In Repatriation Commission v. Bishop (1983) 48 ALR 461 I made some comments about the need for there to be something in the material before the Tribunal pointing to a possibility, real as opposed to fanciful, of a connection between death and war service. I explained this in Repatriation Commission v. Compton (unreported decision delivered 20 February 1984) by saying that nothing in Bishop's case was intended to disturb the onus of proof which, at no stage, lies upon a claimant. Where such a connection is not evident in the material before the Tribunal, it may conclude that it is satisfied beyond reasonable doubt that there was no relationship between the war service and the death. However the decision of the Tribunal in the case now under appeal was delivered before Bishop and Compton. The reference to "possibility" by the Tribunal does not therefore derive from either of those decisions. It may derive from passages in the judgment of the Full Court of the Federal Court in Repatriation Commission v. Law (1980) 31 ALR 140 at pp 146 and 154. Whether or not that is the source, the statement by the Tribunal is consistent with authority. Indeed it is consistent with passages in the judgment of Keely and Fitzgerald JJ. in O'Brien v. Repatriation Commission (unreported decision delivered 11 April 1984) in which their Honours said:
"If there is material which tends to disprove a fact, the question arises whether the non existence of that fact is the only rational conclusion on all the material, including such material, if any, as points to the possibility that the fact does exist. A 'real' possibility of the existence of that fact may be founded on something in the material which points to its existence or may arise from a lack of sufficient cogency in the material to disprove its existence or from some deficiency in the range of that material. ...
If there is no material in respect of a fact, or if the material is neutral in the sense that it leaves the existence of the fact unknown, there is no rational basis for a choice between the conclusion that the fact does exist and the conclusion that it does not. The non-existence of that fact is not the only rational conclusion".
Counsel for the applicant criticised the decision of the Tribunal because of its failure to refer to the medical evidence, in particular that of Dr. Denton. There is force in this criticism but it should not be lightly assumed that the Tribunal did not direct its attention to that evidence. It spoke of the absence of evidence as being of particular significance "where, as in the present case, the condition which led to death, adenocarcinoma metastases, is a disease, the cause of which is unknown, and in this particular case the primary site of the cancer has not been established". It also asked itself whether the Commission had demonstrated beyond reasonable doubt that the cause of Mr. Rector's adenocarcinoma metastases could not have been related to his war service. This was said with reference to a passage in the joint judgment of Northrop and Sheppard JJ. in Lennell v. Repatriation Commission (1982) 4 ALN No. 29 where their Honours commented:
"... notwithstanding that the cause may not be known, it may be possible to demonstrate beyond reasonable doubt that the cause could not have been related to war service".
The Tribunal said that, in its judgment, the Commission had not satisfied this obligation. It added:
"On the evidence before the Tribunal, the causes of the adenocarcinoma remain unknown. The departmental medical officer's opinion of 30 October 1980 makes this clear.
On the evidence before it, the Tribunal is not satisfied beyond reasonable doubt that the adenocarcinoma, which was the underlying pathological condition leading to death, was not related to Mr. Rector's war service in terms of the relationships identified in Section 107C of the Act".
In Compton at p.10 I said:
"Claims before the Commission are not to be determined by the mechanical application of some formula. It is necessary to examine all the evidence available and then to determine whether, on that evidence, the Repatriation Board or other tribunal concerned is satisfied beyond reasonable doubt that the death of the member of the Forces was not attributable to war service. If the tribunal is not so satisfied the claim must be allowed. In making that determination the tribunal should have regard to possibilities, so long as they are not fanciful".
I am not persuaded that the Tribunal failed to take into account all the evidence before it or that it reached its decision without a true appreciation of the task it had to perform. It reached a decision which, the applicant acknowledged, it might have reached, directing itself on the relevant questions of law.
Nor am I persuaded that the Tribunal failed to direct itself on the law; indeed, I am satisfied that it did so in accordance with the authorities then available to it and that nothing in any decisions decided since then has shown its approach to be wrong.
In my view the appeal should be dismissed with costs.
SCHEDULE
Law v. Repatriation Commission (1980) 29 ALR 64 (Toohey J.).
Repatriation Commission v. Law (1980) 31 ALR 140 (Full Federal Court).
Repatriation Commission v. Law (1981) 36 ALR 411 (High Court).
Repatriation Commission v. Byrne (1981) 40 ALR 296 (Full Federal Court).
Lennell v. Repatriation Commission (1982) ALN No. 29.
Rose v. Repatriation Commission (1982) 44 ALR 504 (Fitzgerald J.)
Repatriation Commission v. Bugg (Sheppard J.) 27 July 1983.
Repatriation Commission v. Bishop (1983) 48 ALR 461 (Toohey J.)
Repatriation Commission v. Morcombe (Beaumont J.) 19 September 1983.
Repatriation Commission v. Evans (Northrop J.) 21 December 1983.
Repatriation Commission v. Compton (Toohey J.) 20 February 1984.
Repatriation Commission v. Williams (Fitzgerald J.) 30 March 1984.
Repatriation Commission v. Campbell (Fitzgerald J.) 30 March 1984.
O'Brien v. Repatriation Commission (Full Federal Court) 11 April 1984
Repatriation Commission v. Perrott (Kirby J.) 29 May 1984.
Repatriation Commission v. Reid (Wilcox J.) 1 June 1984.
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