Repatriation Commission v Williams, Pamela

[1984] FCA 66

Re: REPATRIATION COMMISSION
And: PAMELA WILLIAMS
No. Qld G127 of 1983
Repatriation
1 FCR 245

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

Repatriation - pension payable to dependants - death of former member of the Forces from chronic myeloid leukaemia - aetiology of leukaemia unknown - whether leukaemia "connected with" war service - medical evidence deficient - power of Tribunal to insist that further material be provided - error of law.

Repatriation Act 1920, ss. 47(2), 101, 107VH(2), 107VZ, 107VZZK(2)

Defence and War - Ex-servicemen - Pensions - Aetiology of disease unknown - Whether death arose out of or was attributable to war service - Whether any material pointing to real possibility not so connected - Failure to consider adequate material - Repatriation Act 1920 (Cth).

HEADNOTE

The Repatriation Review Tribunal determined that the dependants of a deceased ex-serviceman were entitled to a pension payable in accordance with the Repatriation Act 1920, Div. 1 of Pt III. The ex-serviceman died of a disease the cause of which was unknown. On appeal.

Held: (allowing the appeal)(1) It was an error of law for the Repatriation Review Tribunal to hold that the claim had to succeed because the aetiology of the disease was unknown and the Repatriation Commission had not led evidence which established beyond a reasonable doubt that, however the disease was caused it was not and could not have been caused by war service.

(2) Rather the Tribunal ought to have adjourned the matter to enable medical evidence to be produced to satisfy itself that there was a "real" possibility that it was not so connected.

HEARING

Brisbane, 1984, March 7, 30. #DATE 30:3:1984

APPEAL.

Appeal from the decision of the Repatriation Review Tribunal pursuant to the Repatriation Act 1920 (Cth), s. 107 VZZH.

R. E. Cooper Q.C. with D. McGill, for the applicant.

T. R. Hartigan Q.C. with D. Boughen, for the respondent.

Solicitor for the applicant: T. A. Sherman, Acting Commonwealth Crown Solicitor.

Solicitors for the respondent: Graham Corney & Co.

B. A. GRAY

ORDER

The appeal be allowed.

The decision of the Repatriation Review Tribunal given on 29 June 1983 be set aside.

The matter be remitted to the Tribunal to be determined according to the law after the hearing of appropriate further evidence.

The Repatriation Commission pay to the respondent her costs in connection with the appeal to be taxed if not agreed upon.

Appeal allowed.

Repatriation Commission to pay costs.

JUDGE1

The Repatriation Commission has appealed from a decision of the Repatriation Review Tribunal given on 29 June 1983. The Tribunal set aside a decision of a delegate of the Commission made on 5 August 1982 affirming an earlier decision of the Commission to reject the respondent's claim for a pension under the Repatriation Act 1920 ("the Act"). The Tribunal substituted a decision that the Commonwealth is liable pursuant to s.101 of the Act to pay to the dependants of Vivian Oliver Williams the pension payable in accordance with Division 1 of Part III of the Act in the case of the death of a member of the Forces with effect on and from 14 October 1978.

1. This is another of the numerous cases brought to this Court in which it is contended that a body appointed by the Act to determine claims under the Act has erred in law in the application of the statutory requirement that the claim be allowed unless the adjudicating body is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim: sub-ss. 47(2) and 107VH(2). The cause of Mr Williams' death was chronic myeloid leukaemia which was first diagnosed in 1976, more than 30 years after Mr Williams' war service. The cause of Mr Williams' leukaemia has not been established. The dispute concerns the Tribunal's conclusion that it was not satisfied beyond reasonable doubt that Mr Williams leukaemia was not "connected with" his war service in a way which satisfies s.101 of the Act.

2. The Tribunal did not hold that the claim had to succeed merely because the aetiology of Mr Williams' leukaemia was unknown. Such a conclusion would have been inconsistent with the opinions expressed in the Full Court in Lennell v. Repatriation Commission (1982) 4 AL.N. No. 29. See also Rose v. Repatriation Commission (1982) 44 ALR 604; affirmed by the Full Court in an unreported judgment delivered on 5 August 1983. Rather, it held that the claim had to succeed because the aetiology of the leukaemia was unknown and the Commission had not led evidence which satisfied the Tribunal beyond reasonable doubt that, however it was caused, the leukaemia was not and could not have been caused by war service.

3. In this Court, the Commission submitted that the Tribunal erred in law in its treatment of the departmental officer's opinion and in granting the claim merely because of its view that the Commission's evidence was deficient. However, its primary submission was that the Tribunal had erred in any event. In effect, the Commission argued that a claim must be rejected unless there is something in the material pointing to a "real possibility" of each element upon which an entitlement may depend which is not disproved beyond reasonable doubt by other material. More particularly, it contended that the present claim must be rejected unless there is something in the material pointing to a "real" possibility of a particular identified connection between war service and Mr Williams' leukaemia which is not disproved by other material. The Commission seeks to have the matter remitted to the Tribunal to have that test applied.

4. In view of the conclusion at which I have otherwise arrived it is unnecessary for me to deal with the Commission's primary argument and it is inappropriate that I do so in advance of the decision which is soon to be delivered in O'Brien v. Repatriation Commission by a Full Court of which I am a member.

5. One possible cause of Mr Williams' leukaemia suggested by the claimant was medication prescribed for him for service related disabilities. The Tribunal found it unnecessary to decide whether that was a cause or a possible cause. It said that it could not do so without further medical evidence but took no step to have such evidence made available. It also stated that, even if it was satisfied beyond reasonable doubt that the suggested relationship between the medication and the incapacity did not exist, "the result is no more than that one possible association with war service has been dealt with. The fact still remains that something caused the fatal condition and no cause has been identifed,...".

6. Another possible cause of leukaemia suggested by the claimant but not even referred to by the Tribunal was service in the tropics. Mr Williams served for a short period in Townsville. The only evidence was that his service in Townsville was immaterial to his leukaemia.

7. The Tribunal did not accept "that the time gap between service and the manifestation of leukaemia (may) in some way suggest the absence of relevant association". It said:
   
   

"To make such a suggestion is to infer that something is known about the time interval between causation and the manifestation of leukaemia. No such evidence is before the Tribunal."

1. The Tribunal concluded that there was no material before it upon which it could base a conclusion that Mr Williams' leukaemia either was or was not "connected with" war service. There was nothing which pointed to a "real" possibility that Mr Williams' leukaemia was connected with war service. But, whether or not there was anything which pointed to a "real" possibility that it was not so connected, the Tribunal was satisfied that the material did not establish an absence of a connection beyond reasonable doubt.

2. The Tribunal held that it was for the Commission to adduce evidence to disprove a claimant's entitlement. There was some such evidence from departmental medical officers which the Tribunal considered failed to comply with s.48 of the Act and consisted only of generalized and unreasoned opinions which did no more than assert a conclusion favourable to the Commission. If that was so, the Tribunal's criticism was well founded: cf Miller v. Minister of Pensions (1947) 2 All ER 372, 374; Mansfield v. Minister of Pensions (1947) 1 W.PAR 489, 493.

3. Nonetheless, it was an unsatisfactory response from the Tribunal in the present case merely to complain that the material available was unsatisfactory and to proceed thereafter on the footing that the proceedings were adversary and the Commission had failed to discharge an onus upon it. The Commission should have provided material properly directed to what was in issue. The Tribunal should have insisted that further material be provided: see s.107VZ. A most obvious case for the exercise of the Tribunal's powers under that provision arises where the medical evidence is deficient and could be improved. In my opinion, the Tribunal erred in law in approaching the matter as it did.

4. The Tribunal's error obviously influenced its decision to grant the pension. This is not a case in which it can be seen by the Court from what is available that no tribunal, properly directing itself, could have come to any conclusion other than to allow the claim. The test expressed by the Full Court in Repatriation Commission v. Byrne (1981) 40 ALR 296 at pp 302-303 whilst obviously suitable to such a case in which there was a comprehensive investigation, was not intended for application at a stage at which doubt and uncertainty exist because of the failure to implement the statutory process. Accordingly, the matter must be remitted to the Tribunal as sought by the Commission: cf. Rose's Case, supra. The respondent is entitled to her costs under sub-s. 107VZZK(2) of the Act.

5. The Court orders that the appeal be allowed, the decision appealed from be set aside, and the matter be remitted to the Tribunal to be determined according to law after the hearing of appropriate further evidence, and that the Repatriation Commission pay to the respondent her costs in connection with the appeal to be taxed if not agreed upon.