Roscoe v Repatriation Commission
[2003] FCA 1568
•23 DECEMBER 2003
FEDERAL COURT OF AUSTRALIA
Roscoe v Repatriation Commission [2003] FCA 1568
VETERANS’ ENTITLEMENTS – pension – death of veteran – whether war-caused – death from leiomyosarcoma – suggested connection to war service through veteran’s smoking habit, acquired during that service – whether veteran rendered operational service – effect of short voyage outside Australia as part of journey to place of service in Australia – connection between cause of death and war service – whether reasonable hypothesis – application of Statements of Principles – whether Tribunal applied correct standard of satisfaction – Tribunal applied beyond reasonable doubt standard – whether should have applied balance of probabilities standard – whether error affected outcome of case
Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Veterans’ Entitlements Act 1986 (Cth) ss 6A, 8, 13, 14, 19, 120, 120A, 120BRepatriation Commission v Kohn (1989) 87 ALR 511 applied
Repatriation Commission v Deledio (1998) 83 FCR 82 referred to
Proctor v Repatriation Commission [1999] FCA 32 (1999) 54 ALD 343 appliedMARY MURIEL ROSCOE v REPATRIATION COMMISSION
V 571 of 2002GRAY J
23 DECEMBER 2003
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 571 of 2002
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
MARY MURIEL ROSCOE
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
GRAY J
DATE OF ORDER:
23 DECEMBER 2003
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 571 of 2002
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
MARY MURIEL ROSCOE
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENT
JUDGE:
GRAY J
DATE:
23 DECEMBER 2003
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The nature of the proceeding
This appeal from the Administrative Appeals Tribunal (‘the Tribunal’) is by a widow, who seeks to establish that the death of her late husband was war-caused. By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the appeal is limited to a question of law.
On 16 August 1999, the applicant lodged a claim with the respondent, the Repatriation Commission (‘the Commission’), claiming a pension pursuant to the Veterans’ Entitlements Act 1986 (Cth) (‘the VE Act’) as a result of the death of her husband (‘the veteran’) on 6 July 1999. On 20 August 1999, the Commission determined that the death of the veteran was not war-caused. The applicant’s application for review of that decision by the Veterans’ Review Board was unsuccessful. The decision of the Veterans’ Review Board was given on 17 July 2000. The applicant then applied to the Tribunal for merits review of the decision. The Tribunal heard the application on 16 July 2002. On 9 August 2002, the Tribunal published its decision and its reasons for decision. It also rejected the claim and affirmed the decision under review. It is from that decision of the Tribunal that the applicant now appeals.
The facts
The veteran was born on 10 May 1924. At the age of 18, he joined the Royal Australian Air Force, in which he served from 5 June 1942 to 30 October 1945. Apart from the journey which is in controversy in this proceeding, he did not leave Australia. Between 26 August 1943 and 31 August 1943, he was a passenger on the MV Koolinda, travelling from Fremantle to Broome. The voyage was part of a journey from Perth to Cape Leveque, to which the veteran was heading for the purpose of working at a radar tracking station. He was stationed at Cape Leveque from 11 September 1943 until 31 July 1944, when he was transferred to Cape Naturaliste.
There was evidence that the veteran became a smoker during his war service, and that he continued to smoke heavily thereafter. He reduced his consumption in the 1980s, after he began to experience chest pains, and stopped smoking in 1998 or 1999. In due course, the conditions of coronary heart disease, emphysema and generalised anxiety disorder were accepted as service-related. Several other conditions were not accepted as service-related.
In June 1999, the veteran was referred to a surgeon after suffering from upper abdominal pain. A liver biopsy revealed a leiomyosarcoma, a malignant tumour of the smooth muscle-type cells. The veteran died in hospital. The cause of death was listed on the death certificate as leiomyosarcoma.
The issues
The fundamental question before the Tribunal was the question of a connection between the applicant’s husband’s war service and his death. The applicant sought to connect the death of the veteran with his war service through his smoking habit, acquired during that service. Such a connection would depend upon the proposition that the primary cancer was in the lungs, and resulted from smoking. For determining the question whether that proposition should be accepted, the VE Act contains a range of provisions. From the point of view of the applicant, the most beneficial statutory regime came into operation if the veteran had rendered ‘operational service’, as defined in s 6A of the VE Act. If he had, the applicant was entitled to succeed unless the Commission was satisfied beyond reasonable doubt that there was no reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. If the veteran had not rendered operational service, the Commission was to decide the matter to its reasonable satisfaction, making it less likely that the applicant would succeed. Of course, for present purposes, the Tribunal stood in the place of the Commission, for the purpose of making the decision.
There were, therefore, two major issues before the Tribunal. The first was whether the voyage from Fremantle to Broome amounted to operational service. The second was whether the evidence disclosed the requisite connection between the cancer that killed the veteran and his smoking habit. The Commission placed before the Tribunal evidence relevant to whether the veteran’s service at Cape Leveque and Cape Naturaliste should be treated as service in actual combat against the enemy, so as to make it operational service, but the applicant does not appear to have treated this as an issue before the Tribunal.
The legislation
Section 6A of the VE Act provides, so far as relevant to the present case:
‘(1) Subject to subsection (3), a person referred to in column 2 of an item
in the following table is taken to have been rendering operational
service during any period during which the person was rendering
continuous full-time service of a kind referred to in column 3 of that
item.Operational service
Item Person Nature of service
1A member of the Defence (a) continuous full-time service outside
Force Australia during a war to which this
Act applies
...
(c) continuous full-time service during a
war to which this Act applies
rendered within Australia
immediately before, or immediately
after, a period of continuous full-time
service of the kind referred to in
paragraph (a) or (b)
(d) continuous full-time service rendered
within Australia during World War 2
in such circumstances that the service
should, in the opinion of the
Commission, be treated as service in
actual combat against the enemy’.
The relevant provisions of s 8 are:
‘(1) Subject to this section, for the purposes of this Act, the death of a
veteran shall be taken to have been war-caused if:(a) the death of the veteran resulted from an occurrence that
happened while the veteran was rendering operational
service;(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran’.
By s 13(1)(a) and (c), where the death of a veteran was war-caused, the Commonwealth is, subject to the VE Act, liable to pay pensions by way of compensation to the dependants of that veteran in accordance with the VE Act. A claim for a pension is to be made in accordance with s 14. Under s 19, the Commission has the primary responsibility for determining a claim.
Section 120 contains the following relevant provisions governing the process of making decisions about the connection between war service and injury, disease or death:
‘(1) Where a claim under Part II for a pension in respect of the incapacity
from injury or disease of a veteran, or of the death of a veteran,
relates to the operational service rendered by the veteran, the
Commission shall determine that the injury was a war-caused injury,
that the disease was a war-caused disease or that the death of the
veteran was war-caused, as the case may be, unless it is satisfied,
beyond reasonable doubt, that there is no sufficient ground for making
that determination....
(3) In applying subsection (1) or (2) in respect of the incapacity of a
person from injury or disease, or in respect of the death of a person,
related to service rendered by the person, the Commission shall be
satisfied, beyond reasonable doubt, that there is no sufficient ground
for determining:(a) that the injury was a war-caused injury or a defence-caused
injury;(b) that the disease was a war-caused disease or a defence-caused
disease; or(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole
of the material before it, is of the opinion that the material before it
does not raise a reasonable hypothesis connecting the injury, disease
or death with the circumstances of the particular service rendered
by the person.(4) Except in making a determination to which subsection (1) or (2)
applies, the Commission shall, in making any determination or
decision in respect of a matter arising under this Act or the
regulations, including the assessment or re-assessment of the rate of
a pension granted under Part II or Part IV, decide the matter to its
reasonable satisfaction....
(6) Nothing in the provisions of this section, or in any other provision of
this Act, shall be taken to impose on:(a) a claimant or applicant for a pension or increased pension, or
for an allowance or other benefit, under this Act; or(b) the Commonwealth, the Department or any other person in
relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the
determination of the claim or application.’Section 120A provides relevantly:
‘(1) This section applies to any of the following claims made on or after
1 June 1994:(a) a claim under Part II that relates to the operational service
rendered by a veteran;...
(3) For the purposes of subsection 120(3), a hypothesis connecting an
injury suffered by a person, a disease contracted by a person or the
death of a person with the circumstances of any particular service
rendered by the person is reasonable only if there is in force:(a) a Statement of Principles determined under subsection 196B(2)
or (11); or(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.’
Section 120B provides relevantly:
‘(1) This section applies to any of the following claims made on or after
1 June 1994:(a) a claim under Part II that relates to the eligible war service
(other than operational service) rendered by a veteran;(b) a claim under Part IV that relates to the defence service (other
than hazardous service) rendered by a member of the Forces....
(3) In applying subsection 120(4) to determine a claim, the Commission
is to be reasonably satisfied that an injury suffered by a person, a
disease contracted by a person or the death of a person was
war-caused or defence-caused only if:(a) the material before the Commission raises a connection
between the injury, disease or death of the person and some
particular service rendered by the person; and(b) there is in force:
(i) a Statement of Principles determined under subsection
196B(3) or (12); or(ii) a determination of the Commission under subsection
180A(3);that upholds the contention that the injury, disease or death of the
person is, on the balance of probabilities, connected with that service.’The evidence
There was evidence from both the applicant and the veteran’s sister that the veteran had begun to smoke during his war service. According to the applicant, he had told her that his smoking increased while he was stationed at Cape Leveque, because he was afraid that the Japanese troops could land anywhere.
As to the nature of the voyage and the veteran’s service at the two locations in Western Australia, the bulk of the evidence as to whether they constituted operational service was given by Associate Professor John McCarthy, a war historian from the Australian Defence Force Academy. The substance of his evidence was as follows. The Koolinda was a standard commercial passenger and cargo vessel, equipped with defensive weapons. As a coastal ship, it would not have gone far out to sea. It was most unlikely that a military passenger in transit would have been assigned to duty on a gun station. Special training was necessary to perform this duty, which would normally be performed by the crew of the ship. There was no record of enemy submarines in the area. If there had been such a threatening event, it would have been recorded in the Operations Record Book of the veteran’s unit. No such event was recorded during the relevant period. German, Japanese and Italian submarines operated in the Indian Ocean during 1943, but mainly off the South African coast, some 5000 air miles from the Western Australian coast. The closest sinking of a ship to the Western Australian coast was more than 1000 miles from that coast. There was no evidence of Italian submarines, which were cargo carriers and not attack craft, near the Western Australian coast. The German submarines were based at Penang and it was most unlikely that they would have approached the Western Australian coast. The Japanese submarines operated largely off Sri Lanka (then known as Ceylon) and there was no evidence that they ventured into Western Australian waters. The Koolinda was not threatened by attack from submarines during the relevant period.
On 16 August 1943, Broome was attacked from the air, with no record of casualties. This was 10 days before the veteran embarked on the Koolinda. On 15 September 1943, Onslow was attacked by bombers, with no casualties. At this time, the veteran was at Cape Leveque, more than 1000 kilometres from Onslow. The overwhelming majority of aircraft tracked by the veteran’s unit at Cape Leveque were identified as friendly. No trackings were recorded until May 1944. In that month, eight unidentified aircraft were tracked, but there is no evidence that they were enemy aircraft. In June 1944, five unidentified aircraft were tracked, but there was no evidence or indication that the radar station was about to become the object of an attack. The Operations Record Book for Cape Naturaliste recorded that aircraft were tracked, both friendly and unidentified. It was almost impossible for the unidentified aircraft to have been Japanese. There was a report of suspected Japanese activity off the Western Australian coast in April 1943, four months before the veteran sailed on the Koolinda, but the reports were demonstrated to be false.
The medical evidence came from a number of sources. The information contained in the death certificate as to the cause of death was provided by Dr Clyde Ronan. Dr Ronan supplied three medical reports. One recorded his diagnosis as leiomyocarcinoma with liver and lung metastases. Dr Ronan said:
‘It is not known where the primary malignancy arose from, but his Oncologist Dr. Craig Underhill thought it was almost certainly a retroperitoneal primary.’
From Dr Ronan’s third report, it appears that a biopsy was performed in relation to the liver. In his view, it was not possible for the sarcoma to have commenced in the liver, so it was regarded as a metastasis. He said that there were no facts in relation to where the primary cancer was, but presumed that it may have been retroperitoneal, on the basis of clinical likelihood. Dr Ronan referred to evidence of tumours in the lungs, up to three centimetres in size. He said that there was no histopathological evidence of what those tumours may be. He expressed the view that it was more than possible that one or more of them may have been a primary lung cancer, because of the veteran’s history as a cigarette smoker. Dr Ronan’s view was that it was possible that the tumour or tumours in the lung may have had no relationship to the leiomyosarcoma.
Dr Richard Byron Collins, a consultant forensic pathologist, provided a medical report and gave evidence. He confirmed the diagnosis of leiomyosarcoma, as a result of the liver biopsy. He referred to an examination of the veteran’s chest and abdomen on 1 June 1999, which showed multiple nodules of varying sizes, scattered through both lungs and liver, with accompanying enlargement of the lymph nodes in the small bowel mesentery. The assumption that all of these lesions consisted of leiomyosarcoma was not unreasonable, although there was confirmation only in relation to one deposit. Dr Collins also referred to a report by the radiologist, indicating a suggestion of a large five-centimetre mass in the head of the pancreas. Dr Collins said the presence of such a mass had never been definitively identified. Even if it did exist, there was no indication as to its cellular composition, except to say that if it were an adenocarcinoma, then it did not give rise to the apparent leiomyosarcomatous lesions throughout the lungs and liver.
According to Dr Collins, there was no robust evidence to support the view that the primary lesion was in the retroperitoneal region. He agreed that the retroperitoneum is a relatively common site for malignancies of the soft tissue (sarcomas), of which a leiomyosarcoma is one particular variant, although he pointed out that in this case there is no clinical or x-ray evidence to support such a location, whereas lesions had been identified readily in the liver and the lungs. Dr Collins expressed the view that it would be more reasonable to hypothesise that one of the deposits either in the liver or lung was in fact the primary tumour, with the remainder being metastases. The location of the various lesions did not preferentially favour either site, nor did it indicate that the retroperitoneal region would be a more likely location for the origin of the malignant process. Leiomyosarcomas are extremely rare lesions in the tumour population of any organ and the group of sarcomas are generally quoted as accounting for 0.2 to 0.4 per cent of all lung cancer cases. A primary leiomyosarcoma of the lung arises from smooth muscle in the bronchi or blood vessels. Heavy cigarette consumption is commonly identified in the case reports. In his report, Dr Collins said:
'If it is accepted there is a real possibility that the primary leiomyosarcoma was bronchial in origin and that his smoking habit was due to the conditions he experienced during the war then, in my view, it could be argued on sound pathological grounds, there exists a reasonable hypothesis linking his demise from leiomyosarcoma with its generation through a war-related consumption of cigarettes.’
In cross-examination, Dr Collins said that one of the lesions in the lung might have been a primary cancer. It might have been a primary leiomyosarcoma or it might have been another type of tumour. To say that it was merely a possibility was as high as one could go.
The radiologist’s report by Dr Rajapakse referred to lesions up to nearly seven centimetres in the liver and multiple enlarged lymph nodes in the mesentery of the small bowel with a large mass lesion nearly five centimetres in diameter. He also referred to the suggestion of a large five-centimetre mass lesion in the head of the pancreas and his opinion was that this was probably the primary. He referred to a three-centimetre round mass lesion in the lower right lobe within a collapsed lung, which was most likely to be a metastatic deposit. He referred to other smaller nodules within the lung fields, each around five to eight millimetres, in keeping with metastatic deposits.
Dr D’Sousa expressed the opinion that the veteran was diagnosed with multiple secondaries in the liver, lung and lymph nodes. According to him, the primary site was unknown, but suggestive of a retroperitoneal site.
Professor Richard Fox, Director of the Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital, expressed the view that leiomyosarcoma can arise from many organs and metastasise widely to the lungs and liver. The Statements of Principles relating to lungs and liver are not applicable as these relate to primary tumours commencing in the lung or liver and not to metastases in the lung or liver. The Statement of Principles relating to malignant neoplasms in the liver specifically excluded soft tissue sarcoma. In Professor Fox’s opinion, the veteran did not have a primary malignant neoplasm of the bronchus, trachea or lung tissue. The primary site was not unequivocally determinable.
Professor Cade, Director of Intensive Care at the Royal Melbourne Hospital, commented in relation to Dr Collins’s report. Professor Cade agreed that only one site had been the subject of a biopsy and that other sites were therefore assumed, rather than proved, to be the same cancer. It was agreed that it was not unreasonable to consider all the lesions to be due to the same cancer. Professor Cade also agreed that the primary site was not identified, but said that the exact site of the primary cancer was irrelevant if the applicable Statement of Principles was that relating to soft tissue sarcomas.
The Tribunal’s reasons
With respect to the issue of operational service, the Tribunal accepted the evidence of Associate Professor McCarthy that the veteran had been a passenger on the Koolinda with other members of his unit, for the purpose of establishing a radar station at Cape Leveque, and that he was unlikely to have taken part in watch or guard duty while on the vessel. The Tribunal also accepted that there was no objective threat to the vessel from enemy aircraft, submarines, mines or personnel at that time. The Tribunal applied what it said was the test from Repatriation Commission v Kohn (1989) 87 ALR 511 at 524, and found that, during the voyage, the veteran did not engage in service in actual combat against the enemy. It concluded that he did not render operational service for the purposes of the Act.
The Tribunal then turned to the question of the cause of death. It agreed that the reservations expressed by Dr Collins showed that certainty of diagnosis might not be possible. The Tribunal expressed reasonable satisfaction that the treating medical practitioners and other specialists had reached conclusions that were soundly based and reasonable. It accepted the evidence of Dr Ronan, Professor Fox and Professor Cade and found that the cause of the veteran’s death was leiomyosarcoma.
The Tribunal then followed the process of deciding whether the material before it raised a reasonable hypothesis connecting death to war service, laid down in Repatriation Commission v Deledio (1998) 83 FCR 82. As a first step, it considered all the material before it and determined whether that material pointed to a hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. It found that the material pointed to such a hypothesis. The Tribunal identified the second step as ascertaining whether there is a relevant Statement of Principles in force. As the relevant Statements of Principles, it identified No 50 of 1998 and No 24 of 2001, concerning soft tissue sarcoma. It found that Statements of Principles concerning malignant neoplasm of the lung were not relevant. The Tribunal held that the third step required it to form an opinion whether the hypothesis raised was a reasonable one. It would form an opinion that the hypothesis was reasonable if the hypothesis fitted within, ie was consistent with, the template to be found in the Statement of Principles. If the hypothesis failed to fit within the template, it would be deemed not to be reasonable and the claim would fail. The Tribunal found that the raised facts fell short of fitting the template. There was no evidence that the veteran satisfied any of the factors listed in par 5 of each of the relevant Statements of Principles, particularly as smoking was not a factor. On this basis, the Tribunal found it unnecessary to proceed to the fourth step. It found that the death of the veteran was not war-caused within the meaning of the VE Act.
The questions of law
In her notice of appeal, the applicant raised what were said to be five questions of law. Each was matched by a ground of appeal. In turn, the grounds of appeal were expanded by written and oral submissions.
The first question of law was whether the Tribunal was wrong in law in failing to consider the Statement of Principles for malignant neoplasm of the lung. The applicant argued that the Tribunal had an obligation to consider that Statement of Principles because there was evidence of a tumour in the lung, the Statement of Principles took into account a malignant neoplasm of undetermined histology, the veteran’s tumour of the lung was of undetermined histology and there was evidence from Dr Collins of a strong possibility that the primary leiomyosarcoma was bronchial in origin.
The second question raised was whether the Tribunal was wrong in law in failing to consider relevant factors in order to establish the appropriate Statement of Principles. It was said that the diagnosis of leiomyosarcoma as the cause of death was not inconsistent with the evidence that the veteran also had a lung cancer of undetermined histology, and the Tribunal should have considered this possibility and should have taken into account the lung tumour.
The third question was whether the Tribunal was wrong in law in failing to provide adequate and sufficient reasons for its determination. It was said that the failure of the Tribunal to deal in its reasons for decision with the question of lung cancer, and failure to accept malignant neoplasm of the lung as present, was not explained.
The next question was whether the Tribunal was wrong in law in failing to examine s 120B of the VE Act to see if it had been complied with and whether the Tribunal was wrong in applying, instead, s 120A.
The final question was whether the Tribunal was wrong in law in finding that the voyage between Fremantle and Broome was not hazardous and that the veteran had not rendered operational service by virtue of the voyage.
The question of operational service
As a matter of logic, the determination of the question whether the veteran had rendered operational service was the first step. This was because the proper approach to the medical evidence depended upon the outcome of that question. Standing in the shoes of the Commission as the original decision-maker, the Tribunal’s task was to determine whether the veteran had rendered continuous full-time service outside Australia, or whether it could form the opinion that the service rendered in Australia during World War 2 should be treated as service in actual combat against the enemy. Although the applicant sought faintly to raise before the Court the question whether the veteran’s service at Cape Leveque or Cape Naturaliste could be considered as service in actual combat against the enemy, this issue was never agitated before the Tribunal. The concentration of the evidence and the submissions was on the nature of the voyage between Fremantle and Broome.
In Repatriation Commission v Kohn (1989) 87 ALR 511, Hill J dealt with a case in which a person who had served in the Royal Australian Air Force had spent several hours outside Australian territorial waters in the course of a sea voyage between Townsville and Cairns. The voyage was for the purpose of transit from one post in Australia to another. His Honour held that the distinction in the legislation between service in Australia and service outside Australia was intended to provide preferential treatment in pension claims to persons whose service was in a real sense outside Australia. His Honour examined in detail the legislative history. He also considered the policy behind the legislation. At 524 - 525, his Honour said:
'It seems to me that to give effect to what I believe to be the legislative policy behind the current legislation and indeed the policy which the foregoing analysis of the history of the legislation indicates was behind all previous manifestations of it, an interpretation of s 6(1)(a) should be advanced which would exclude mere transitory passages outside Australia from the definition of "operational service" in s 6(1)(a).
When attention is focused on the rendering of continuous full-time service outside Australia, it is not correct to look in isolation at the period of time in which the member of the defence force is outside the three mile limit to the exclusion of the periods of time immediately before and immediately after that period. Nor is the purpose for which the member of the forces comes to be outside Australia irrelevant.
Rather, it may be necessary to consider a wider period of time. How wide a band of time that is to be considered will depend upon the facts of each case. One must then ask, looking at the relevant period overall, whether it is correct to categorise the member’s service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia. If the essential character of the service considered overall can be seen to be continuous full-time service outside Australia, then for the purpose of the legislation it is to be treated as operational service. If, on the other hand, looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia, then for the purposes of the legislation it will not be treated as "operational service".
It is obvious that there can be questions of degree involved. Service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and then return during the war, would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character. So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purposes of the legislation because it will then, having regard to the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman’s service by reference to it.
However, where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia.’
It should be noted that, by reason of subsequent amendments, the definition of operational service which his Honour was considering now appears in item (1)(a) of the table in s 6A of the VE Act.
In Proctor v Repatriation Commission [1999] FCA 32 (1999) 54 ALD 343, the Full Court considered the case of a serviceman who travelled by ship from Caloundra to Townsville. The purpose of the voyage was to move armoured tanks, ammunition, support vehicles and spare parts. During the voyage, there was a risk of attack by Japanese submarines. The Full Court upheld the Tribunal’s conclusion that the service of the serviceman concerned involved operational service, for the purposes of the VE Act. The serviceman in question was not simply a passenger on the ship, but had duties to perform. The finding of fact that there was a risk of attack by Japanese submarines during the voyage was important. The Full Court cited Kohn with apparent approval.
It is plain from these authorities that the task of characterisation of the veteran’s voyage from Fremantle to Broome was essentially a fact-finding exercise. The Tribunal in the present case plainly considered the evidence before it. It made it clear that it accepted the evidence of Associate Professor McCarthy. In the light of that evidence, it would have been mere speculation to have found that the veteran was actively engaged in the defence of the ship, or that the ship was subject to any threat from enemy aircraft or submarines. It was certainly open to the Tribunal to find that the voyage was a mere transit between two postings within Australia, and that the essential character of the veteran’s service was that it did not involve service outside Australia. There is no suggestion that the Tribunal misunderstood the task that it had to perform. There is therefore no question of law involved. The conclusion that the veteran did not render operational service was one for the Tribunal.
The Tribunal’s approach to the medical evidence
It is convenient to deal with the other questions and grounds raised by the applicant together.
The Tribunal was required to determine the cause of death of the veteran. It did so by finding, in accordance with medical evidence before it, that the veteran died of leiomyosarcoma. In making this determination, having determined that the veteran had not rendered operational service, the Tribunal was required by s 120(4) of the VE Act to apply the standard of its reasonable satisfaction. Having referred to the reservations expressed by Dr Collins as to certainty of diagnosis, the Tribunal pronounced itself reasonably satisfied as to the conclusions of the treating medical practitioners and other specialists. It expressly accepted the evidence of Dr Ronan, Professor Fox and Professor Cade and found in accordance with that evidence that the cause of death was leiomyosarcoma. There can be no suggestion of error of law on the part of the Tribunal in relation to this process. The question was one of fact and the Tribunal applied the correct standard in determining it.
The next step for the Tribunal was to determine whether there was an appropriate Statement of Principles in force, in relation to that cause of death. The Tribunal found that the two appropriate Statements of Principles were those relating to soft tissue sarcomas. It was not necessary for it to consider the Statement of Principles relating to malignant neoplasm of the lung, because that Statement of Principles required that the malignant neoplasm be a primary one. The Tribunal did not find that the primary site of the cancer was in the bronchus, the trachea or the lung tissue. It could not therefore have found the Statement of Principles relating to malignant neoplasm of the lung to be appropriate. Again, this question was one of fact for the Tribunal and no error of law is disclosed. Nor can it be said that the Tribunal failed to express its reasons for rejecting the proposition that it should look at the Statement of Principles relating to malignant neoplasm of the lung. The Tribunal’s process of reasoning is set out clearly in its reasons for decision. It follows from the Tribunal’s finding as to the cause of death that it would have regard to any Statement of Principles dealing with a disease of the kind that caused the death, and would not have regard to one dealing with some other disease.
The Tribunal then had to consider the applicant’s claim by reference to the Statements of Principles relating to soft tissue sarcomas, to see whether either of those Statements of Principles supported the claim that there was a connection between the death and the war service. Because the Tribunal had found that the veteran had not rendered operational service, it ought to have applied s 120B of the VE Act. The Tribunal was required by s 120B(3) to apply the standard of the balance of probabilities, in determining whether the requisite connection existed. It could only find that the connection existed if it found that it was more probable than not that it existed. The Tribunal did not ask itself whether the connection was more probable than not, on the evidence before it. Instead, the Tribunal applied s 120A of the VE Act, which would have been applicable if the veteran had rendered operational service. The standard applicable under s 120A was much more favourable to the applicant than that under s 120B. Under 120A, the Tribunal would have been obliged to find in favour of the applicant if there had existed a reasonable hypothesis of a connection between the death of the veteran and his war service. Even on the application of this test, the Tribunal held that the applicant failed. It found that, in applying the Statements of Principles, there was nothing to uphold the requisite connection. Given that smoking was not referred to as a factor in the Statements of Principles, the Tribunal found that there was no evidence that the veteran fitted within any of the factors in par 5 of the relevant Statements of Principles. For this reason, the Statements of Principles did not support the connection alleged.
Thus, the Tribunal applied a standard much more favourable to the applicant than it was bound to apply and still held that the applicant’s case failed. If the Tribunal had applied the correct standard, it is apparent that the applicant would have had even greater difficulty in succeeding. She would have succeeded only if, on the balance of probabilities, the Statements of Principles concerning soft tissue sarcoma supported the connection between the veteran’s death and the war service he had rendered. If there did not exist a reasonable hypothesis of such a connection, it is impossible to see how the Tribunal could have found it more probable than not that the connection existed.
It is therefore apparent that the error of the Tribunal in applying s 120A of the VE Act, rather than s 120B, could not have affected the outcome of the proceeding adversely to the applicant. Although it was an error of law, it could not be said that the decision might have been different if the error had not occurred. The error did not affect the outcome of the case.
Conclusion
For these reasons, the applicant’s appeal must be dismissed. The usual order that costs follow the event should apply and the applicant should be ordered to pay the Commission’s costs of the proceeding.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 23 December 2003
Counsel for the Applicant: D De Marchi Solicitor for the Applicant: De Marchi & Associates Counsel for the Respondent: A McMahon Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 20 June 2003 Date of Judgment: 23 December 2003
35
1
0