Rose, H.J. v The Repartraition Commission

[1982] FCA 231

Re: HARRIET JEAN ROSE
And: THE REPATRIATION COMMISSION (1982) 65 FLR 330
No. G62 of 1982
Defence and War

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

Defence and War - Dependent Repatriation Benefit - appeal from Repatriation Review Tribunal - whether death attributable to war service - cause of death not able to be proved - principle in Law's Case - misapplication of onus of proof - decision set aside for error of law and remitted for reconsideration.

Repatriation Act 1920, ss. 24AA, 47, 101, 107VG, 107VH, and 107VZZH

Defence and War - Dependant repatriation benefit - Appeal from Repatriation Review Tribunal - Whether death attributable to war service - Cause of death not able to be proved - Principle in Law's case - Misapplication of onus of proof - Decision set aside for error of law and remitted for reconsideration - Repatriation Act 1920 (Cth), ss. 24AA, 47, 101, 107VG, 107VH, 107VZZH.

HEADNOTE

The applicant lodged a claim for a pension under the Repatriation Act 1920 in respect of the death of her husband, which occurred just over twenty-five years prior to the application. The applicant's husband served in the Australian Military Forces from 1941 to 1945. They had married in 1936, but after his discharge in 1945 they did not resume cohabitation. In 1951 the husband disappeared whilst bushwalking. A skeleton discovered in 1955 was accepted as his remains and it was accepted that he had died in 1951. No inquest was held and the death certificate stated that the cause of death was unknown.

Section 101(1)(b) of the Act provides for the Commonwealth's liability to pay a pension to dependants of a deceased serviceman whose death has arisen out of or is attributable to war service.

Section 101(1A) of the Act provides that the death of a serviceman shall be deemed to have arisen out of his war service if it was (in the opinion of the Commission) due to an accident, disease or infection that occurred or was contracted because of his being on war service. Subsection (2) of s. 101 (which was accepted as applying to the husband) provides for payment of a pension where a pre-existing condition has been aggravated by war service and leads to death.

Section 47(2) provides that an application or claim shall be granted by the Commission unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the application or claim.

Section 107VH(2)(a) provides that the Tribunal shall set aside a decision refusing a claim or application for a pension, unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application.

The applicant claimed that her husband had died from a heart attack which arose out of or was attributable to his war service. There was a lack of satisfactory evidence on the point. Medical examinations concluded prior to enlistment and discharge did not give any indication of any condition to which the death might be related. Certain friends and relations indicated a belief that he had a bad heart, whilst others suggested the contrary. Whilst no doctor who treated the husband was ever identified, there was some evidence of statements that he had been receiving medical treatment for a heart condition prior to his death.

The applicant's claim was rejected and, after several appeal steps were taken, the claim was reviewed by the Repatriation Review Tribunal, and the Tribunal affirmed the Commission's decision.

The applicant appealed from that decision to the Federal Court.

Held: (1) The Tribunal did not implement the requirements of the statute, in that: (a) The Tribunal was wrong in law in concluding that the applicant had the onus of proof to establish the cause of death and its relation to war service. Repatriation Commission v. Law (1981) 55 ALJR 694; Repatriation Commission v. Byrne (1981) 40 ALR 296; Lennell v. Repatriation Commission unreported (Federal Court of Australia, Full Court, 3rd February, 1982) applied. (b) No tribunal, properly directing itself, could consistently with the procedures adopted be satisfied, on the material available, beyond a reasonable doubt, that the husband did not die from heart disease. (c) The Tribunal's finding that there was no connexion between the husband's death and his war service was either founded on or so immediately related to its views with respect to the cause of death, that the deficiencies in the Tribunal's views and findings in relation to the cause of death destroyed the finding in relation to connexion with war service.
(2) Section 101(1)(b) of the Act does not require that the cause of death exist at the time of war service.

Repatriation Commission v. Law (1981) 55 ALJR 694, applied.
(3) The proper course was for the matter to be remitted to the Tribunal for rehearing and redetermination according to law. The medical evidence, which was by no means satisfactory, was not such as to persuade the court that the Tribunal, properly considering the matter, could not have been satisfied beyond a reasonable doubt that there was no real possibility of a relationship between the husband's war service and his death.

Lennell v. Repatriation Commission unreported (Federal Court of Australia, Full Court, 3rd February, 1982) followed.
(4)(a) The appeal should be allowed. (b) The decision appealed from should be set aside. (c) The matter should be remitted to the Tribunal to be determined according to law after the hearing of appropriate further evidence. (d) The respondent should pay the applicant's taxed costs of the appeal.

HEARING

Brisbane, 1982, October 26; November 1. #DATE 1:11:1982

APPEAL

This was an appeal on a question of law pursuant to s. 107VZZH of the Repatriation Act 1920 from a decision of the Repatriation Review Tribunal.

The facts appear fully in the judgment.

D.J. McGill, for the applicant.

J.H. Byrne, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Richardson Keller & Co.

Solicitor for the respondent: B.J. O'Donovan, Commonwealth Crown Solicitor.

P.H. MORRISON

ORDER

1. The Appeal is allowed.

2. The decision appealed from is set aside.

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

4. The respondent pay the applicant's taxed costs of the appeal.

JUDGE1

The applicant has appealed to this Court on a question of law pursuant to s.107VZZH of the Repatriation Act 1920 ("the Act") from a decision of the Repatriation Review Tribunal. The matter is within the original jurisdiction of the Court (Federal Court of Australia Act 1976, sub-s. 19(2)), and the jurisdiction is exercisable by a single judge (ibid, sub-s. 20(1)).

Joseph James Rose was born on 1 February 1910 at Rockhampton, Queensland. He completed a correspondence course in accountancy and was accepted as an Executive Director by Lightband and Donaldson Pty Ltd of Brisbane, where he met the applicant who was also employed by that company. They were married on 21 December 1936. Mr Rose served with distinction in the Australian Military Forces from 21 July 1941 to 21 December 1945, including a period of active service overseas. After his discharge, he did not resume cohabitation with the applicant but resided at a Private Hotel in the inner-city area of Brisbane. He disappeared on 21 July 1951. A skeleton found at Mt Coot-tha near Brisbane, in June 1955, was accepted as the remains of Mr Rose and it was accepted that he died on 21 July 1951 whilst bushwalking. No inquest was held. The death certificate which was issued stated that the cause of death was unknown.

On 6 September 1976, more than a quarter of a century after the date accepted as the date on which Mr Rose died, the applicant lodged a claim for pension under the Act in respect of his death.

The liability of the Commonwealth to pay a pension to the dependants of a deceased serviceman is imposed and defined by s.101 of the Act. Sub-section (1) of s.101 relevantly provides:

"101(1) Upon the . . . death
(a) of any member of the Forces who was employed on active service, whose . . . death has resulted from any occurrence that happened during the period from the date of his enlistment to the date of the termination of his service in respect of that enlistment; or
(b) of any member of the Forces whose . . . death has arisen out of or is attributable to war service,
the Commonwealth shall, subject to this Act, be liable to pay to . . . his dependents . . . pensions in accordance with Division 1: . . . "

A number of provisos follow, none of which is suggested to apply in this case. Nor is it in question that Mr Rose was a "member of the Forces who was employed on active service" or that the applicant is a dependent (see para. 99(1)(b)). Sub-sections 101(1A) and (2) provide, so far as is now material -

"101(1A) For the purpose of of paragraph (b) of sub-section (1) but without affecting the generality thereof, the . . . death of a member shall be deemed to have arisen out of his war service if it . . . was, in the opinion of the Commission, due to an accident that occurred or to a disease or an infection that was contracted, and that would not have occurred or been contracted but for his being on war service or but for changes in his environment consequent upon his being on war service.
101(2) Notwithstanding that, in the case of a member of the Forces, who, after his enlistment, served in camp in Australia for at least six months or was employed on active service, the origin or cause of his incapacity or death existed prior to his enlistment, then, if in the opinion of the Commission or a Board -
(a) the incapacity from which the member . . . has died has been contributed to in any material degree, or has been aggravated, by the conditions of his war service; and
(b) . . .
the Commonwealth shall, subject to this Act, be liable to pay to . . . his dependents . . . pensions in accordance with Division 1."

It is not in dispute that Mr Rose was a member of the Forces to whom sub-section (2) applied.

An application for a pension under s.101 of the Act is made pursuant to s.24AA, sub-ss. (1) and (2) of which provide:

"24AA. (1) A claim for pension -
(a) shall be in accordance with an approved form; and
(b) shall be accompanied by such evidence available to the claimant as he considers may support the claim.
(2) Sub-section (1) shall not be taken as imposing any onus of proof on a claimant."

The manner in which such an a application is to be dealt with appears in s.47 which provides:

"47(1) The Commission, or a Board, in hearing, considering, determining or deciding a claim or application, and the Commission, in hearing, considering or deciding an appeal -
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to -
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or
(ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a member of the Forces was not reported to the appropriate authorities.
(2) The Commission or a Board shall grant a claim or application, and 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."

The applicant's claim was rejected on 25 February 1977 by a Repatriation Board constituted under the Act. She appealed on 13 April 1977 to the Repatriation Commission pursuant to s.28 of the Act, but her appeal was disallowed on 8 August 1977. A further appeal on 30 October 1977 to a War Pensions Entitlement Appeal Tribunal (since abolished) was dismissed on 19 April 1978. On 19 September 1980, the applicant submitted further evidence in writing with respect to her claim to the Commission pursuant to sub-s. 107VM(1) of the Act, and on 29 April 1981 the Commission re-considered and again rejected her claim.

There exists under s.107VC a right to a review of a decision of a Commission by a Repatriation Review Tribunal as constituted under s.107VB. On 11 May 1981, the applicant lodged an application for a review by that Tribunal of the Commission's decision of 29 April 1981. Proceedings in the Tribunal are governed by ss. 107VG and 107VH, which materially provide:

"107VG. The Tribunal, in conducting a proceeding, or the hearing of a proceeding, or in making a decision in a proceeding, on a review -
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to -
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or
(ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a member of the Forces was not reported to the appropriate authorities.
107VH.(1) In a proceeding on a review, the Tribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before the Tribunal in the proceeding that was not before the Commission or the Board but would have been relevant to the making of a decision in the proceeding before the Commission or the Board.
(2) On completion of its consideration in a proceeding on a review -
(a) where the decision the subject of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or
(b) in any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceedings in which the decision was made.
(3) Where the Tribunal sets aside a decision the subject of a review, it shall substitute for that decision such decision as the Tribunal considers to be in accordance with this Act.
(4) Where the Tribunal does not set aside a decision the subject of a review, it shall affirm that decision."

On 15 February 1982 the Tribunal affirmed the Commission's decision and the applicant has appealed to this Court. The powers of the Court are as stated by sub-ss. (4) and (5) of s.107VZZH, which provide:

"107VZZH
. . .
(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5) Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

The received view is that, if the Court is of the opinion that no tribunal, properly directing itself, could have been satisfied beyond reasonable doubt that there were insufficient grounds for allowing the claim, it should order the payment of a pension. If that is not the only conclusion open on the evidence, but it appears from the Tribunal's reasons that it has misdirected itself, the appropriate course is to remit the matter to the Tribunal to hear and determine it in accordance with the law. It is common ground that if I am of opinion that the applicant is entitled to a pension, it should be ordered to be paid from 15 February 1978.

Although it is not suggested that the applicant is limited by the course which the proceedings have taken thus far, the dispute has centred on the applicant's contention that Mr Rose died from a heart disease which arose out of or was attributable to his war service (para. 101(1)(b)). It was that contention which was discussed in detail by the Tribunal in the process of concluding that it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the applicant's claim. It is therefore convenient to look first at that question, without however wishing to acknowledge that an issue as to whether or not an ex-serviceman's death was war service related necessarily involves identification of the cause of his death.

Not suprisingly in view of the nature of the claim and the length of time which elapsed before the applicant first requested a pension, there was a noticeable lack of satisfactory evidence available to the Tribunal.

Mr Rose was medically examined prior to both enlistment and discharge from the Australian Military Forces. The examinations revealed no evidence of any condition to which his death might possibly be related. Nor did a statement made by Mr Rose for the purpose of his medical examination prior to discharge give any indication of such a condition.

Information was available from various friends and relations concerning both Mr Rose's physical condition and his personality. Some indicated a belief that he had a bad heart. Others suggested to the contrary. Their views were in many cases influenced not only by what they observed but also by their assessments of him, which ranged from secretive to garrulous. A newspaper published at the time the skeleton was found stated that Mr Rose was "being treated by a doctor for heart trouble".

There was other evidence of statements that Mr Rose was receiving medical treatment for a heart condition prior to his death, some quite convincing. For example, to quote a statement from the Reasons of the Tribunal:

"His co-director, Mr P.E. McCarthy, said in a letter to the Repatriation Department, dated 4 January 1977, that the member had told him that his heart was in bad condition and that he had had heart attacks whilst in the Forces; that he was being treated by a Wickham Terrace specialist for his heart condition right from the time of his demobilisation and frequently had heart turns and blackouts in the office and had to go home and rest; . . . "

The evidence of his best friend, who saw him daily in the years prior to his death, and of his landlady was to similar effect.

However, no doctor who treated Mr Rose was ever identified.

Various hypothetical medical opinions were available to the Tribunal. That most unfavourable to the applicant was a report given to the Commission on 28 April 1981 by its Senior Medical Officer (Appeals), although I hasten to add that none of the medical experts expressed views in favour of a positive conclusion that Mr Rose had heart disease which caused his death or that his death was war service related, or did more than acknowledge those possibilities. The following extracts from the report of the Commission's Senior Medical Officer (Appeals) sufficiently capture the flavour of the debate.

"The fact is, nobody knows whether he actually had heart disease or not. Furthermore, nobody knows what he died from, and nobody is ever likely to know."

and

"None of the evidence is in any way conclusive".

and

"I would have to agree . . . that it is impossible to say that he did not have heart disease. I would go further, and say that it is quite impossible to say that he did."

and

"It is not possible to say what he died of . . . "

and

"Furthermore, even supposing he may have had heart disease, (as he may have had a lot of other things wrong with him) there is no reason to connect it with war service."

and

"No one will ever know what this man died from. There is nothing to suggest cardiac disease to the exclusion of other causes, and certainly nothing in the man's service record which would suggest any related factor on service to any cause of death, cardiac or otherwise."

All the medical evidence available to the Tribunal possessed at least two major flaws. Firstly, it concentrated on whether Mr Rose had heart disease which caused his death, and paid little if any attention to whether, if he did, there was or might be some relationship with his war service or whether, more generally, his death was or might be war service related. Even so stated, the matter is probably put too narrowly since it tends to emphasise a possible entitlement under para. 101(1)(b) to the exclusion of the other provisions. Secondly, the medical experts whose hypothetical views were asked were not provided with the total material available to the Tribunal concerning Mr Rose; the result was, of course, that the various theoretical opinions were not founded on the same data, much less on the whole of the available information. A third matter which might be mentioned was that the experts became involved to varying degrees in the evidentiary questions which arise in proceedings under this Act, in which the ultimate search is not for a positive conclusion on the balance of probabilities but to ascertain whether a negative proposition has been established beyond a reasonable doubt.

The Tribunal considered the matter in detail only in connection with para 101(1)(b) as extended by sub-s. 101(1A), because it considered that, the "appropriate evidence being absent", the applicant could not rely on para 101(1)(a) or sub-s. 101(2) of the Act. In view of the decision at which I have arrived in relation to the Tribunal's sub-s. 101(1)(b) conclusions, it is unnecessary for me to consider further its rejection of the application of the other provisions of s.101.

The Tribunal used appropriate language in the expression of its conclusion. However, its reasons demonstrate that it did not implement the requirements of the statute. Although it noted other passages from the judgment of Aickin J., with whom Gibb CJ and Stephen and Mason JJ agreed, in Repatriation Commission v. Law (1981) 36 A.L.R. 411, the Tribunal seized upon a passage from his Honour's judgment at the foot of p.423, to hold that the onus of establishing the cause of Mr Rose's death was "one for the Applicant". In the view of the Tribunal, an applicant is required to furnish "some elementary information . . . in order that the claim may be investigated by the Commission". The passage at p.423 was seen to have the effect that -

"the Applicant has to establish first that the Member died from heart disease, and second, that such heart disease had arisen out of or was attributable to his war service."

Elsewhere, it was said that the statement by Aickin J.,

"appears to support this view . . . that there are certain things which must be established by the Applicant (as a preliminary investigation of the claim by the Commission and its assumption of the onus of proof)."

Law's Case does not support the Tribunal's views but is quite inconsistent with them. In the passage at p.423 relied on by the Tribunal, Aickin J. was concerned to reject an argument that the references to "insufficient grounds" in sub-s. 47(2) and 107VH(2) are not related to whether, on the evidence, the applicant is entitled to succeed, but are related rather to the question whether an applicant's claim is founded on one or other of the grounds selected by s.101 as the basis for an entitlement to a pension. It was in that context that Aickin J. said, at p.423, line 33 that:

"The expression 'insufficient grounds' must include, though it may not be limited to, the conclusion that the evidence does not establish on the relevant standard of proof the absence of the requisite connection between the carcinoma and war service."

Pausing there, it is plain when regard is had to other passages in the judgment to which I will come, that his Honour was saying that if the Commission or a Tribunal is satisfied, to the requisite standard, which is beyond reasonable doubt, that on the evidence the requisite connection between a cause of death and war service is not established, it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. His Honour left open the question whether there might be other jusitification for rejecting a claim in addition to the state of the evidence. The judgment continued after the passage which I have quoted:

"In so far as the claimant had to prove anything, she had to establish two things, first that the carcinoma from which her husband died was caused by smoking, and that was found by the Review Tribunal; and second, that his smoking had arisen out of or was attributable to his war service . . . . Section 101(1)(b) and (1A) require no more than that."

His Honour then went on to reject a submission that the subject of a review before the Tribunal is not the objective facts but the opinion of the Commission in relation to those facts.

It is plain from other parts of Aickin J's judgment in Law's Case that the passages relied on by the Tribunal do not support its conclusions that "the Applicant has to establish first that the Member died from heart disease, and second, that such heart disease had arisen out of or was attributable to his war service." In Law's Case, the cause of death was not in doubt, and accordingly nothing which was said in the judgments in terms refers to the onus of proof in relation to the cause of death. However, it is not difficult to detect what the correct approach must be.

Mr Law commenced to smoke during the war and his smoking caused a carcinoma which led to his death. As here, there was a conflict of hypothetical medical evidence, in that case as to whether or not a relationship existed between Mr Law's smoking and his war service. At p.419, Aickin J. described a conclusion of the Tribunal that it was not convinced of the requisite relationship between Mr Law's death and his war service as reversing the statutory onus of proof. He continued: "The Review Tribunal did not have to be so convinced; it had to be satisfied beyond reasonable doubt of the contrary proposition". At p.423, in a prior passage to the one relied on by the Commission, his Honour referred to the "heavy onus . . . placed upon the Commission to satisfy the Tribunal beyond reasonable doubt of that negative proposition". At p.424, he said:

"I am satisfied that the operations of that section" (s.107VH) ". . . require that in relation to any facts 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. The reference in sub-s. (2) to the 'completion of its consideration in a proceeding on a review' is to the entire process of examining the evidence and determining whether the Review Tribunal is satisfied beyond reasonable doubt that each of the factual requirements has not been established. Sub-section (2) then directs the Review Tribunal to what it must do in the light of its determination, i.e. to set aside the decision if it is not so satisfied, and to uphold the decision if it is so satisfied.
I am therefore in agreement with the Full Court of the Federal Court that on the material before it the Review Tribunal could not properly be satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim or application. I would therefore dismiss the Commission's appeal."

Murphy J. delivered a separate judgment in Law's Case in which he agreed the Commission's appeal should be dismissed. At the foot of p.412 and the top of p.413, his Honour pointed out that it is obvious that the requirement that the Commission must disprove the claim rather than that the complainant must prove it will result in many claims being allowed which in truth are not well founded. As his Honour said, that is the price of ensuring that no valid claim is rejected because of insufficiency of proof. Further down p.413, his Honour expressly and unequivocally stated that the onus of disproof upon the Commission does not only arise when the claimant has first established something in the nature of a prima facie case.

There have been subsequent decisions of this Court, including at least two decisions of the Full Court: see Repatriation Commission v. Byrne (1981) 48 A.L.R. 296, and Lennell v. Repatriation Commission, an unreported decision of the Full Court given on 3 February 1982.

Byrne's Case concerned claims by widows that their husbands contracted malaria and other infectious tropical diseases during, or as a result of, war service, and that those infections caused or precipitated a form of cancer from which each man suffered much later in his life and from which he died. There was a conflict of medical evidence concerning whether or not there was a causal connection between the original diseases and the eventual deaths from cancer. The Full Court said at pp. 302-202:

"In order to have succeeded the Commission would have had to demonstrate that no tribunal, properly directing itself as to relevant matters of law, could have come to any other conclusion than that it was satisfied beyond reasonable doubt that malarial or other tropical infections could not have been the cause of the cancer suffered by the deceased in their later lives. In our opinion one could not possibly reach that conclusion. The matter was one essentially for the Tribunal as the tribunal of fact. We do not regard the hypothesis put forward by Dr Metcalf and the other witnesses as fanciful. We agree that it stands as no more than a possibility but in our opinion the Tribunal was well entitled to take the view, as it did, that the possibility was real and distinct".

At pp. 303 and 304, the Full Court pointed out that the submissions for the Commission that the Act requires two steps in the process of reaching a decision, the first placing an onus upon an applicant to establish a case on a balance of probabilities, and the second requiring that the whole of the evidence be looked at and that the claim be determined in the applicant's favour unless the Tribunal was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim had been decided against the Commission by Law's Case. The Full Court said that there was no first step, and no onus based on a claimant.

Lennell's Case also related to a widow's claim. Mr Lennell was a pipe and cigarette smoker who died of lung cancer. The medical evidence suggested that the form of cancer of which he died occurs in people who have never smoked a cigarette although its incidence is slightly higher in smokers than non-smokers, and that it does not occur in smokers or non-smokers unless there is some pre-disposing cause. The cause of Mr Lennell's lung cancer was not known and there was no medical evidence relating it to war service. The highest the matter could be put was that, because its cause was not known, it could not be said with certainty that something during Lennell's war service might not have caused or played a part in causing the condition which led to his lung cancer. The applicant's contention was that, because there was thus a possibility which could not be excluded that the cause of the lung cancer which led to Mr Lennell's death was related to his war service, he was entitled to succeed. A decision of the Repatriation Commission that Mrs Lennell was not entitled to a pension was reviewed by the Administrative Appeals Tribunal which affirmed the Commission's decision. An appeal to the Federal Court was heard by a Full Court because, although the Federal Court was exercising original rather than appellate jurisdiction, the Administrative Appeals Tribunal had been presided over by a Presidential Member. The Full Federal Court, by a majority, allowed the appeal. The majority, Northrop and Sheppard JJ., held that the reasons expressed by the Administrative Appeals Tribunal in arriving at its conclusion that Mrs Lennell was not entitled to a pension revealed that it had misdirected itself in its consideration of the evidence and the onus of proof. The dissent of Toohey J. related only to his view that, on a proper analysis of the Tribunal's reasons, he was satisfied that, although there might have been chosen language more consonant with the approach taken in Law's Case, the proper test was applied at each relevant step. All members of the Court accepted and applied the views which had formed the basis of their joint decision in Byrne's Case which are quite incompatible with the approach of the Tribunal in this matter.

The Tribunal's view that "the Applicant has to establish first that the Member died from heart disease, and second, that such heart disease had arisen out of or was attributable to his war service" cannot stand with those decisions. Its further conclusion that ". . . on the evidence, . . . the Applicant has established neither of these things" was wholly irrelevant and demonstrated that its approach was erroneous.

In Lennell's Case, the Full Court did not substitute a decision in favour of Mrs Lennell but remitted the matter for rehearing and redetermination. The Court declined to hold that, on the evidence which left open the theoretical possibility that Mr Lennell's death might have been related to his war service, no other decision than to grant the pension was possible. All members of the Court rejected the proposition that where a relevant fact or factor is unknown a claim for a pension must succeed.

Commencing at p.14 of the transcript of their reasons, the majority, said:

"Before turning to the second submission we should say something of the applicant's submission that in every case where a serviceman died of a disease, the cause of which is unknown, his dependents were entitled to a pension because it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. We would reject this submission because, 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. We do not think that that approach ought succeed here. We are of that opinion because of the amount of evidence which there is concerning the deceased's medical history and war service. We would consider such a general approach to be unhelpful and dangerous. It over simplifies the problem and seeks to equate the Australian legislation to that enforced in the United Kingdom. In our opinion the decisions in England in Judd v. Minister of Pensions (1966) 2Q.B. 580 and Coe v. Minister of Pensions (1967) 1 Q.B. 238 have no application in Australia."

Toohey J. said at p.15:

"I do not think that it is inconsistent with Law's Case to say that it is only remotely possible that an unknown factor was war caused or related to war service and then go on, as the Tribunal did, to conclude: 'We consider any such possibility as fanciful or tenuous'. To say that the aetiology of a disease is unknown, does not mean that logically war service cannot be excluded. In a particular case the cause of the fatal condition may be unknown but on the material available it is possible to be satisfied beyond reasonable doubt that it was not attributable to war service." It may well be that those observations in Lennell's Case are equally applicable where what is unknown is not the cause of the disease which caused death but the cause of death, or even whether a former member of the services is dead. Conviction beyond a reasonable doubt based on inference from circumstances is not unknown, even if uncommon. There is no present occassion to pursue these potentially difficult questions. It may however be noted that the Court did not say that an absence of evidence necessarily means that a claim may not succeed.

It is appropriate at this point to go back to the Tribunal's decision. Before its consideration of Law's Case led it to conclude that there was an onus on the applicant, the Tribunal had said that if there was an onus on the Commission to establish the cause of death, the Commission "could not possibly" discharge that onus. Having, as I have said, held that there was an onus on the applicant, the Tribunal then said:

"However, if we accept that there is an onus on the Commission to establish the cause of death, it would be necessary to consider the evidence before the Tribunal.'

Reference was then made to the evidence which the Tribunal considered fell into four categories. The statement was made that: "This oral evidence, contradictory as it is, taken in conjunction with the lack of any medical evidence whatsoever to support the existence of heart disease either before, during or after war service, satisfies the Tribunal that the Commission has discharged the onus of establishing the cause of death, if, indeed, it bears such an onus."

Elsewhere the Tribunal had made the express finding of fact "that the cause of the Member's death is unknown". Even if what was said to be the affect of the evidence is read as a statement that the Commission had discharged the onus of establishing that the cause of death was not heart disease, rather than it had discharged the onus of establishing what the cause of death was, which plainly it had not, that statement of the Tribunal is simply neither in accordance with the evidence nor supported by an acceptable process of reasoning. In a later passage, the Tribunal by its comments revealed that it was under a misapprehension as to evidence in relation to whether Mr Rose had experienced pains in his chest during war service.

In Law's Case, Aickin J., after reviewing the medical evidence, said at p.423, line 5:

"The conflict between the material provided by the Commission and that provided by the respondent was, in the end, a conflict of expert medical opinion on the question of whether the cancer was caused by smoking which arose out of or was attributable to war service. The Review Tribunal appears to have preferred the opinion of the Commission's medical officers to that of Sir Edward Dunlop. In the Civil Court it would be necessary for the Judge, or the jury if there were one, to hear oral evidence from the expert witnesses and to resolve any conflict on the balance of probabilities, taking into account the impressions given by each expert witness. The Review Tribunal in the present case is in a very different position. In the first place it had only the written reports of the expert witnesses. Moreover, it was required to find in favour of the applicant unless it was satisfied beyond reasonable doubt that there were insufficient grounds for doing so. Thus a heavy onus was placed upon the Commission to satisfy the Tribunal beyond reasonable doubt of that negative proposition. Although the medical reports were in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong."

At p.414, Murphy J. dealt with the role of the Commission where there is a conflict of evidence. He said:

"The role of the Commission and of the Tribunal should not be misunderstood. Their function was to decide a question of fact or of mixed fact and law. They were not, on the evidence, bound in law to find for the claimant. Even where experts differ, as here, it is open to the Tribunal to be satisfied beyond reasonable doubt that there were insufficient grounds. A conflict of testimony (expert or otherwise) does not require that the claim be upheld (any more than in a criminal trial it would require an acquittal) although often it would have that result. Nevertheless, it is not enough that the Tribunal prefer the evidence (including opinion evidence) which tends to disprove the claim. Even if it rejects the evidence in favour of the claim the claimant is entitled to succeed unless the Tribunal is satisfied beyond reasonable doubt that there are insufficient grounds for the claim. In the light of Sir Edward Dunlop's opinion I find the Tribunal decision astonishing, but in law, because there was evidence which, if accepted, disproved the claim, the Tribunal was entitled to be satisfied beyond reasonable doubt that there were insufficient grounds, and, were it not for its errors of law, it is difficult to see how the decision could be disturbed. For this reason it should be stressed that the duty of the Repatriation Commission and the Repatriation Review Tribunal is to implement the onus of proof section, not to frustrate it."

In Lennell's Case, the majority said that the respective opinions of Murphy J. and Aickin J. are not quite the same and that the view of Aickin J. must prevail because of the agreement in it of the other members of the Court. I think that, for the purposes of this case, any difference does not matter. The Tribunal seems not to have accepted the evidence of some of the lay witnesses for the applicant and perhaps rejected evidence of the applicant herself. Again some criticism by counsel for the applicant of the comments by the Tribunal in giving its reasons are not without force. Other witnesses, including the medical experts on both sides, were not called to give evidence. No possible basis existed to disbelieve all evidence which supported or acknowledged that Mr Rose died of heart disease and there is no finding by the Tribunal indicating that it rejected the credibility of the various witnesses whose evidence was to that effect. The Tribunal simply seems to have decided to prefer the view of those who thought that Mr Rose did not have heart disease, saying that evidence which might suggest that he did was "countered" by evidence which suggested that he did not It is not really possible to say more of this part of the decision, which is by no means free from elements of confusion. Certainly, no clue is given as to how a decision might have been made as to what version or versions were to be preferred in the circumstances, with all sorts of "evidence" being obtained by all sorts of means including letters and telephone calls, and no process of testing adopted save such inquisition as was instigated by the members of the Tribunal.

Were the applicant's entitlement to a pension to depend merely on whether Mr Rose died from heart disease, I would have no hesitation in ordering that the pension be granted. As the Tribunal itself noted in one part of its reasons, the Commission could not possibly prove otherwise. No tribunal, properly directing itself, could consistently with the procedures adopted be satisfied on the material available beyond a reasonable doubt that Mr Rose did not die from heart disease. However, that is not the only question, if indeed it is an appropriate question at all.

It would not be fair to the Tribunal to suggest that it was unaware of what para s.101(1)(b) provides.

It found as facts not only

"7. that the cause of the Member's death is unknown"

but also

"8. that there is no connection between the Member's death and his war service."

Further, in concluding its decision, the Tribunal referred to the unanimous decision of the Full Court of this Court in Repatriation Commission v. Law 31 A.L.R. 140 and especially a passage at p.150 which it set out, and then went on:

"The Tribunal is satisfied, based upon the written evidence before it, the evidence given and the further evidence obtained as a result of the Tribunal's own initiatives, that the relationship between the death of the Member and his war service is so tenuous that it precludes the Tribunal from concluding that his death arose out of or was attributable to his war service as is required by section 101(1)(b) of the Act - even after taking into account the extended meaning of that sub-section provided by section 101(1A) of the Act.
. . . In this case the Tribunal accepts that it was possible that the Member died from heart disease which was related to his war service - but in all the circumstances of the case, does not accept it as a real possibility in the sense that that expression was used by the Court (i.e. the Full Federal Court in Repatriation Commission v. Law at pp. 153 and 154).
The Tribunal is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. The Tribunal affirms the Commission's decision of 29 April 1981."

It is, however, beyond argument that the Tribunal's views with respect to the cause of Mr Rose's death cannot be separated from its conclusion that his death was not related to his war service. If the latter conclusion was not wholly founded on the former views, it was immediately related to it and inevitably destroyed by the former's deficiencies.

It does not, however, follow that I should order that a pension be paid to Mrs Rose. So much clearly appears from Lennell's Case. It is one thing to say that a decision cannot stand because the reasoning which led to it is incorrect. At least where factual questions are involved, it is quite another thing to say that the contrary verdict must be entered. The medical evidence to which my attention was directed, which was as I have already indicated by no means satisfactory, does not persuade me that the Tribunal properly considering the matter could not have been satisfied beyond a reasonable doubt that there was no real possibility of a relationship between Mr Rose's war service and his death. The matter must go back for rehearing and redetermination in relation to all limbs of s.101 of the Act.

Because the matter is to go back to the Tribunal, it is appropriate that I mention one other matter. The Tribunal may well have been in error in another respect, although it did not dwell on the aspect in question. A passage in its reasons states:

"Since the Tribunal has declined to find that the Member died from heart disease as contended by the applicant, it is unnecessary to examine the evidence as to whether the Member suffered from that disease during his war service."

Any suggestion that para. 101(1)(b) raises a question of a temporal connection between war service and the cause of death is wholly inconsistent with the judgment of Aickin J. in Law's Case at pp 420 ff.

The Order of the Court is that:
(1) the appeal is allowed;
(2) the decision appealed from is set aside;
(3) the matter is remitted to the Tribunal to be determined according to law after the hearing of appropriate further evidence;
(4) the respondent pay the applicant's taxed costs of the appeal.