Rose, Harriet Jean v Repatriation Commission

[1983] FCA 178

Re: HARRIET JEAN ROSE
And: THE REPATRIATION COMMISSION
No. G118 of 1982
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.
Morling J.
Neaves J.

CATCHWORDS

ADMINISTRATIVE LAW - Whether it was open to the Repatriation Review Tribunal on the evidence before it to be satisfied beyond reasonable doubt that there was no nexus between the deceased's war service and his death.

Repatriation Act 1920 ss. 107VC, 107VM, 107VZZH.

Federal Court of Australia Act 1976 ss. 19, 20.

HEARING

BRISBANE

#DATE 5:8:1983

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

JUDGE1

This appeal is from part of the judgment of a single Judge of this Court (Fitzgerald J.) by which his Honour ordered that the matter before him be remitted to the Repatriation Review Tribunal ("the Tribunal") to be determined by it according to law after the hearing of appropriate further evidence.

The appellant 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 Tribunal. The matter was within the original jurisdiction of the Court and the jurisdiction was exercisable by a single judge: Federal Court of Australia Act 1976 sub-ss. 19(2) and 20(1).

The facts are not in dispute. They may be briefly stated and are taken essentially from the judgment of Fitzgerald J.

Joseph James Rose ("the deceased") was born on 1 February 1910 at Rockhampton. After completing a correspondence course in accountancy he became an executive director with a Brisbane company where he met the appellant who was also employed by that company. They were married on 21 December 1936. The deceased served with distinction in the Australian Military Forces from July 1941 to December 1945 including a period of active service overseas. After his discharge he did not resume cohabitation with the appellant but resided at a private hotel in Brisbane. He disappeared on 21 July 1951. It was accepted that a skeleton found at Mount Coot-tha near Brisbane in June 1955 was the remains of the deceased and 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 25 years after the date accepted as the date of the deceased's death, the appellant lodged a claim for a pension under the Act in respect of his death. The appellant's claim was rejected on 25 February 1977 by a Repatriation Board constituted under the Act. On 13 April 1977 she appealed to the Repatriation Commission pursuant to s. 28 of the Act. Her appeal was disallowed on 8 August 1977. A further appeal by her to a War Pensions Entitlement Appeal Tribunal was dismissed on 19 April 1978. On 19 September 1980 the appellant submitted further evidence in writing with respect to her claim to the Commission pursuant to sub-s. 107VM(1) of the Act. On 29 April 1981 the Commission reconsidered and again rejected her claim.

A right to a review of a decision of the Commission by a Repatriation Review Tribunal exists under s. 107VC of the Act. On 11 May 1981 the appellant lodged an application for a review by that Tribunal of the Commission's decision of 29 April 1981. On 15 February 1982 the Tribunal affirmed the Commission's decision. The applicant appealed to this Court from that decision of the Tribunal.

It is necessary to say something about the evidence before the Tribunal. The deceased was medically examined both on enlistment in the Australian Military Forces and on discharge. No evidence was revealed of any condition to which his death could be related. The deceased made a written statement for the purpose of his medical examination prior to discharge but it gave no indication of such a condition. Certainly it did not refer to any heart problems that he may have experienced during his period of enlistment.

Information was before the Tribunal from friends and relatives of the deceased concerning his health and personality. Some suggested that the deceased held a belief that he had a bad heart. Others suggested to the contrary. There was evidence before the Tribunal of statements that the deceased was receiving medical treatment for a heart condition before his death. No doctor who may have treated the deceased was ever identified.

Various hypothetical medical opinions were available to the Tribunal, some unfavourable and some not.

His Honour was critical of the proceedings before and the findings of the Tribunal in various respects. With reference to the medical evidence available to the Tribunal his Honour said that it

". . . 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."

His Honour held that the reasons of the Tribunal demonstrated that it did not implement the requirements of the Act. He said that the Tribunal wrongly applied certain critical passages from the judgment of Aickin J. with whom Gibbs C.J., Stephen and Mason JJ. agreed, in Repatriation Commission v. Law (1981) 36 A.L.R. 411 and that as a result the Tribunal held that the onus of establishing the cause of the deceased's death was "one for the applicant". His Honour said that the view of the Tribunal 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 the judgment in Law's Case and two judgments of the Full Court of this Court: Repatriation Commission v. Byrne (1981) 48 A.L.R. 296 and Lennell v. Repatriation Commission an unreported judgment of 3 February 1982.

His Honour said:

"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."

Then his Honour went on to say:-

"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."

Towards the conclusion of his Honour's judgment he said:-

"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."

His Honour ordered that the appeal be allowed, the decision appealed from be set aside, that the matter be remitted to the Tribunal to be determined according to law after the hearing of appropriate further evidence and that the respondent pay the appellant's taxed costs of the appeal.

The appeal is brought by the appellant to this Full Court from the order of Fitzgerald J. remitting the matter to the Tribunal.

It was submitted by counsel for the appellant that the Tribunal, on the evidence before it and properly instructing itself on the relevant legal principles, could not have been satisfied beyond reasonable doubt that any heart disease from which the deceased died was not related to his war service. His Honour was said to have fallen into error in concluding that it was open to the Tribunal on the evidence before it to be satisfied beyond reasonable doubt that there was no real possibility of a relationship between the deceased's war service and his death. In these circumstances it was submitted that his Honour should not have remitted the matter to the Tribunal for further hearing.

In the course of argument we were referred by counsel for both parties to a body of evidence, but it is unnecessary to recite it in any detail. Fitzgerald J. referred to sufficient of it in his reasons for judgment.

The material before the Tribunal was voluminous, from a variety of sources and in diverse form. His Honour reached his conclusion after carefully considering the evidence. We are not satisfied that his Honour fell into error in reaching that conclusion. The evidence which could support a finding by the Tribunal that it was satisfied beyond reasonable doubt as to the absence of nexus between the deceased's war service and his death includes the evidence of Dr Kirkpatrick, some members of the deceased's family and the Army medical records relating to the deceased on enlistment and discharge which do not record any heart problems and which show that on discharge he said that he was suffering from no disabilities.

As the matter is being remitted to the Tribunal for redetermination we express no view at all on the question whether the Tribunal should reach the conclusion that it is satisfied beyond reasonable doubt that there was no nexus between the deceased's war service and his death. That will be a matter for the Tribunal to decide on the whole of the material which is then before it.

Counsel for the appellant accepted that if the appellant failed in the submission which we have just considered no attack could be made upon his Honour's order remitting the matter to the Tribunal for further hearing. As we have rejected that submission it follows that the appeal must be dismissed.

It is unnecessary, therefore, to consider whether his Honour was entitled to remit the matter to the Tribunal for further hearing even if it had not been open to the Tribunal on the evidence before it to be satisfied beyond reasonable doubt that there was no nexus between the deceased's war service and his death.

We would dismiss the appeal with costs.