Suckling v Repatriation Commission (No.1)
[2004] FMCA 193
•8 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUCKLING v REPATRIATION COMMISSION (No.1) | [2004] FMCA 193 |
| ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – Veterans Entitlements Act 1975 – widow’s entitlement – small cell carcinoma of the prostate – whether carcinoma spread from lungs – smoking – whether death related to service. |
Veterans Entitlements Act 1986, ss.8, 8(1)(a), 8(1)(b),13(1), 119, 120A, 120A(3), 120(1), 120(3)
Administrative Appeals Tribunal Act 1975, s.44
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Hancock (2003) FCA 711
Waterford v Commonwealth (1987) 163 CLR 54
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Roscoe v Repatriation Commission (2003) FCA 1568 (23 December 2003)
| Applicant: | THELMA GLADYS SUCKLING |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MZ 1168 of 2003 |
| Delivered on: | 8 April 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 25 February 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr D De Marchi |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Ms A McMahon |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application shall be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1168 of 2003
| THELMA GLADYS SUCKLING |
Applicant
and
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
In this application the applicant seeks to appeal from a decision of the Administrative Appeals Tribunal (the AAT) delivered on 3 September 2003 in relation to a claim by the applicant made on 21 September 2000 for a war widow's pension pursuant to s.13(1) of the Veterans Entitlements Act 1986 (the VE Act).
The AAT had affirmed a decision under review made by the respondent on 17 November 2000. The effect of the decision under review was to refuse the applicant a war widow's pension on the basis that the death of the veteran (Leonard Suckling) was not related to service. The appeal before this court is based upon what is said to be an error of law arising pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The notice of the appeal relies upon a number of grounds which may usefully be set out as follows:-
“4.1 The Tribunal was wrong in law in limiting the examination of the Statement of Principles (SoP) to SoP No. 84 of 1999 as amended by No. 69 of 2002 concerning Malignant Neoplasm of Prostate and the way it applied the SoP.
4.2 The Tribunal was wrong in law in preferring the evidence of Professor Fox when a hypothesis which was patently reasonable was put forward by an eminent pathologist Dr Collins.
4.3 The Tribunal was wrong in law in its application of the principles laid down in the Federal Court decision of the Repatriation Commission & Deledio (1998) 83 FCR 82.
4.4 The Tribunal was wrong in law in applying in the circumstances of the Applicant the decision of Repatriation Commission v Hancock (2003) FCA 711.
4.5 The Tribunal was wrong in law in its application of ss.8(1), 120(1)(3) and 120A of the Veterans’ Entitlement Act (1986).
4.6 The Tribunal was wrong in law in failing to provide adequate and sufficient reasons for its decision.”
Background
The application in the present case involved consideration of what might be described as a threshold issue, namely, the cause of death of the deceased veteran. The applicant had argued before the AAT that effectively the cause of death based upon the medical evidence, primarily the evidence of Dr Collins, should be found to have been identified by the AAT as lung cancer which had then spread to the prostate. The respondent had argued and the AAT accepted that the cause of death was small cell carcinoma of the prostate and in the circumstances, having found that it was highly malignant, further went on to find that there will be other concurrent metastatic disease in other parts of the body.
The applicant, as the widow of the veteran, had argued through her counsel before the AAT that in the circumstances the cause of death was one which would attract the payment of a pension.
For the present purposes it is sufficient to note that the veteran was born on 31 July 1920. He enlisted in the Australian Army on 10 October 1941 and served in New Guinea in Bouganville. He was discharged on 29 May 1946. There is no doubt that pursuant to the appropriate provisions of the VE Act, the period of service constitutes what is described as operational service. The veteran died on 1 May 2000. The death certificate which forms part of the appeal documents refers to the cause of death as being, "metastatic small cell prostate cancer – five months".
Legislative framework
It is not in dispute that s.8 of the VE Act prescribes the circumstances in which a veteran's death shall be taken to be war‑caused, including where the death resulted from an occurrence during operational service or arose out of or was attributable to the veteran's war service (see s.8(1)(a) and (b)). The issue of whether the death was war-caused within s.8 of the VE Act is to be determined by applying s.120(1) and (3) to the claim. The application of the sections has been previously referred to by the High Court in the decision of Byrnes v Repatriation Commission (1993) 177 CLR 564 where the court states at 571 the following:-
“The position may be summarized as follows:
(1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or tenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established, sub-s.(1) of s. 120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
In the present application, given that the claim was lodged by the applicant as a result of the veteran's death after the date of death, it is clear that the application of s.120(1) and (3) is affected by s.120A of the VE Act. Section 120A(3) of the VE Act provides that a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP that upholds the hypothesis. The conclusion directed by s.120A(3) that the hypothesis is not reasonable because it is not upheld by the relevant SoP would oblige the decision-maker to reach a negative decision under s.120(3). A decision-maker would then be required by s.120(3) to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury, disease or death is war cased. That conclusion would lead to the decision under s.120(1) that the injury, disease or death is not war-caused.
Both parties referred to the decision of the Full Court in the Federal Court in the matter of Repatriation Commission v Deledio (1998) 83 FCR 82 (Deleido) where the court states at page 87 the following:-
“At the risk of being repetitious we would re-state the course which the Tribunal is to take in a case, such as the present, (that is one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service [as required by ss 196B(2)(d) and (e)]. If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
The court was also referred to a number of other decisions during the course of submissions which relate to the issue of standard of proof and burden of proof in applications of this type.
Submissions
It was submitted on behalf of the applicant in written submissions filed on 23 February 2004 that in the circumstances a key criticism of the AAT decision arising from the grounds of appeal related to the crucial finding that the cause of death was the cause of death referred to in the AAT's decision, namely, small cell carcinoma of the prostate. Had it not been for that finding, then another SoP would have been referred to and it was submitted that in all the circumstances, having regard to background information, including evidence that the veteran had commenced smoking during the period of service, that the applicant would have been entitled to a pension.
It was argued on behalf of the applicant that in the circumstances the AAT should have found, consistent with the evidence of Dr Collins, that it was a reasonable hypothesis that a radiological abnormality disclosed in the lungs could be found to be the primary lesion which subsequently metastasized to the prostate, causing death. In those circumstances, having found that to be the cause of death, then as I understand the submissions made on behalf of the applicant, the AAT would then be required to examine the relevant SoP, namely, SoP 35 of 2001 which relates to malignant neoplasm of the lung. It is claimed that that course of action was required by the beneficial nature of the legislation including s.119 in a case where the veteran had died. It was submitted the failure to identify the need to examine this particular SoP was an error of law that deprived the applicant of a vehicle "to prove her claim".
It was further submitted that the AAT was wrong in law in preferring the evidence of Professor Fox when a hypothesis which was "patently reasonable" was put forward by an eminent pathologist Dr Collins and should not have been rejected by the AAT on the basis of preferring the evidence of Professor Fox without rejecting Dr Collins' evidence "beyond reasonable doubt". Reliance was placed upon the decision of Bushell v Repatriation Commission (1992) 175 CLR 408 at 414:
“… So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists
…
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature” (13). Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”(14).
But leaving aside cases of those kinds, the cause must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s.120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s.120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of the veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.
If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s. 120(1). That is to say, the Commission must determine that the injury, disease or death was war caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The use of the terms “the material” and “raise” strongly suggests that sub-s.(3) is not concerned with the proof or satisfaction of a claim but whether there is some “material” which calls for a determination under s.120(1). The phrase “[I]n applying subsection (1) or (2)” (emphasis added) in s. 120(3) also suggests that s. 120(1) is the governing provision.”
During the course of oral submissions reference was further made to the omission from the tribunal's findings of the cause of death of the word which appears in the death certificate, namely, "metastatic".
During the course of submissions, both in writing and before the court, the applicant's representative had argued that the AAT had failed to consider the first step set out in Deledio and was wrong at that stage to prefer the evidence of Professor Fox to that of Dr Collins. It was submitted there was ample evidence of a lesion in the lungs. It was further submitted, and reference was made to material in the appeal book, that Dr Collins had noted primary malignancies of the lung metastasized widely throughout the body and secondary spread to the prostate had been documented in the literature. It is perhaps noteworthy at this point to refer specifically to what the medical expert had said in his report. In his medical report Dr Collins stated the following:-
“It should also be noted that primary malignancies of the lungs metastasized widely throughout the body and although haematogenous spread to the prostate should be regarded as rare, the metastatic involvement of this gland from a primary lesion in the lung has been documented in the literature.”
(Report dated 6 September 2002, appeal book page 95)
In a subsequent report dated 25 July 2003 (appeal book page 98) the doctor states,
“2It is conceded that the clinical history, as evidenced by the late veteran, could be regarded as consistent with a prostatic lesion. However, I still hold the view it cannot reasonably be excluded, based on the presently available clinical pathological, X‑ray and histological information, that the malignant small cell infiltrate in the prostate was not a primary lesion but a secondary deposit originating from the lung.”
The applicant's representative submitted that there had been a failure to follow the four-step process set out in Deledio and submitted that the AAT did not identify whether the material pointed to a hypothesis connecting the death with the disease in the circumstances of the veteran. If it had done so, it was submitted it would have found there was a hypothesis raised by Dr Collins.
It was further submitted that the AAT was wrong in law in applying in the circumstances of the applicant the decision of Repatriation Commission v Hancock (2003) FCA 711 (Hancock). That case, it was submitted, could be distinguished on its facts which were quite different to the applicant's case. If Hancock was applied as a principle, then it was submitted it was wrongly applied because in that case there was no issue as to the cause of death. The cause of death in the present case was clearly metastasized cancer of the prostate as identified in the death certificate. It was argued that the search in the evidence should have been for the primary site of the cancer and this relies upon a reasonable hypothesis. Both experts, it was argued, had agreed that the ultimate cause of death was the disseminated nature of the cancer, with the point of disagreement being the exact location of the primary tumour. It was submitted therefore that the opinion of Dr Collins was just as substantial as that of Professor Fox and should not have been rejected at the particular stage of examination by the AAT.
It was otherwise argued the AAT was wrong in its application of ss.8(1), 120(1) and (3) and 120A of the VE Act. It was submitted the AAT only examined Part 8(1) of that Act and did not apply s.120(1), (3) and had misapplied s.120A.
Criticism was made of the AAT's finding that there was no evidence that would lead it to conclude that lung cancer was the medical cause of death on the basis that there is no need for evidence as long as the material pointed to a hypothesis that lung cancer caused the death. In those circumstances it was submitted the AAT was bound to investigate it and satisfy step 1 of Deledio and then apply the SoP for lung cancer.
Although it was argued in the written submissions in brief form that the AAT was wrong in law in failing to provide adequate and sufficient reasons for its decision, no further details were provided in support of that submission or ground of appeal at the hearing.
Respondent's submissions
Essentially the respondent submitted that the application is misconceived. It was submitted there is no requirement in determining the cause of death for the AAT to commence its inquiry with a consideration of step 1 of Deledio. The requirement of the AAT in matters of this kind, it was submitted, is to make a finding in relation to the cause of death. In making that finding, it was submitted that the AAT in establishing the cause of death is not required to consider at that point the appropriate statement of principles, rather it has to make a finding of the cause of death. It was submitted that such a finding is one of fact for the AAT and in the circumstances, on an appeal of this kind, there has to be demonstrated to this court that the finding was so perverse that it would constitute an error of law or would otherwise attract the principles which have been set out in well-known authorities concerning what may constitute an error of law for the purposes of s.44 of the AAT Act. Specific reference was made to the decisions of Waterford v Commonwealth (1987) 163 CLR 54 at 77 and the decision of Brennan J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.
It was submitted in the present case, applying those authorities, that the AAT made a finding of fact that the cause of the veteran's death was metastatic small cell cancer of the prostate and it made that finding of fact to its reasonable satisfaction after consideration of all the material before it. Reference was made to the AAT's decision where it did not find on the balance of probabilities that the primary site of the small cell cancer was the lung and where it further stated that there was no evidence that would lead it to conclude that lung cancer was a medical cause of death.
To understand the reasoning of the tribunal, it is relevant to set out the evidence which had been summarised by the AAT in its reasons as follows:-
“8. In a written report dated 6 September 2002 (Exhibit A1), Dr R. Collins, consultant forensic pathologist, said that he had reviewed the medical records and had examined microscope slides prepared after prostatectomy surgery conducted in May 2000. He stated that the material showed an extensive small cell carcinoma of the prostate, but noted that at the time the veteran presented with obstructive urinary symptoms in January 2000, x-ray investigations showed lesions in the lungs, liver, skeletal system and possibly the spleen. Dr Collins stated:
...
Although there was no histological confirmation it was, not unreasonably, postulated that these lesions were all secondary deposits (metastases) from a primary located in the prostate gland. However, in my view, it could not be reasonably excluded, on sound pathological grounds, that one of the areas of abnormality in the lungs identified on chest X-ray was, in fact, not a secondary deposit, but rather a primary lesion.
...
It should also be noted that primary malignancies of the lungs metastasise widely throughout the body and, although haematogenous spread to the prostate should be regarded as rare, the metastatic involvement of this gland from a primary lesion in the lung has been documented in the literature.
4. Cigarette smoking is an accepted aetiological agent in the generation and progression of lung cancer, particularly small cell carcinoma. If it is believed that the late veteran's smoking habit was as a consequence of his experiences during the war, then it is my firm opinion that a reasonable hypothesis exists between his service and death, through the link between smoking and primary lung cancer with metastases involving lungs, bones, liver, spleen and prostate.
In a supplementary report dated 25 July 2003 (Exhibit A2), Dr Collins stated:
...
2. It is conceded that the clinical history, as evidenced by the late veteran, could be regarded as consistent with a primary prostatic lesion. However, I still hold the view it cannot reasonably be excluded, based on the presently available clinical, pathological, X-ray and histological information, that the malignant small cell infiltrate in the prostate was not a primary lesion, but a secondary deposit originating from the lung.
9.In oral evidence Dr Collins explained that the lesions found in the lungs could have been the source of the carcinoma of the prostate which led to the death of the veteran. In cross-examination Dr Collins agreed that the spread of a primary cancer from the lung was rare, but stated that it was possible.
10. In a written report dated 10 April 2003 (Exhibit R5), Professor R. Fox, Director, Department of Clinical Haematology and Medical Oncology, The Royal Melbourne Hospital, stated:
...
Given the clinical descriptions by Dr. Reisner and the CT, he undoubtedly had a primary carcinoma of the prostate gland of a small cell carcinoma type...It classically is extremely malignant and usually patients present with concurrent metastatic disease. It has nothing to do with small cell carcinoma of the lung.
...There was no evidence on radiology of a primary carcinoma of the lung, i.e a small cell carcinoma of the lung. He had multiple secondaries, but this is consistent obviously with metastatic spread from his primary carcinoma of the prostate of small cell type.
...
While in theory it is possible that metastases could come to the prostate, however, the clinical features described by Dr. Reisner and the CT scan are of a primary lesion in the prostate that has dramatically and significantly progressed.
Professor Fox told the Tribunal that he did not agree with the reports from Dr Collins, whom, he stated, had not noted the classic descriptions in the literature. He said that Dr Collins's report was not based on clinical experience of a primary small cell carcinoma of the prostate. He stated that Dr Collins had avoided an evidence-based approach, and he described Dr Collins's hypothesis as fanciful. In cross-examination Professor Fox stated that, after searching the literature, he had not been able to locate any examples of lung cancer metastasising to the prostate, and that smoking was not related to carcinoma of the prostate.
11. In a report dated 28 January 2000 (Exhibit R3), Mr G.. Reisner, urologist, stated that the veteran suffered from a classic carcinoma of the prostate with the exception of the considerable extent of spread to the groin and to other areas demonstrated on the computed tomography (CT) scan.”
After considering that material, the AAT in its findings and consideration of the issues relevantly states the following:-
“24.The Tribunal prefers the evidence of Professor Fox, who has had long clinical experience. His findings that there was no radiology of primary carcinoma of the lung were supported by the clinical notes from various practitioners and the medical history of obstructive urinary symptoms suffered by the veteran. The Tribunal accepts his evidence that, although relatively rare, primary small cell carcinoma of the prostate is highly malignant, with sufferers often experiencing concurrent metastatic disease in other parts of the body.
25. For these reasons, the Tribunal is reasonably satisfied that the kind of death suffered by the veteran was small cell carcinoma of the prostate, identified in SoP N° 84 of 1999 (as amended by N° 69 of 2002) concerning malignant neoplasm of the prostate.
26. As there is an SoP in force, the Tribunal is required to apply the methodology in Deledio to the kind of death. Factors 5(a) to (d) of SoP N°84 of 1999 state:
(a) spraying or decanting a herbicide containing 2,4-dichloro-phenoxyacetic acid (2,4-D) or 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), in circumstances likely to result in inhalation or absorption of the herbicide, at least five years before the clinical onset of malignant neoplasm of the prostate; or
(b) being on land in Vietnam or at sea in Vietnamese waters, for at least 30 days, at least five years before the clinical onset of malignant neoplasm of the prostate; or
(c) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or
(d) inability to obtain appropriate clinical management for malignant neoplasm of the prostate.
Step 3 in Deledio requires that an opinion be formed as to whether the hypothesis is reasonable. That is, whether there is material supporting or pointing to the hypothesis connecting the veteran's death with the circumstances of the service rendered by him. If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable. Factor 5(c) had been the basis of the claim before the VRB and was not pursued before the Tribunal, and no evidence was presented concerning the other factors. Overall, there is no material or evidence pointing to the veteran meeting any of the relevant factors in the SoP, and therefore the hypothesis is deemed not to be a reasonable hypothesis, as it is not consistent with the template.
27. Similarly, there was no evidence that would lead the Tribunal to conclude that lung cancer was a medical cause of death (or kind of death) (Hancock). Therefore, the claim must fail.”
It was submitted on behalf of the respondent that in the circumstances the AAT had made findings of fact reasonably open on the evidence before it and that a finding of fact would be reviewable if it is perverse, that is, if there was no probative evidence to support it, and that inference would be reviewable if it was not reasonably open on the facts (see Australian Broadcasting v Bond (1990) 170 CLR 321 at 359‑360).
Once having found the cause of death, it was submitted, and I accept, that it is then the responsibility of the AAT to then consider whether the material arose as a hypothesis connecting the death with the circumstances of service rendered by the veteran.
Although submissions were made concerning the hypothesis and the appropriate SoP to be applied, it transpired during the course of submissions that the real issue in this matter was the finding of the cause of death. There could be little doubt that having found the cause of death to be related to the prostate cancer, that the relevant SoP was applied. A real complaint of the applicant was that the finding of death was incorrect.
Reference was made by the respondent to specific evidence in the appeal book which was before the AAT which provided what was submitted to be evidence of a kind which would support the conclusion that the decision made by the AAT, that is, its findings of fact, were findings reasonably open to it. Specifically, the court was referred to evidence which included medical evidence relating to the surgery of the veteran where it was stated in a departmental certificate relating to the cause of death the following:-
“Len was operated on at the Repat Hospital for prostate cancer. He told me that they were unable to remove all of the cancer. The cancer (prostate) regrew, travelling to the bladder, bone and liver.”
(Appeal book page 40)
Reference was made to the death certificate which has already been recited in this decision and further reference was made to a certificate from Dr Soccio (appeal book page 57) where reference is made again to the prostate condition. There were other references throughout the material including a medical report from an oncologist, Mr Jeremy Shapiro, which states that:-
“The cancer was an unusual variant of prostate cancer (small cell carcinoma) that spread widely and had grown rapidly in the weeks prior to his death. His death was entirely consistent with advanced prostate cancer.”
Other references to material were referred to by counsel for the respondent including references to specialist opinion from those treating the veteran in hospital. It is not necessary to recite all of those references, save to say that there are a number of references which refer to the same condition and otherwise describe it in a similar manner.
It was submitted by the respondent that by way of contrast the evidence of Dr Collins, which has been recited in the extract from the AAT’s reasons earlier in this judgment, raised no more than a possibility that the primary site of the cancer was the lung. Specifically it is noted that in the evidence there was reference by Dr Collins to the view that he could not reasonably exclude the proposition that the cancer originated from the lung and then spread to the prostate.
It should also be stated in passing that there was some dispute about the extent to which the AAT was correct in its reference to the evidence concerning whether there is any literature which may support the proposition that cancer of this kind may spread from the lung to the prostate. It seems to me that at least on one reading of the material, Professor Fox who gave evidence confirmed that he had searched literature and had not been able to locate any examples of lung cancer metastasizing to the prostate, though it is noted that in his evidence he did qualify that statement to some extent where in his evidence he stated the following:-
“While I'm sure that it may be documented in autopsy literature, what I'm saying is I haven't actually read those.”
Further in his evidence he states, "It could be recorded in the literature at autopsy," and he further goes on when asked, "It is impossible, is it, professor, nowadays to be up to date with every possible ‑ ‑ ‑?" to state, "Absolutely, except one can do very good computer searches and I didn't find anything very much."
Both parties had made brief submissions in relation to the issue of the literature, with the applicant earlier submitting that the AAT had erred in its finding and/or reliance upon the lack of literature, leading it to then in part at least prefer the evidence of Professor Fox over that of Dr Collins. The respondent on the other hand submitted that it was part of the factual matrix and, as I understood the submissions generally by the respondent, it was submitted that the material when looked at properly was material which would provide a basis upon which the AAT could properly reach its decision. It should not be then impugned in the present proceedings.
Reasoning
In my view the application is misconceived. The issue of the standard of proof and the task which must be undertaken by the AAT is clear. It must first determine the cause of death. It can do that on the material available to it and is required to do that by applying the standard of its reasonable satisfaction. On my reading of the material, the AAT has properly considered all the evidence, including the evidence of Dr Collins. It was open to the tribunal to find with reasonable satisfaction that it preferred in the circumstances the evidence of Professor Fox and to do so in circumstances where it was also able to rely upon the other material to which brief reference has been made, including the lack of radiology of primary carcinoma of the lung, the clinical notes from a number of practitioners and the medical history of obstructive urinary symptoms suffered by the veteran. In those circumstances, in my view, it is incorrect to then find that the tribunal has erred in law by failing to consider the appropriate SoP or by otherwise failing to explore, if indeed it be the case, the appropriate steps set out in Deledio.
Counsel for the respondent had referred the court to the decision of the Federal Court in Roscoe v Repatriation Commission (2003) FCA 1568 (23 December 2003) and in particular the following paragraphs:-
“40 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.
41 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.”
It was submitted by counsel for the respondent that Roscoe's case is very similar to the present case. I do note in passing that in Roscoe's case the court refers to the fundamental question before the AAT as being a question between the applicant's war service and his death. It is further noted that in connecting his war service through his smoking habit acquired during service, the court refers to the connection depending upon the proposition that the primary cancer was in the lungs and resulted from smoking. I accept that there are similarities between that case and the present case. In my view the law set out in that case in the passages to which I have referred apply equally to the present case.
I accept that in the present case the primary duty of the AAT has been discharged in that it has made a finding as to the cause of death. Having made that finding based upon facts available to the Tribunal and in circumstances where I am able to conclude that such a finding was reasonably open, I cannot see any basis upon which this court would therefore proceed to make a finding that there has been an error of law of a kind that would attract the operation of s.44 of the AAT Act.
I have considered the other grounds of appeal which in general were agitated before the court and I do not see any proper basis on which it could be claimed that there is an error of law arising from the tribunal's reasoning. In particular I reject the submission that the AAT was wrong in law in applying Hancock. The AAT, in my view, did no more than refer to what I regard as a relevant authority and in relation to the crucial issue in the present case properly considered on the basis of the facts reasonably open to it the cause of death and it was required to undertake an analysis, as it did, of the competing theories and evidence before it as to that cause of death. It was entitled to make the finding it did, that the cause of death was cancer of the prostate.
In all the circumstances it follows therefore that the application should be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 8 April 2004
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