The Repatriation Commission v Hughes, S.M
[1990] FCA 629
•8 Nov 1990
629 , 9 0 -
JUDGMENT No. ........ -...... .--....--
ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal - Tribunal addressed
only part of the issue to be determined - whether error of law
VETERANS AFFAIRS - veteran died from carcinoma caused by smoking - whether veteran's
smoking habit attributable to his war service.
. .
1975 (Cth) - s 44
Vetcrana' 1986 (Cth) - ss.8, 120
AUSTRAUA
T v. - HU-
G 114 of 1990
Davies J.
8 November 1990 RECEIVED Sydney I -
13 NOV 1990
FEDERAL COURT Of
)
) No. G114 of 1990 ) from the Veterans' Appeals Division
of the Administrative Appeals Tribunal
BETWEEN:
Applicant
m:
Respondent
CQLiUI: Davies l. &&: 8 November 1990 l!kS: Sydney
The decision under appeal be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence. l!s?u: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rulea.
)
1 No. G114 of 1990
from the Veterans' Appeals Division
of the Administrative Appeals Tribunal
Applicant
Respondent
Davies 1.
8 November 1990
Sydney
This is an appeal from a decis~on of the Administrative Appeals Tribunal which
held that the death of Russell Robinson Hughes was war-caused for the purposes of t h e w 1986 (Cth).
An appeal from the Administrative Appeals Tribunal is, under s.44 of the
. . . . l975 (Cth), limlted to a question of law. Three errors of
law have been proposed. It is said that the Tribunal posed the wrong question to be answered, or more strictly that it posed as the question to be answered only a part of that question; secondly, that the Tribunal stated no reasons in relation to that part of the issue which it did not discuss; and thirdly, that in relation to that part of the issue which the Tr~bunal did not discuss,
there was no evidence to justify the Tribunal's finding.
In its reasons for decision, the Tribunal made no reference to the statutory
provisions which governed the substantive right to a pension or to the standard of satisfaction
which the Tribunal was required to reach. Moreover, the Tribunal did not fully state or appear to consider the substantive issue before the Tribunal for, accepting that Mr Hughes' smoking habit had contributed to his death from carcmoma, it did not discuss whether his smoking habit
was attributable to his war service, merely whether it developed before or during his war service.
It is, of course, an error of law for a tribunal to pose and answer the wrong
question, or only a part of the criterion of which the legislation requires satisfaction. Moreover.
it is an error of law for a tribunal, which is bound to state in writlng its reasons for its decision,
to fail to deal with the substantive issues upon which the decision turned and to state its findings and the reasons therefor. S e e m v.- (1990) 95 A.L.R. 451 and the authorities therein
. . . .
referred to. See also v. a (Pincus J., 29 September 1989,
unreported). Judicial review is concerned not with the merits of decision-making but with the
structure of decision-making. In Board v. [1911] A.C. 179 at p.182, ~ o r d
Loreburn L.C. described the duty "to listen fairly to both sides" as "a duty lylng upon every one
who decides anything". Procedural fairness, as described in v. m (1985) 159 C.L.R. 550
is one aspect of this. The requirement that a decision-maker take into account material
considerations and only material considerations and not make a decision to which no reasonable
The giving of reasons by a tribunal whicb disclose that the tribunal has listened fairly to both decision-maker would have come in the light of those relevant considerations is another aspect. sides in the sense of considering the substantive Issues to be resolved in the ligbt of material
considerations is another aspect. That is the structure in which decision-making operates.
These principles should not be applied technically or rigidly. Regard must be had
to the needs of efficient decision-making. In m v. at p.455, it was said:-
'The duty must be senaibly interpreted and applied with a view to achieving good
and effective administration."
Adequate reasons are those which refer to the evidence and disclose the substantial findings and
the substance of the reasons for those findings. They need not be lengthy unles the case so requires but they should enable a court to determine whether or not a reviewable error occurred.
Mr Hughes died on 24 November 1976 from carcinoma of the pancreas. His
widow's claim for a pension was reconsidered by a delegate of the Repatriation Commission on 9 October 1986 and it was that decision which was the subject of the decision of the Administrative Appeals Tribunal on 13 February 1990. The matter therefore came to be
P .
considered under the 1986 (Cth) of whlch s.8 provrded, inter a1ia:-
%(l) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if -
(a)
the death of the veteran arose out of, or was attrrbutable to, any eligible war service rendered by the veteran;"
The words "arose out of, or was attributable to" are satisfied if there was a causal connection
between the war service and the death such that the war service contributed in a material way
to the circumstance from which death resulted. It is sufficient for present purposes to refer to
. . . .
my discussion in v. (1989) 10 A.A.R. 323; 18 A.L.D. 144. See
. . . .
also v. J&y (1980) 31 A.L.R. 140 at pp.150-1. As to that part of Mr Hughes' war service which was operational service in the
north of Australia, the standard of proof was that provided for in s.lZO(1) and (3) of the Act
which read:-"120.(1) Where a claim under Part I1 for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or
that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(3) In applying sub-section (1) or (2) in respect of the ~ncapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining -
(a) that the injury was a war-caused injury or a defence-caused injury; (b)
that the disease was a war-caused d~sease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused,
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
As to the remainder of Mr Hughes' war service, the standard of proof was that specified by
"(4) Except in making a determination to which sub-section (1) or (2) applies, the Commission shall, in making any determination or dec~sion m respect of a matter arising under this Act or the regulations, including the assessment or re- assessment of the rate of a pension granted under Part I1 or Part IV, decide the matter to its reasonable aatisfaction.".
on 9 May 1945, Mr Hughes served in the areas in Australia which constituted war service for the Mr Hughes enlisted in the R.A.A.F. on 29 May 1941. For most of the period until his discharge
purposes of the Act but not operational service. From 24 July 1942 to 29 August 1943, Mr Hughes was stationed in Darwin and his service during that period was operational service as defined by s.ci(l)(b) of the Act.
Prior to his enlistment, Mr Hughes was an active healthy man and played A-grade
badminton. Early in his war service, in the second half of 1941, Mr Hughes suffered loss of
weight, loss of appetite and persistent colds. An X-ray disclosed a general increase of lung
markinga. In the following years, these symptoms recurred from time to time and worsened. Finally, Mr Hughes was discharged as medically unfit in May 1945. Subsequently, his conditions
of asthma and emphysema were accepted as attributable to war service.
The Tribunal accepted that, prior to enlistment in the R.A.A.F. in 1941, Mr
Hughes was a non-smoker or not a regular smoker and lived with his family in a house in which
which smoking did not occur, as alcohol and tobacco were not permitted by the mother. Mr Hughes became a regular smoker during the period of his war service. The Tribunal found that
"the veteran had developed a smoking habit at least prior to his discharge from the R.A.A.F. in May 1945. Firm evidence was given by his widow, the applicant, that he was a smoker when she
first met him in 1944." There was no direct evidence as to when or in what circumstances Mr
Hughes acquired the smoking habit during his war servlce.
The Tribunal did not itself analyse what were the issues to be resolved but appears
to have dealt with the matter solely on the basis presented by the representatives for the parties, particularly the representative for the Commission. Page 45 of the transcript discloses this
"So the only question is whether the smoking was a habit which he acquired
-during war service; is that right? The only real question, the only real issue; is that right7 MR PALMA (for the Commission): Well, Mr Hill has not canvassed the other issue that is raised by Professor Coomb ..."
At p.46, the representative for the Commission referred to "reasonable hypothesis" and on p.47
of the transcript there appears this passage:-
"MR PALMA: Of course, the only question left open now is the influence of the
war service on the veterans smoking habit.
HON. MR PERRIGNON: You say that is the only question; the only real issue
in the appeal.
MR PALMA: Yes.HON. MR PERRIGNON: Is that right?
MR PALMA: That is right. I think that the other part of i t can be ruled out. It is only a theoretical consideration at this stage and it can be totally ruled out, and that is the only issue left open. And I would say that the paucity in the evidence leaves it open for the tribunal to find that the veteran commenced smoking before service m d there is no evidence of what actually happened on service in regard to his smoking habit, and then from the late 40s to 1969 the evidence from Mrs Hughes is that he was smoking two ounces of tobacco a week, and two ounces, I guess, depending on how you roll cigarettes, can be anywhere from 50 to 100 cigarettes a week, and that did not change.
So, there is a gap in the evidence, and my submission is that it is open to the tribunal to say that the smoking habit commenced prior to service."
On this basis, the Tribunal posed the question for decision in these terms:-
"Therefore, the only issue between the parties was whether he
developed his smoking habit before or after his enlistment.
Had the provisions as to standard of proof been those applicable to operational service, that is,
as specified in s.lZO(1) and (3) of the Act, I would have thought that this was a sufficient description of the issue. Before the Tribunal, the representative for the Commission referred to
"reasonable hypothesis" and inferred that the issue was to be considered under the terms of s.lZO(1) and (3). That was also the way the matter was put in this appeal by senior counsel for the Commission.
The evidence was strong that the smoking habit which Mr Hughes had developed
contributed to the carcinoma of the pancreas. Therefore, the question was as to whether the conditions of war service contributed in a causal way to the development of that habit. It seems to me that clearly there was a reasonable hypothesis. Senior counsel pointed to my own
. . . .
discussion in v. (1989) 11 A.A.R. 131 and submitted that the
hypothesis must be one founded on or pointed to by the facts. But if a serviceman commences
smoking during war service, then a hypothesis will readily arise that the development of the
smoking habit was causally related to the war service. The connection will be pointed to by the facta of the particular serviceman's case. Proof as to precisely how and in what circumstances
smoking commenced and was continued is not required. A reasonable hypothesis is sufficient. Whether the causal connection exists is then tested under the prov~sions of s.lZO(1) which requires, in the case of operational service, that the facts be found in the veteran's favour unless the contrary is established beyond reasonable doubt. The present is at least as favourable a case
. . . .
for the claimant in that respect as was the case considered in v. (1980) 29 A.L.R. 64; (1980) 31 A.L.R. 140; and (1981) 147 C.L.R. 635; in which it was held that
the Tribunal could not properly be satisfied beyond a reasonable doubt that there were
insufficient grounds for granting the claim.
It seems to me that it was not seriously arguable that the provisions of s.120(1) and
(3) were not satisfied in the present case. I reject the "no evidence" submission put by senior
counsel for the Repatriation Commission. Notwithstanding that the reasons of the Tribunal did not expressly deal in full with the connection between Mr Hughes' smok~ng habit and his war service, I would conclude, if the case was governed by s.120(1) and (3), that the Tribunal addressed itself properly to the only question seriously in issue.
However, after reserving my decision in this matter, I ascertained from a perusal
of the appeal book that Mr Hughes had operational service only between 24 July 1942 to 29 August 1943. The evidence did not show whether Mr Hughes' smoking habit commenced during
that period or whether he took up smoking before moving to the operational area or after he had returned from it. There was no direct evidence with respect to this matter. It was not discussed
3
by the Tribunal, the only relevant finding of the Tribunal being that Mr Hughes had a smoking
habit by 1944.
Insofar as the war service other than operational service had a connection with
Mr Hughea' smoking habit, the standard of proof applicable was that stated in s.120(4), namely
. .
"reaaonable satisfaction". In these circumstances, the case is similar to that of
. .
Commrsslon v. Kcenan in which Pincus J. set aside a decision of the Administrative Appeals Tribunal and sent the matter back for rehearing because, the temporal relationship only having
been discussed by the Tribunal in its reasons, the Tribunal had erred in law in not dealing with
the entire issue which it wen required to consider. In the present case, as in Keenan's, although the Commisdon's representative did not specifically discuss the entire issue and, indeed, appears to have misled the Tribunal by failing to do so, nevertheless, the representative did not concede that Mr Hughes' smoking habit was causally connected with his war service even should the Tribunal find that the smoking habit developed during the time of the war service.
In the present case, therefore, I am of the view that the Tribunal expressed the
wrong issue, or more correctly, only a part of the issue to be determined, and failed to give reasons causally connecting Mr Hughes' smoking habit w ~ t h his war servlce. The presence of error in the present case is confirmed by the fact that the Tribunal did not make f~ndings as to whether the smoking habit commenced during Mr Hughes' operational service or at some other time and failed to discuss whether it was applying the standard of proof set out in s.lZO(1) and *
(3) or that specified in s.120(4).
Unlike a court of law, the Administrative Appeals Tribunal is
under a duty to deal, not with the issues as presented by the parties, but with the issues which
the legislation raises on the facts and circumstances of the case.
I send the matter back for rehearing with some regret. The facts of the present
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case differ little from those favourably determined to a claimant i - n
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Commlsslon (unreported, delivered 30 November 1987, Dr A.P. Renouf, Mr T.R. Russell, Dr.
M.E.C. Thorpe). The Tribunal in that case said:-
"Given that the commencement of the smoking of cigarettes by Mr Marshall at least to the level abovementioned was during service, given his likely abstinence from the practice prior to enlistment, given that he was then relieved of the anti-smoking family pressure, given that this was replaced by peer-pressure in the opposite sense, given that Mr Marshal1 spent much of his service life driving long distances, given that tobacco was readily and cheaply available to servicemen, given that the dangers of smoking were then unknown, a reasonable hypothesis of cause arises. In our view, the connection between smoking and service was more than temporal or circumstantial; it was also of a causal nature."
Two members of that Tribunal were also members of the Tribunal in the present case and no
doubt had in mind similar considerations. But they did not express them. The present may be
an even stronger case than Re for Mr Hughes suffered a good deal of ill health throughout his war service and thereafter as a result of the condit~on of his lungs and chest which was accepted as being attributable to war service. His widow alleged that he "suffered depression and stress at his poor health condition and having to take less paying jobs at work". If his ill health contributed to induce Mr Hughes to take up smoking or to continue smoking during or
after the war that would be another matter to be taken into account in favour of the claim. I make no suggestion as to the proper finding to be made. The facts will be for the Tribunal on the rehearing.
For the reasons I have given, the decision under appeal will be set aside and the
matter will be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence. In these circumstances, counsel for the Repatriation Commission did not seek costs.
I certify that this and the preceding 8 pages are a true copy of the reasons for judgment of the Honourable Mr Justice Davies.
Associate: LJ.dbh-
Date 8 November 1990 v
Counsel for the applicant: Mr G.K. Downes Q.C. &
Miss R.M. HendersonSolicitor for the applicant: Australian Government Solicitor Counsel for the respondent: Mr J.P. Hamilton Q.C. & Mr A.L. H111 & Mr A.J. Clout Solicitor for the respondents: Mr Kenneth Harrison Date of hearing: 25 October 1990 Date of judgment: 8 November 1990
IN T H E FEDERAL COURT O F AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY G E N E R A L DIVISION
)
On aooedl from the Velerdns' Appeals D ~ v i s ~ o n
o f the Admin~st ra t~ve Appeals Trlbundl
BETWEEN THE REPATRIATION COMMISSION Applicant
AND STELLA MARGARET HUGHES Respondent
U: Davies J his. 8 November 1990 .€!h!Z: Sydney
CORRIGENDUM
The reasons for judgment of Dav~cs J. delivered on 8 November 1990 have been w~thdrawn and an alternative judgment will be issued shortly.
V
Helen Macfarlane
Assoclate to Mr Jus t~ce Davies 22 November 1990
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