Wallis and Repatriation Commission

[2000] AATA 1060

DECISION AND REASONS FOR DECISION [2000] AATA 1060

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N1999/1704

VETERANS' APPEALS  DIVISION       )        
           Re      PATRICIA  MARY  WALLIS     
  Applicant

And    REPATRIATION  COMMISSION          
  Respondent

DECISION

Tribunal       Senior Member M D Allen

Date1 December 2000

PlaceSydney

Decision      The decision under review is set aside and the Tribunal substitutes its decision, namely that the Applicant, Patricia Mary Wallis, is entitled to pension consequent upon the war-caused death of Patrick Wallis, deceased, as and from 5 February 1997.   

(Sgd)               M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS  -  Whether war-caused drinking habit causative of fatal acute pancreatitis.  Interpretation of Statement of Principles.  Purposive interpretation of statutory instruments.  Whether SoP ultra vires in that it impermissibly dictated what evidence was sufficient to raise hypothesis.

Veterans' Entitlements Act 1986 - ss5AB, 119, 120, 120A and 196B

Repatriation Commission v Deledio 83 FCR 82
Deledio v Repatriation Commission 47 ALD 261
Bushell v Repatriation Commission 175 CLR 408
Byrnes v Repatriation Commission 177 CLR 564
Vietnam Veterans' Affairs of Australia New South Wales Branch Inc v Cohen and Others 70 FCR 419
Vietnam Veterans Association of Australia New South Wales Branch Inc v Specialist Medical Review Council & Ors [1999] NSWsc 403
Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch Inc & Ors 48 NSWLR 548
Repatriation Commission v Hughes 13 AAR 34

REASONS FOR DECISION

1 December 2000   Senior Member M D Allen

1. By application lodged 9 November 1999 the Applicant sought review of a decision of the Respondent, Repatriation Commission, made 27 May 1997 and affirmed by a Veterans' Review Board on 20 September 1999, determining that the death of the Applicant's late husband, Patrick Wallis, was not attributable to his war service.

2. The late Veteran died on 23 December 1982 and it is conceded by the Respondent that the Veteran had operational service as that term is defined in s6A of the Veterans' Entitlements Act 1986 (the VEA) (as amended) and that his death was caused by acute pancreatitis (see Document T9).

3. This matter came on for hearing before me at Sydney on 10 November 2000.  At that hearing the following documents were taken in and marked as exhibits, namely:

   T1 – T16: Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

   Exhibit A1:    Applicant's Statement of Facts and Contentions

   Exhibit A2:    Statement by the Applicant dated 5 April 2000

   Exhibit A3:    Statement by Lindy Skaines dated 5 April 2000

   Exhibit A4:    Report of Dr R Gertler, Psychiatrist, dated 16 May 2000

   Exhibit R1:    Respondent's Amended Statement of Facts and Contentions.

   Exhibit R2:    Report of John Tilbrook, Historian, dated 6 July 2000.

1. As the Deceased had operational service, the Applicant is entitled to the reverse standards of proof provided by subss120(1) and (3) of the VEA, that is to say the Tribunal shall determine that the death of the Deceased was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  The Tribunal will, however, be satisfied beyond reasonable doubt that the death of the Deceased was not war-caused if, after a consideration of the whole of the material before it, it is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the Deceased with the circumstances of the particular service rendered by him.  Subsection 120(6) of the VEA provides that no party to this review bears any onus of proof.

2. As the Applicant's claim was lodged with the Respondent post 1 June 1994, s120A of the VEA provides that a reasonable hypothesis can only exist if it conforms with a so-called Statement of Principles (SoP).

3. The relationship of the various requirements as to standard of proof in claims such as the Applicant's, was set forth by Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82. At p97 the Court said:

   "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).  …

   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."

1. The hypothesis contended for by the Applicant was that due to the circumstances of his service in the Royal Australian Air Force in the South West Pacific area during World War II, the Deceased developed an habituation to drinking alcohol to excess and that his alcohol intake was such that it caused or contributed to his pancreatitis.

2. The Repatriation Medical Authority has issued an SoP regarding acute pancreatitis being Instrument No 45 of 199, as amended by Instrument No 74 of 1998.  Factor 5(b) of the SoP refers to the factors which must exist before death from acute pancreatitis can be attributed to war service and reads:

   "having evidence of prolonged and heavy alcohol consumption before, and continuing at least until, the clinical onset of acute pancreatitis;"

1. In the case of the deceased Veteran, the evidence is that he continued a heavy intake of alcohol until his admission to hospital for what proved to be a terminal illness.

2. The Applicant did not meet the Deceased until he had returned from active service.  However, Document T13 at pages 67 and 68 is a letter from Deceased's sister which was before the Veterans' Review Board.  That letter reads inter alia:

   "My brother entered in the service at the age of 18.
   Before he went into the R.A.A.F he was brought up as a clean living boy, and did not drink.  I noticed when he came home after the war that he was drinking which surprised me.
   Pat was withdrawn and moody and bad tempered, and, did not often speak about what he had gone through during his service.
   …
   Pat wouldn't speak about the war much, and if we asked, he would say we didn't want to know
   I felt while I was at home, he was doing a lot of drinking, much too much for a young fellow.  …"

1. In addition I am aware that until the late 1960's the minimum age in Queensland for entry into licensed premises was 21 years.  I therefore draw the inference that the Deceased would not have been able to purchase alcohol for himself before joining the RAAF at age 18.

2. On 21 April 1997 the Applicant completed an Alcohol Questionnaire in which she stated, in reference to the question "Why did he start drinking alcohol?":

   "he told me his few beers helped him with his nerves, anxiety state, …"

1. Evidence from both the Applicant and her daughter shows that the Deceased was adversely affected by his war service.  In her statement (Exhibit A2) the Applicant states:

   "12.My husband refused to talk about his experiences during service.  It would upset him if he was asked and he would often tell us that he would rather forget and did not want to be remind (sic) about his wartime experiences.

   …

   14.My husband would never go to Anzac dinners or parades.  He would rather go out fishing.  He deliberately avoided events that reminded him of his wartime experiences and would say that he did not want to hear people talking about it.

   15.My husband refused to watch anything on TV that included war scenes.  He would never let our children watch war films.  He would say that it was not necessary and that he did not like it"

2. In Exhibit A3 the Applicant's daughter, Lindy Skaines, states inter alia:

   "2.My father never talked to me about his wartime experiences in the Air Force.  He would brush me off and tell me not to ask.  When I would ask him for information about the War for school projects he would tell me to ask somebody else.

   3.Whilst my father refused to discuss his wartime experiences, I once recall him telling me whilst watching a war program that 'any of the dead bodies that I've seen were never that peaceful'.  My father had a box of 'treasures' which we were never allowed to touch.  After his death, I opened the box and found things that he had collected during the war.  Among the things included, was a photograph of dead bodies that had been taken during his service a copy of which is annexed and marked hereto with the letter 'A'.

   4.My father would always leave town the morning of Anzac Day.  My friends were able to proudly watch their father's march in the Anzac Day Parade, however, my father would take me and the family on a fishing trip.  On these fishing trips, my father was more moody, aggravated and drunk than on normal fishing trips.  He would often get so drunk that he could not stand up.  When I complained to my grandfather (his father) about my father's drinking and behaviour, he said to me that he had not always been this way.

   5.…

   6.My father refused to allow us as children to watch a TV program called 'Combat'.  He would tell us that the show was rubbish and so far from the truth that it was a joke.  One day, I remember our father catching my brother and myself watching this program and he was furious.  His anger seemed so unreasonable to us.  He was white and shaking with rage and ranting.  We remained in trouble with our father for days after this incident.

   7.I often felt guilty about going away to boarding school in the sense that a lot of the time I was pleased to be there away from home life.  It was good to get away from my father's drinking, his moods and silences."

1. That the Deceased was exposed to scenes which he found distressing or caused him stress is corroborated by the report of Mr Tilbrook of 6 July 2000 (Exhibit R2).  Although the Deceased was at Balikpapan as a plant operator and would not have been directly involved in actual combat, at paragraphs 13 and 14 of his report Mr Tilbrook states:

   "13.In summing up, although 6 ACS took no direct part in the actions described in Paragraph 11d, all unit members would have been witness to the intensive naval and artillery bombardments, and aircraft bombing strikes on enemy positions, and would no doubt have heard the sound of combat in the near vicinity of the two airstrips (in the period 5 Jul to 9 Jul 45 following the initial landing of 6 ACS in a hostile environment).

   …

   14.Accepting that the Veteran landed at BALIKPAPAN on 5 Jul 45 as cited in the 6 ACS unit records (discounting his Record of Service entry date which does not correlate with his units movements); and given the very high number of enemy casualties suffered at BALIKPAPAN it is the shared opinion of the Researcher and the RAAF Historical Section that it is highly probable that the Veteran was witness to the devastation of the aftermath of fighting, and thus was witness to numbers of enemy dead."

1. Dealing with the photograph of enemy dead which was in the Deceased's possession, Mr Tilbrook says at paragraphs 19 and 20 of his report:

   "19.The RAAF Historical Section made the point that in some cases after a so called 'Banzai charge' such as those which took place on the nights of 6/7 Jul 45 and 7/8 Jul 45 which saw more than 100 Japanese KIA; the sheer numbers of bodies involved and the decomposition of the corpses in the tropics made it imperative for bulldozers to be used to bury the large numbers of enemy dead expeditiously.  It was not uncommon for official and private photographs to be taken of enemy casualties before they were interred in mass graves.  It is possible that as a PLANT OP the Veteran may have been employed on such a burial task, and was afforded the opportunity of witnessing enemy dead and taking of photographs (or alternatively may have come into possession of photographs taken by another person); noting that there is no record of 6 ACS being involved in disposal of enemy dead at BALIKPAPAN.

   20.In summing up, given that heavy fighting was still in progress around the two airstrips at BALIKPAPAN for the first five days after the landing of 6 ACS, it is possible that the late Veteran did have the opportunity to witness and/or take photographs of dead Japanese battle casualties."

And concludes his report by stating:

"24.Based upon the information assembled in this Report, it is the Researcher's finding that although the late Veteran, LAC Patrick Wallis, was not a participant in the direct combat activities at BALIKPAPAN, he was no doubt a witness to the massive allied bombardments and the aftermath of coastal fighting.  On that basis it is probable that the late Veteran was afforded the opportunity of witnessing numbers of Japanese battle casualties during his first five days ashore at BALIKPAPAN to carry out priority construction work in refurbishing the airstrips and establishing the vital air bridge (noting that 6 ACS was landed on 5 Jul 45 when the vital tactical possession of the SEPINGGANG and MANGGAR airstrips was still being contested by opposing allied and enemy forces)."

1. Dr Gertler, Psychiatrist, in his report of 16 May 2000 (Exhibit A4) to the Applicant's solicitors states inter alia:

   "Following his return to civilian life Mr Wallis tended to be irritable and withdrawn socially.  He was difficult to live with and somewhat insular.  He had few, if any, close friends.  Despite his wife's entreaties that he seek help for his drinking, he refused to do so.  He died in 1982 as a result of complications following what was felt to be acute pancreatitis with a psoas abscess.
   IMPRESSIONS
   Following his discharge from service Mr Wallis apparently drank to excess until his death.  He consumed on average at least 120 mgs of alcohol per day (approximately 40 kgs a year) and easily more than 180 kgs within any 5 year period during that time.
   …
   There is also evidence that Mr Wallis may have suffered from symptoms of chronic post traumatic stress disorder as a result of his wartime experiences.  The evidence for this is that he refused to discuss those experiences, would react adversely to reminders of wartime such as Anzac Day or war movies on television, was generally socially withdrawn, irritable and at times overtly angry, and almost certainly drank alcohol to try and control his symptoms."

1. Although the Applicant stated in cross-examination that Dr Gertler had not interviewed her, the history relied upon by Dr Gertler and the foundations of the bases of his opinions are all to be found in the documents which are available to the Tribunal and were no doubt also put before him.  Suffice it to say that Dr Gertler was not required for cross-examination by the Respondent.

2. Given the evidence outlined above, there is abundant material upon which to raise the hypothesis that the Applicant's prolonged and heavy alcohol consumption was caused or contributed to by his war service.  This is the more so when one considers the remarks of Davies J in Repatriation Commission v Hughes 13 AAR 34. The remarks of His Honour regarding smoking can equally be applied to the initiation of a habit of drinking alcohol. At 13 AAR p38 His Honour said:

   "Counsel went on to submit that it was not known what occurred during Mr Hughes' war service to bring about his smoking habits and submitted that the smoking and the war service may have had a mere temporal connection.  Counsel submitted that there was therefore no evidence pointing to the necessary causal connection.  However, this submission confuses 'hypothesis' with 'evidence'.  The hypothesis is required by s 120(3).  An hypothesis is an unproven theory or supposition.  To be raised by the material as s 120(3) requires, it must be pointed to by the facts.  In a case such as the present, this will occur if evidence is given that the veteran acquired a smoking habit while on war service …"

His Honour then went on to speak of incidents which could lead to the adoption of a habit, namely the lack of family restraints, peer pressure, availability (at least in Australia).  In the case of this Veteran there is, in addition to the factors referred to by His Honour, clear evidence that the Veteran was adversely affected by his war service.  Indeed Dr Gertler goes so far as to opine that he may have had an undiagnosed post traumatic stress disorder which would of course explain his use of alcohol to self medicate.

1. The SoP requires that alcohol consumption be "prolonged and heavy".  The SoP then goes on to define what is prolonged and heavy consumption in the following terms:

   " prolonged and heavy alcohol consumption' means excess alcohol consumption evidenced by medical recognition of such excess, and which is defined as:

   (i)consumption of at least 180kg of alcohol within any five year period; or

   (ii)complications attributable to alcohol abuse, including fractures, falls and/or polyneuritis; or

   (iii)hospitalisation(s) for alcohol-related illness; or

   (iv)at least one admission to a facility for alcohol detoxification;"

2. In Exhibit A2 the Applicant speaks of the Deceased's alcohol consumption as follows:

   "7.Between 1950 until his death in 1982 he would drink two to three large bottles of beer every night, sometimes more, and would consume an entire carton of beer over the weekend.  Sometimes he drank more than these amounts.  There were times when my husband was so inebriated, I had to put him to bed and undress him.  This would happen approximately twice a month

   8.I often warned my husband to stop drinking and he promised that he would but then did not.  He would continue drinking behind my back and I would find out.

   9.My husband tried to give up drinking three to four times but when he did, he was unbearable to live with.  He became argumentative and extremely cranky.

   10.I believe that alcohol consumed my husband's life.  He had to have alcohol wherever he went.  He often refused to go places where he knew alcohol was not going to be present and there were occasions where we could not go to social events as he was too drunk.  If my husband did not have alcohol he would become an extremely irritable and intolerable person.

   11.My husband continued drinking heavily despite the obvious problems it was causing him socially and medically."

1. Mrs Skaines, the daughter of the Applicant and the Deceased, stated (A3):

   "5.My mother would often sleep in the spare bedroom in our house because my father was so drunk and she could not sleep in the same room with him.  I remember that my mother and father used to constantly argue about his drinking, especially when he would have a period of heavy drinking."

Other incidents of the Deceased's drinking have been referred to by Mrs Skaines as outlined in paragraph 14 above.

1. In evidence to the Tribunal the Applicant stated that the Deceased would consume a bottle of rum in half a week in addition to the beer he bought.  A garage business entered into by the Deceased failed as he took money from the till for alcohol.  Even while working on the farm, he would return from working all day on a tractor smelling of alcohol. 

2. As pointed out above, Dr Gertler in his report states that the Deceased consumed more than 180kgs of alcohol within a five year period.

3. On the evidence adduced before me I am affirmatively satisfied that the Deceased did drink 180kgs of alcohol or more within a five year period and, in particular, within the five year period immediately prior to his death.

4. The definition of "prolonged and heavy alcohol consumption" in the SoP refers to consumption evidenced by medical recognition of such excess.

5. I find this phrase difficult to interpret in the context of the SoP.  The plain words of the definition do not require that the medical recognition of the excess be contemporaneous with the consumption.

6. The Respondent's advocate submitted that the recognition must be contemporaneous.  If so, this places an impossible burden upon the current Applicant.

7. Both in oral and written evidence the Applicant stated that she and her husband lived on farming properties and, from this, I infer they did not have ready access to medical practitioners.  In addition, she stated her husband did not like going to doctors if he could help it.  Her affidavit refers to the fact that her husband continued drinking heavily despite obvious problems it was causing him socially and medically.

8. Document T13 at p69 is a letter from Deceased's general practitioner dated 20 June 1998 addressed to Sydney Legacy which states:

   "We have been unable to locate the file for Mr Wallis.
   Some old files in our archives were destroyed by the 1991 flood of Inverell.  It would seem the file for Mr Wallis was one of them."

1. That letter immediately raises the provisions of s119 of the VEA which reads at paragraph (h) that in making a decision the Commission:

   "… 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; and

   (ii)the absence of, or a deficiency in, relevant official records, …"

1. In seeking to interpret the SoP it must be kept in mind that it is a legislative instrument – see Tamberlin J in Vietnam Veterans' Affairs Association New South Wales Branch Inc v Cohenand Others 70 FCR 419. As such it is subject to the normal canons of statutory interpretation.

2. In interpreting a statute, a court or tribunal must consider context in the first instance not merely after an ambiguity is identified – see Spigelman CJ in Repatriation Commission v Vietnam Veterans Association of AustraliaNSW Branch Inc and Ors 48 NSWLR 548 at p575, para 107 and the cases there cited.

3. The so-called SoPs were interposed into the Repatriation determining system by the Veterans' Affairs (1994-5 Budget Measures) Legislation Amendment Act 1994.  Section 196B of the VEA reads:

   "(1)    This section sets out the functions of the Repatriation Medical Authority.
           Determination of Statement of Principles

   (2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

   (a)   operational service rendered by veterans; or
   (b)   …

   (c)…

   the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

   (d)   the factors that must as a minimum exist; and
   (e)   which of those factors must be related to service rendered by a person;

   before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service."

1. "Sound medical-scientific evidence" is defined in subs5AB(2) of the VEA as:

   "Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:

   (a)   the information:

   (i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or

   (ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

   (b)in the case of information about how that kind of injury, disease or death may be caused — meets the applicable criteria for assessing causation currently applied in the field of epidemiology."

1. Heerey J in Deledio v Repatriation Commission 47 ALD 261 at p273, in a passage that was approved by the Full Court (Repatriation Commission v Deledio 83 FCR 82 at p95) said:

   "… the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis.  Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and 120(3) as expounded by the High Court in Bushell and Byrnes."

And continued at p275:

"… is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case.  The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can 'uphold' the hypothesis.  … the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact.  Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact."

1. In the Second Reading Speech by the Minister for Veterans' Affairs, when introducing the amendments to the VEA creating the Repatriation Medical Authority and the SoP regime, the following passage appears:

   "These changes maintain a beneficial Repatriation system, including a 'reasonable hypothesis' standard, as modified as I have already outlined, for deciding compensation claims for death or disease relating to eligible war service.  There has not been a return to a civil standard of proof, as recommended by the Baume committee, …  The Government acknowledges the special status of veterans.  It is hoped that these changes will be effective in overcoming the maverick and fringe claims that have interfered with the integrity of an extremely generous Repatriation system, without having to return to a civil standard of proof for the determination of claims.
   The changes are intended to ensure that the credibility of the Repatriation system is maintained and that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion.  It will not mean that only mainstream medical opinion would be regarded as reasonable, but it will require any alternative opinions to have a sound medical or scientific basis."

Whereas in the Explanatory Memorandum to the Bill as introduced to the House of Representatives it is stated:

"The Authority will prepare Statements of Principles based on sound medical-scientific evidence that will exclusively and state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service."   (Tribunal's emphasis)

1. In Vietnam Veterans Association of Australia New South Wales Branch Inc v Specialist Medical Review Council and Ors [1999] NSWsc 403 Greg James J said of the Sop system at paragraph 72:

   "On my reading of the language, the definition in s.5AB(2)(b) does not deal with actual causes, scientifically proved causes or reasonable or other hypotheses.  It deals with information about how particular kinds of injury, disease or death may be caused.  The definition looks not to the factors but to information as to how those conditions might potentially be caused by factors.  The information must be capable of having the criteria for assessing the potential for a factor to be causative applied to it.  It is not whether the factor is causative that is the focus of the definition.  It is the capability of application of the criteria to the information and whether the application of those criteria will permit assessment of how the condition may be caused by the factor.  The criteria are applied to ascertain whether that information is of value for assessing, one way or another, the potential effect of a possible causal factor, not to exclude all information as to factors unless their actual causal effect is, by that information proved."

And His Honour continued at paragraph 77:

"To require its actual causal effect and the extent of it to be established and stipulated in an SoP before a claim reliant on it in whole or in part could succeed, would involve a great departure from the purpose the extrinsic material shows the provision was meant to achieve.  It would result in the rejection of reasonable hypotheses and fanciful hypotheses alike by cutting the ground from under all hypotheses except those relying on information which had already been determined to prove a causal link, ie. those reliant on proven rather than hypothetical states."

1. What is clear from the above passages is that it was not intended that SoPs detract from the elements of proof in Repatriation matters, especially as regards the reverse onus of proof in matters where the veteran has had operational service.  As was pointed out by Wilcox J in Dixon v Repatriation Commission 29 AAR 235 at 242, it is only at step 4 of the process outlined in Repatriation Commission v Deledio supra that the Tribunal is required to find facts, and that the Tribunal must then be satisfied beyond reasonable doubt that the said facts do not exist.  See also Finn J in Harris v Repatriation Commission [2000] FCA 873 at para 37.

2. The purpose of an SoP is, as pointed out by subs196B(2), to set out the factors which must, as a minimum, exist before it can be said that a reasonable hypothesis exists.  It is not the purpose of an SoP to set evidentiary benchmarks.

3. In my opinion therefore, consistent with the standard of proof in these matters to require evidence, that there was medical recognition of the excess consumption of alcohol prior to the death of the Veteran introduces a factor which detracts from the true meaning of what constitutes a reasonable hypothesis as explained in cases such as Byrnes v Repatriation Commission 177 CLR 564 and Bushell v Repatriation Commission 175 CLR 408.

4. If the question of what is or is not prolonged and heavy alcohol consumption was to be mandated by the SoP then the Repatriation Medical Authority has gone beyond an examination of what factors related to service must exist to create a reasonable hypothesis and is making decisions on what evidence is required to establish facts from which the hypothesis can be drawn.  This is not its function and is ultra vires.

5. Brennan J (as he then was) made it clear in Re Adams v The Tax Agents' Board 1 ALD 251 that this Tribunal cannot decide the validity of the statute. However, where an interpretation is open which accords with the purpose of the Act then the Tribunal should adopt that interpretation. In this matter the interpretation of the SoP requires that the assessment of prolonged and heavy alcohol consumption can be done by a medical practitioner having regard to the material put before him.

6. In his report, Dr Gertler has made the assessment that the Deceased did engage in prolonged and heavy alcohol consumption and no issue was taken with Dr Gertler's qualifications to make this judgement.

7. Although a court (a tribunal) can add words so as to give effect to the legislative purpose, see McHugh J in Mills v Meeking 91 ALR 16 at 37 and, as a Judge of Appeal, in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, I do not regard this case as one where words are required to be added (or omitted) in order to effect the purpose of the Repatriation Medical Authority, but what is required is the reading of the plain words of the SoP so as to give effect to purpose of the legislation pursuant to which it was drafted.

8. Having regard to all the material before me, I am satisfied that there has been raised a reasonable hypothesis connecting the death of the Deceased with the circumstances of his service in that the Deceased's prolonged and heavy drinking was causally related to war service and that, in turn, that prolonged and heavy drinking caused his death from acute pancreatitis.  The facts upon which the hypothesis is based have not been disproved beyond reasonable doubt.

9. The decision under review is therefore set aside and the Tribunal substitutes its decision that the Applicant is entitled to pension consequent upon the war-caused death of Patrick Wallis, deceased, as and from 5 February 1997.

   I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein o:

   Senior Member M D Allen

   Signed:         .....................................................................................
     Associate

   Date of Hearing  10 November 2000
   Date of Decision  1 December 2000
   Counsel for the Applicant        Mr M Vincent
   Solicitor for the Applicant         Ms T Tipper, Dibbs Crowther and Osborne
   Solicitor for the Respondent    Mr S Modder, Department of Veterans' Affairs