Winch, Donald v Repatriation Commission

[1998] FCA 1110

FEDERAL COURT OF AUSTRALIA

REPATRIATION – Veteran’s pension – medical experts differ on possibility of smoking contributing to calcific aortic stenosis – whether open to Administrative Appeals Tribunal to form opinion that material did not raise a reasonable hypothesis connecting smoking to calcific aortic stenosis

ADMINISTRATIVE LAW – natural justice - apprehension of bias – whether fair minded observer might apprehend that a member of Administrative Appeals Tribunal who had also sat in prior hearing had pre-judged applicant’s case which had been remitted for re-hearing - procedural fairness – whether Administrative Appeals Tribunal had denied applicant procedural fairness by referring to medical texts which were not raised at hearing

Veteran’s Entitlements Act 1986 (Cth) s 9

Byrnes v Repatriation Commission (1993) 177 CLR 564 - considered
Repatriation Commission v Bey 149 ALR 721 - applied
Bushell v Repatriation Commission (1992) 175 CLR 408 - considered
East v Repatriation Commission (1987) 16 FCR 517 - cited
Owens v Repatriation Commission (1995) 59 FCR 559 - cited
Woodman v Repatriation Commission (Federal Court of Australia 6 June 1997, unreported) - applied
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) CLR 546 – cited
Secretary Department of Social Security v Jordan (1998) 155 ALR 235 – applied
McMullen v Commissioner for Superannuation (1985) 61 ALR 189 - applied
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 - cited
Colpitts v Australian Telecommunications Commission (1986) 70 ALR 554 - cited

DONALD WINCH v REPATRIATION COMMISSION
VG 489 of 1998

JUDGE:         MERKEL J
PLACE:         MELBOURNE
DATE             8 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 489  of  1998

BETWEEN:	DONALD WINCH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	8 SEPTEMBER 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent’s costs of and incidental to the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG  489 of 1998

BETWEEN:	DONALD WINCH APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	MERKEL J
DATE:	8 SEPTEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

The applicant has appealed, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the AAT”) given on 25 July 1997. The AAT affirmed the decision of the respondent that the applicant’s condition, known as calcific aortic stenosis, was not war caused within s 9 of the Veteran’s Entitlements Act 1986 (Cth) (“the Act”).

The applicant was born in 1920.  After recent surgery the applicant was found to have a densely calcified aortic valve.  This condition is recognised as occurring with increasing frequency with advancing age.

The appeal is limited to “a question of law” and raises four separate issues.  Firstly, whether the AAT erred in its application of ss 120(1) and 120(3) of the Act by failing to satisfy itself beyond reasonable doubt of the matters set out in s 120(1).  Secondly, whether a fair minded observer could conclude that the AAT, or more accurately Ms Shannahan who sat as a member of the AAT, had formed preconceived views adverse to the applicant in respect of the issues to be determined by the AAT.  Thirdly, whether the AAT denied the applicant procedural fairness by consulting and referring to text books in its decision which were not in evidence before it at the hearing.  Fourthly, whether the AAT erred in law in finding that the applicant did not qualify for payment of pension at the special rate, as he had failed to satisfy the requirements of s 24(1)(c) of the Act.

Background

On 12 August 1991, the applicant lodged a formal claim for pension under the Act in respect of two conditions from which he claimed to have suffered: coronary atherosclerosis and calcific aortic stenosis.  On 1 November 1991, the respondent decided that the applicant’s claim in respect of coronary atherosclerosis and calcific aortic stenosis were not war caused within s 9 of the Act.  The applicant sought a review of the decision of the respondent before the AAT.  On 26 June 1995, the AAT decided that the coronary atherosclerosis of the applicant was war caused with effect from 3 April 1991, and assessed the rates at which pension was payable throughout the assessment period, but otherwise affirmed the respondent’s decision that the applicant’s calcific aortic stenosis was not war caused.  The applicant appealed against the AAT decision in respect of the finding in relation to calcific aortic stenosis to the Federal Court.  Before the AAT, two hypotheses were put forward to connect the applicant’s calcific aortic stenosis with his war service.  The first hypothesis was that episodes of tonsillitis and rhematic fever suffered during the applicant’s war service caused or contributed to his calcific aortic stenosis.  The AAT concluded that the first hypothesis was not reasonable, and the Federal Court held that the AAT did not err in law in coming to that conclusion.

The second hypothesis was that the applicant’s war caused smoking habit had caused or contributed to his calcific aortic stenosis.  The AAT concluded that the material before it did not give rise to a reasonable hypothesis connecting the applicant’s calcific aortic stenosis with the circumstances of his particular service.  As a consequence, the hypothesis relied upon was considered untenable and therefore not reasonable.  However, the AAT stated that it had taken into account the fact that no evidence was given at the hearing concerning the applicant’s smoking habit, or any connection it may have had with his war service.

The Federal Court held that the AAT had erred in law in arriving at that conclusion, because there was material before it which pointed to a connection between smoking and the applicant’s war service.  Accordingly, the applicant’s appeal was allowed and the decision of the AAT set aside.  The matter, in so far as it related to the connection between the veteran’s war service and his calcific aortic stenosis, was remitted to the AAT for determination in accordance with law.  The parties were to be at liberty to adduce further evidence and make further submissions to the AAT on the remitted hearing.

On 7 February 1997, the AAT commenced to hear the matter remitted by the Federal Court.  It was constituted by three members one of whom, Ms  Shannahan, a thoracic surgeon, had been a member of the AAT which had previously heard the matter.  The applicant applied to the AAT for Ms Shannahan to disqualify herself on the ground that there was a reasonable apprehension of bias as a consequence of her previous participation in the matter.  The AAT ruled against the applicant and heard and determined the matter remitted to it by the Federal Court.  Evidence was given at the hearing by the applicant, Dr Rosenbaum, a consultant cardiologist and Dr Hammond, a specialist in cardio-vascular disease.  In addition, the AAT had before it the same material which was before the AAT at the prior hearing.

On 25 July 1997, the AAT handed down its decision affirming the decision of the respondent, that the calcific aortic stenosis of the applicant was not war caused, and remitted the assessment of the general rate of pension from 26 June 1995 to the respondent.  The latter aspect of the second AAT decision was based on a finding that the applicant did not satisfy s 21(1)(c) of the Act and therefore did not qualify for the special rate of pension.

The four issues in this appeal raise discrete issues of fact and law.  It is therefore desirable to deal with those issues separately in the order set out above.

Did the AAT err in its application of the Act?

Section 9 of the Act provides:

“9.      (1)       Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)      the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)      the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c)       ......”

The claim relates to operational service rendered by the applicant. Accordingly the provisions of s.120 apply:

“120.   (1)       Where a claim under Part II 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.

(2)      ......

(3)      In applying subsection (1) or (2) 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 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 disease 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.”

In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 the High Court said of the relationship between ss 120(1) and 120(3):

“The position may be summarised as follows: (1) First, subs (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 untenable.  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, subs (1) of s 120 is applied.”

In Repatriation Commission v Bey 149 ALR 721, a Full Court considered the method of applying ss 120(1) and 120(3). Northrop, Sundberg, Marshall and Merkel JJ said (at 724-5):

“The method of applying s 120(1) and (3) is now well established:

(1)      One commences with subs (3).  The first step is to identify the hypothesis said to establish the causal link between the veteran’s eligible war service and the death, injury or disease.  Identifying the hypothesis is a question of fact.

(2)      The second step under subs (3) is to determine whether the hypothesis is reasonable.  The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the “raised facts”) and if the hypothesis can be regarded as reasonable assuming the raised facts to be true.  In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.

(3)      Whether a hypothesis is reasonable is a question of fact.  The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material.  Proof of facts and onus of proof are not in issue at this point.

(4)      If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached.  Sub‑section (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or 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 some cases the hypothesis may assume the occurrence or existence of a “fact”.  That itself does not make the hypothesis unreasonable: Byrnes (at CLR 570) and Critch v Repatriation Commission (1996) 43 ALD 574 at 577.”

Accordingly, at the outset it is necessary to identify the hypothesis said to establish the causal link between the applicant’s war service and the calcific aortic stenosis.  The aortic valve is affected by a process in which calcium is deposited in the valve with associated hardening of the aortic valve.  Such a process may eventually lead to a narrowing or stenosis of the valve.  Although the evidence before the AAT was that there was no medical literature that suggested a link between calcific aortic stenosis and smoking, Dr Rosenbaum gave evidence at the AAT hearing of a hypothesis to that effect.

In his medical report, which was provided at the first AAT hearing, Dr Rosenbaum, stated that causes of aortic valve stenosis were difficult to define.  He said that if the stenosis was not contributed to by the applicant’s rheumatic fever then:

“[i]t is likely that it can be regarded as pre-disposed to by cigarette intake through the mechanism of acceleration as a result of smoking caused atherosclerosis.”

Based on the evidence at the second AAT hearing, the reasoning provided by Dr Rosenbaum in support of his hypothesis, may be summarised as follows:

• it is now generally accepted that smoking contributes to atherosclerosis, a pathological condition which affects arteries resulting in porridge like changes along the arterial wall;

• the condition of arterial atherosclerosis may occur in the aorta where the term aortic atherosclerosis would be more accurate;

• endothelium, which might be a vehicle for atherosclerotic change, is part of the aortic valve material and is also part of the material of the inside wall of the aorta;

• aortic atherosclerosis is accelerated by cigarette smoking and for that reason it is possible that the process of atherosclerotic change leading to calcific stenosis of the aortic valve is “accelerated by cigarette intake”.

During his evidence, Dr Rosenbaum in suggesting that his hypothesis was a reasonable one said it fell “above a level of fanciful and certainly below certainty”.  Essentially, Dr Rosenbaum’s hypothesis was that smoking which contributes to atherosclerosis that affects the aorta might, in addition to aging, or some undefined process, accelerate atherosclerotic changes in the valve itself.  Dr Rosenbaum conceded that there was no medical research that supported his hypothesis and added that it would be a difficult matter to investigate.

Dr Hammond was called by the respondent.  In his written report Dr Hammond concluded that:

“1.The aortic valve is different structurally and physiologically from the aorta.

2.The pathological processes affecting the aortic valve and the aorta can be defined and differentiated.

3.The process of aortic valve stenosis due to calcific aortic sclerosis is distinct from the condition of atherosclerosis affecting the aortic wall.  Such a distinction is well recognised pathologically.

4.The condition of atherosclerosis, for example affecting the aorta, may be predisposed to by a number of risk factors including smoking.

5.There is no evidence available to me to support the contention that smoking does cause or predispose to the development of calcific aortic valve sclerosis.”

In his oral evidence Dr Hammond distinguished the disease process of atherosclerosis as a specific, defined and well recognised process which had not been seen on examination to affect the aortic valve.  In particular, he said that the different vascularity and cells in the aorta and the aortic valve with their different nature and functions were such that the atherosclerotic condition that existed in the wall of the artery or the aorta “just cannot exist in the aortic valve because of a different structure of that particular organ, the valve itself”.  Dr Hammond did not regard endothelium, common to both the aorta and the aortic valve, as a relevant factor.  He explained that the development of atherosclerosis required a series of constituents to be present most of which were absent in the aortic valve but present in arteries and the aorta.  In substance, Dr Hammond explained why, in his view, the hypothesis put forward by Dr Rosenbaum was not a reasonable one.

The applicant contended that Dr Rosenbaum was an eminent cardiologist speaking within the sphere of his expertise and gave clear and unequivocal evidence in support of his hypothesis which he believed to be a reasonable one.  Reliance was placed on the judgment of Mason CJ, Deane J and McHugh J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415, where their Honours said that putting to one side a hypothesis which is contrary to proven scientific facts, the known phenomena of nature or is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous:

“[t]he case 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.”

It was submitted on behalf of the applicant that in the present case there was a conflict between two medical opinions, so the real issue to be decided was whether or not the respondent was able to establish that the raised facts could be disproved beyond reasonable doubt in the manner required in s 120(1).  It was then contended that as the AAT had decided this question under s 120(3), it had erred in law.

The respondent contended that the AAT correctly identified the statutory framework and addressed itself to the correct question under s 120(3) namely, whether the whole of the material before it raised a reasonable hypothesis to connect calcific aortic stenosis with the applicant’s war service.  It was said that the AAT correctly regarded the question of the reasonableness of the hypothesis put forward by Dr Rosenbaum as one of fact for it to determine and, in arriving at its conclusion, did not err in law as it was clearly open on the material for it to form the view that the hypothesis was not a reasonable one.  The material before the AAT included evidence that were no post operative signs of atherosclerosis in the applicant’s aortic valve, there was no research evidence or epidemiology supporting Dr Rosenbaum’s hypothesis and the applicant’s histology also failed to support the hypothesis.  In substance it was said that the only positive material to support the hypothesis was Dr Rosenbaum’s opinion and that was expressed tentatively.

For a hypothesis to be reasonable it must possess some degree of acceptability or credibility; it requires more than a possibility and must be a hypothesis pointed to by the facts even though not proved upon the balance of probability: see East v Repatriation Commission (1987) 16 FCR 517 at 531-533. In many ways, the issue in the present case is analogous to that which arose in Owens v Repatriation Commission (1995) 59 FCR 559. In Owens the trial Judge concluded that the AAT had not erred in law in rejecting a hypothesis put forward, on the ground that it was open on the evidence to the AAT to reject the hypothesis which it, as a question of fact, had done. The High Court (Brennan CJ, Gaudron and Gummow JJ) (1996) 70 ALJR 904, on the application for special leave to appeal from the decision of a Full Court allowing an appeal from the trial Judge, emphasised that for the purposes of s 120(3), the question whether material raises a reasonable hypothesis is a question of fact which involves no more than a determination whether “an hypothesis of connection is reasonable”. In the present case, as in Owens, the AAT had not simply chosen between two professional opinions but found, after having regard to the whole of the material, the hypothesis relied upon was not reasonable.

The issue arising on the present application is also analogous to that which arose on the appeal from the first AAT hearing in relation to Dr Rosenbaum’s hypothesis connecting the applicant’s rheumatic fever and rheumatism with his aortic stenosis.  That hypothesis was rejected by the AAT as not being a reasonable hypothesis.  I upheld that rejection on appeal on the basis that the reasonableness of the hypothesis was a question of fact for the AAT and it was open to the AAT on the evidence to determine that the hypothesis was not a reasonable one.

In Woodman v Repatriation Commission (Federal Court of Australia 6 June 1997, unreported) a Full Court concluded that it was open to the AAT to resolve the question of reasonableness by accepting one medical opinion and rejecting another, if it was open to it on the evidence to do so.  The Full Court did not accept the argument that the AAT, in rejecting the hypothesis, had wrongly imported the proof of facts required by s 120(1) into its determination of the reasonableness of the hypothesis under s 120(3).  The Full Court (at 5) stated that although proof of facts was not in issue under s 120(3) that does not suggest:

“…that the reasonableness or otherwise of the hypothesis is not a question of fact or at least of value judgment.”

Their Honours explained that s 120 requires a two-stage process:

“The first stage involves an examination of the reasonableness of the hypothesis of the kind propounded in the present case as a general medical theory.  The second stage requires consideration of whether the propounded hypothesis is available in light of the facts proved to pertain to the particular applicant veteran.”

In the present case, the AAT considered the whole of the material before it, correctly summarised the differences arising in the evidence between the opinions of Dr Rosenbaum and Dr Hammond and (at p 16) concluded as follows:

“A reasonable hypothesis does not have to be supported by accepted scientific studies, although medical experts sometimes erroneously regard scientific proof as necessary.

Dr Rosenbaum does not express it as his view that there is a causal connection between aortic valve stenosis and smoking but rather, that there might be.

Dr Hammond’s evidence regarding the structure of the aortic valve and the aorta accords with the descriptions given by authoritative medical texts: Gray’s Anatomy 38^th Ed, The Textbook of Histology by Maximomow and Bloom, 6^th Ed, and Histology by Arthur W Ham, 8^th Ed.  The texts give similar descriptions of the structure or the aortic wall and the aortic valve cusps i.e. that the aortic valve is an avascular structure in contrast to the aorta which has a well developed blood supply, and the media of the aorta is made up of elastic tissue.  Dr Rosenbaum, however, was of the opinion that the aortic wall had a muscle layer, and his hypothesis linking cigarette smoking with the development of the atherosclerosis in the aortic valve was based on the similarity in structure of the valve and the aortic wall.

Having regard to all of the material, and in particular to the evidence of Dr Hammond referring to the significant structural difference between the aortic valve and the aorta, in our view the  hypothesis of Dr Rosenbaum is flawed.  The material does not raise a reasonable hypothesis connecting the veteran’s aortic valve stenosis with the circumstances of his war service for the purposes of s 120(3) of the Act.  Therefore, in applying s 120(1), the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination sought by the veteran.”

In my view, the AAT has not been shown to have erred in law in determining that the hypothesis put forward by Dr Rosenbaum was not a reasonable one.  Having arrived at that conclusion under s 120(3), it followed that applying s 120(1), the AAT was obliged to find that it was not satisfied beyond reasonable doubt that there was sufficient grounds for making the determination sought by the applicant.

Reasonable apprehension of bias

The applicant submitted that Ms Shannahan’s participation in the first AAT hearing and certain questions asked, and interventions made, by her in the course of the first and the second hearing were such that a fair-minded observer might entertain a reasonable apprehension that Ms Shannahan might not bring an impartial and unprejudiced mind to the resolution of the question involved in the matter before the AAT: see Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. It was contended Ms Shannahan’s conduct justified a reasonable apprehension of bias by pre-judgment.

It is well established that it is insufficient to found an allegation of bias, that an earlier hearing has been conducted by a person who has previously given thought to the subject matter and having thought about it has formed a view with respect to it: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) CLR 546 at 555. In Secretary Department of Social Security v Jordan (1998) 155 ALR 236 at 248, Hill J after considering the authorities in relation to a similar submission said:

“It is suggested that the comments of the Senior Member during the course of the evidence might convey the impression that he had formed a concluded view.  In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100, Gaudron and McHugh JJ commented:

‘A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry … When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.’

There have been few cases which have considered the issue of ostensible bias where comments have been made during the trial, which comments are relied upon as showing such bias.  I had cause to consider the most important, at least, of such authorities in Khadem.  It is clear that for ostensible bias to be made out, it must be firmly established that the circumstances raise a substantial case.  So much was made clear by Dixon CJ, Williams, Webb and Fullager JJ in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116:

‘But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there be strong grounds for supposing that the judicial or quasi judicial officer has so acted that he cannot be expected fairly to discharge his duties.  Bias must be ‘real’.  The officer must have so conducted himself that a high probability of bias inconsistent with the fair performance of his duties, with the result that substantial distrust of the result must exist in the minds of reasonable persons.  It has been said that ‘preconceived opinions’ – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence would be disregarded…’”

In my view, the present case falls a long way short of an apprehension of bias by pre-judgment.  The first AAT decision did not determine the reasonableness of the hypothesis which was considered at the second hearing.  In the first AAT decision there was no substantive discussion of the reasonableness of the hypothesis of Dr Rosenbaum which linked the applicant’s aortic valve stenosis with smoking; that was the substantive issue to be considered and determined at the second hearing.  Rather, the first decision on this aspect turned on the absence of evidence that the applicant’s smoking habit was war caused.

I have also carefully considered the various passages in the transcript relied upon on behalf of the applicant.  In my view, the comments of Ms Shannahan and the questions asked by her do not suggest that she was disregarding or intending to disregard the evidence, or was acting otherwise than she was obliged to act to discharge her duty as a member of the AAT.  It was suggested by the applicant that her questions favoured one side.  Unfortunately, this submission misconceives the function of the AAT.  As was pointed out by Brennan J in Bushell at 424-425, although proceedings before the AAT may at times appear to be adversarial, when the Commission chooses to defend its decision or to test a claimant’s case, the substance of the review was inquisitorial. His Honour observed that the AAT, being an administrative decision maker, was under a duty to arrive at the correct or preferable decision in the case according to the material before it. His Honour added that if the material was inadequate, the AAT could itself request or compel the production of further material. It is a misconception of the task of the AAT, for a member to be criticised for asking questions on any relevant matters in issue, even if the questions appear to favour the case of one particular party. In any event it is difficult to accept that questioning on a matter in issue, “favours” one side or the other. It is the answer to the question that is of importance.

Accordingly, in my view the applicant has not established that the circumstances raise the requisite case of apprehension of bias.

Use of text books

The AAT, in its decision, indicated that it accepted the evidence given by Dr Hammond regarding the different structures of the aortic valve and the aorta.  It added that Dr Hammond’s evidence accorded with descriptions given by certain authoritative medical texts to which the AAT referred.

It was contended by the applicant that he had been denied procedural fairness, as the texts had not been raised or drawn to his attention at the hearing, or put to Dr Rosenbaum.

In my view, the submission is without foundation.  The matters relied upon in the texts were not new points which had not been raised at the hearing.  The points were dealt with at the hearing by Dr Hammond and were also put to Dr Rosenbaum.

The AAT is fully entitled to consult medical texts in order to better understand and explain medical evidence: see McMullen v Commissioner for Superannuation (1985) 61 ALR 189 at 208-209 and Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 at 41-42. However, if medical texts were relied upon to raise a new point which the applicant had not been given a fair opportunity to meet at the hearing, then a different situation might arise: see Kirkpatrick at 42 and Colpitts v Australian Telecommunications Commission & Ors (1986) 70 ALR 554 at 572. As was pointed out by Burchett J in Colpitts (at 572), if information is relied upon by a Tribunal in relation to one of the decisive issues in the matter and no opportunity has been afforded to the applicant to deal with that material, then there may well be a case of denial of procedural fairness.

In the present case, the applicant was given ample opportunity to deal with the substance of the matters referred to in the texts which were in issue, and able to be dealt with by the parties, at the hearing.

Section 24(1)(c)

The issue raised by the applicant in relation to s 24(1)(c) is not easy to follow.  The solicitor appearing for the applicant conceded that the decision of the AAT in relation to s 24(1)(c) was essentially a question of fact; he did not contend that the AAT erred in law in arriving at the conclusion that it did.  Rather, the submission appeared to be that the issue under s 24(1)(c) did not arise, as it had not been established that the degree of incapacity of the veteran from war caused injury or war caused disease was 70% or more.  It was contended that without such a finding, the AAT had no jurisdiction to refuse the application for pension at the special rate under s 24(1)(c).

The AAT had, however, determined that the requisite degree of incapacity had been achieved by the veteran between 1 July 1993 and 1 July 1994.  Having arrived at that finding it was necessary for the AAT to consider s 24(1)(c).  The Tribunal said the issue considered by it in relation to s 24(1)(c) related to the period subsequent to 1 July 1993 which the Tribunal indicated was the date on which the applicant had satisfied the 70% qualification under s 24(1)(a)(i) of the Act.  The conclusion of the Tribunal was that since that date, the applicant had failed to satisfy the criterion in s 24(1)(c).  That was a matter which was placed before the Tribunal for decision by the applicant and no error was made by the AAT in deciding it.  It was not inconsistent with that finding for the AAT to have remitted the matter back to the respondent for reconsideration of the issue of the assessment of the general rate of pension payable to the applicant from 26 June 1995.

In any event, in my view, it was open to the AAT to reject the application under s 24 on any of the grounds it determined to be appropriate.  In the present case the AAT determined that during the relevant period the applicant had failed to satisfy the requirements of s 24(1)(c).  Even if I assumed in the applicant’s favour that other pre-conditions may not have been met, it was nevertheless open to the AAT to say that the application failed under s 24(1)(c).

In my view no error of law has been shown to have been made by the AAT in relation to its decision concerning s 24(1)(c).

Conclusion

For the above reasons the application is to be dismissed with costs.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel

Associate:

Dated:             

Counsel for the Applicant:	Mr D De Marchi
Solicitor for the Applicant:	De Marchi & Associates
Counsel for the Respondent:	Mr P Hanks
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 August 1998
Date of Judgment:	8 September 1998