Winch v Repatriation Commission

[2000] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M51 of 1999

B e t w e e n -

DONALD ARTHUR WINCH

Applicant

and

REPATRIATION COMMISSION

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 26 MAY 2000, AT 11.36 AM

Copyright in the High Court of Australia

MR D. DE MARCHI:   If the Court pleases, I appear for the applicant in this matter.  (instructed by De Marchi & Associates)

MR P.J. HANKS, QC:   If the Court pleases, I appear for the respondent. (instructed by the Australian Government Solicitor)

MR GLEESON:   Yes, Mr De Marchi.

MR DE MARCHI:   Your Honour, the issue between the parties is the acceptance of aortic stenosis as being war caused.  This is not a hypothetical question because the answer to it could flow considerable benefits to the veteran:  one of them is special rate pension; the other one is the extreme disablement adjustment and finally a war widows’ pension to the widow if, indeed, the veteran was to succumb from that condition.

In order for the applicant to succeed, we need to show to the Court that the Administrative Appeals Tribunal erred in law and, in that respect, we advance two points: we say that the AAT erred in the application of section 120 of the Veterans’ Entitlements Act and that it erred in the procedure it adopted in examining the textbooks in applying section 120 of the Act. We also need to show that the Federal Court wrongly disallowed the appeal and that there are, of course, special leave questions involved in this particular case and that our argument is convincing and that the Court should make one or more of the orders that we have sought.

The crucial point is the interpretation of section 120 of the Veterans’ Entitlements Act.

GLEESON CJ:   Where is the most convenient place to find that, Mr De Marchi?

MR DE MARCHI:   The most convenient place, your Honour, would be to go to the Administrative Appeals Tribunal decision and, on page 13 of the application book, you will see there that the Tribunal deals with the relevant part of section 120, which was section ‑ ‑ ‑

GLEESON CJ:    I think the section is at page 34 of the application book.

MR DE MARCHI:   It is also found there, your Honour, yes.

GLEESON CJ:   Now what is the issue that arises about that?

MR DE MARCHI:   If I can take your Honour to the argument that we have provided to the Court on page 79 of the application book, you will see at paragraph 9, your Honour, that:

The Tribunal failed to ask a primary question, it did not ask whether all or some of the facts gave rise to a reasonable hypothesis.  The Court failed to see two important errors which were the consequences of this approach:

The first error was that a hypothesis, even if some facts did not support it, could still be reasonable.

GLEESON CJ:   Is that right?  Is not the question to be decided after consideration of the whole of the evidence?

MR DE MARCHI:   Yes, it is, your Honour, but consideration has to be decided within the ambit of section 120.

GLEESON CJ:   Yes.

MR DE MARCHI:   And section 120 has two elements to it; there is subsection (3) which requires the hypothesis to be examined, but there is section 120(1) which is paramount in its application, according to the court.

GLEESON CJ:   But the decision has to be made finally on a consideration of the totality of the material before the decision maker, does it not?

MR DE MARCHI:   It has, your Honour, but not at the expense of challenging those factors that will be rejected by the Tribunal, without putting those factors to the test of section 120(1), and this is what the Tribunal has done here and this is what the court has endorsed as an appropriate way of dealing with these cases.

GLEESON CJ:   I am just having difficulty understanding from the language of the statute the error that you say was made.  Which are the words that you rely on that you say were not followed here, Mr De Marchi?

MR DE MARCHI:   It is not a question of the words, your Honour; it is a question of the interpretations that those words have been given by the Court in Bushell.  What we say is that in order for the reasonable hypothesis to be determined, you must put the facts, all of the material that are before the Tribunal, through a test, and that test is as follows:  if you find - - -

GLEESON CJ:   But you do not put them through the test one by one, do you?

MR DE MARCHI:   Well, yes; if you are going to reject some particular factor, which should not be rejected when the Tribunal considers the hypothesis as to whether it is reasonable or not.  What the Court has said in Bushell and Byrnes is that you look at all of the factors and you do not, at that stage, decide whether the factors are true or not.  You accept them as being put before the Tribunal, and if the Tribunal accepts ‑ ‑ ‑

CALLINAN J:   Well, no, there must be a reasonable hypothesis, according to what the Court said in Byrnes.

MR DE MARCHI:   A reasonable hypothesis, your Honour; that is the final determination that the court has to make, but in order to make that determination, it has to look at all of those factors, without deciding upon those factors at that particular point.

CALLINAN J:   The Court has to decide first that the hypothesis is reasonable.

MR DE MARCHI:   Well it does, your Honour, in general terms, but the procedure, in arriving at that reasonableness, is where the Tribunal has got it wrong, it is where the Full Court has got it wrong and it is not following the dicta in Bushell and Byrnes in that application.

GLEESON CJ:   Am I right in thinking that what happened in the present case was that one expert came along and said, there is a reasonable hypothesis connecting the injury with the war service and two other experts came along and they said, the first person is wrong, there is no reasonable hypothesis, and the decision-making body had a look at the totality of the evidence and then said, “We prefer the opinion of the two and we do not think that the evidence raises a reasonable hypothesis.”?

MR DE MARCHI:   Yes, but what the High Court said in Bushell, your Honour, was that it does not matter if the hypothesis had been advanced by one expert happens to be out of step with the rest of the medical evidence of other experts.

GLEESON CJ:   When you say it does not matter, it is not decisive.

MR DE MARCHI:   It is not decisive.

GLEESON CJ:   No, but it is relevant, is it not?

MR DE MARCHI:   It is a factor.

GLEESON CJ:   Yes.

MR DE MARCHI:   It is a factor, but if you are going to reject that factor, then you have to reject it by virtue of section 120(1).

GLEESON CJ:   Yes.

MR DE MARCHI:   And the Tribunal did not, at any stage, weigh up that factor pursuant to section 120(1) and that is where it has committed its error of law. Of course, what is happening in the tribunals, is this, that the tribunals are doing exactly that; they are weighing the evidence given by the respondent, in cases, and deciding then, on the balance of probabilities whether there is a reasonable hypothesis.

GLEESON CJ:   Mr De Marchi, I do not want to nag away at this point, but we are dealing with the language of a statute.  Which are the words of the statute on which you rely and which you say were not followed in the present case?

MR DE MARCHI:   Your Honour, section 120(1) indicates that, where a claim falls “under Part II” and the individual veteran has “operational service”, the body that determines the matter must find:

that the death of the veteran was war-caused.....unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

GLEESON CJ:   Now, pausing there, am I right in thinking that in reaching that state of satisfaction, it ought to have regard, and it entitled to have regard, to the totality of the evidence before it?

MR DE MARCHI:   Yes, it has, and, moreover, it is given that task by section 120(3), which, in fact, says:

In applying subsection (1) or (2).....the Commission shall be satisfied ‑

if, having regard to the material that is before it ‑ ‑ ‑

GLEESON CJ:   It says, “the whole of the material before it”.

MR DE MARCHI:  

the whole of the material before it.....it does not raise a reasonable hypothesis ‑ ‑ ‑

GLEESON CJ:   Yes.

MR DE MARCHI:   Exactly.  That is what the section ‑ ‑ ‑

GLEESON CJ:   So you do not automatically win just by getting one expert to come along and say, “I believe that this is a reasonable hypothesis.”

MR DE MARCHI:   No, you do not win by getting 10 experts coming along by saying that.  The point is, you do not lose by the fact that there are two or three other experts ‑ ‑ ‑

GLEESON CJ:   No.  Did anybody in the present case suggest that you do?

MR DE MARCHI:   No. Well, your Honour, the approach that has been adopted by the court here, in fact, does not take into account the reverse onus of proof of section 120(1).

GLEESON CJ:   Where do you show us that in the reasoning?

MR DE MARCHI:   Well, first of all, the Tribunal does not examine any of those factors and put them to the rigour of section 120(1). It simply says there is no reasonable hypothesis and therefore subsection (1) applies. That is the conclusion that the Tribunal comes at, but does not actually put any of those factors to the test. The court similarly ‑ ‑ ‑

GLEESON CJ:   Is there any error in what the Tribunal says in the last paragraph on page 13?

MR DE MARCHI:   It is true what the Tribunal says in that paragraph but, in doing so, it had to reject the factors supporting the hypothesis by reference to section 120(1) and that it did not do, at any stage of its decision. In fact, the conclusion that the Tribunal comes to is that because ‑ ‑ ‑

GLEESON CJ:   It is a little hard, having regard to what appears in the first paragraph of page 14, to say that the Tribunal did not take any notice of section 120.

MR DE MARCHI:   Are you referring, your Honour, to - - -?

GLEESON CJ:   The analysis of section 120 appearing at the top of page 14.

MR DE MARCHI:   Yes.  The analysis was perfect.  The exposition of the legislation was perfect.  The application of it did not come into place.  If I could take your Honours to page 18 of the application book, at line 15, that is essentially the finding of the Tribunal:

Having regard to all of the material, and in particular to the evidence of Dr Hammond referring to the significant structural difference –

so we are talking about differences of opinion between Dr Hammond and Dr Rosenbaum –

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 section 120(3) of the Act.

GLEESON CJ:   Yes.  You made a submission to us about two minutes ago that they did not apply the onus of proof.  Do you not see them applying that on page 18 at line 20?

MR DE MARCHI:   No, they do not, your Honour, because what they are doing, they are saying, “We have decided this case pursuant to section 120(3)” and therefore automatically that brings section 120(1) into play and it negates everything that the court has previously said about the fact that, if you are going to have conflicting evidence between doctors, and you are going to accept a particular situation that is contrary to the applicant, then you must prove it beyond reasonable doubt. Those facts have got to be rejected beyond reasonable doubt. What the Tribunal and the court had before it was essentially a difference of opinion between two eminent cardiologists.

GLEESON CJ:   But, as you rightly said, it would not matter if it was two or 10.  You seem to want to contend for the proposition that as long as the applicant can get one expert to express an opinion in his favour, he cannot lose.

MR DE MARCHI:   That is not the case, at all, your Honour.  What the applicant has to do is to prove that there are factors pointing to the hypothesis and, in fact, there were factors pointing to the hypothesis here.  There was Dr Rosenbaum, who was saying, “The lining of the aorta terminate in the shaping of the aortic valve.  Smoking affects the aorta and I postulate that smoking can affect the aortic valve.”  Dr Hammond was saying, “No, the physiology of the aortic valve is different.  It could be calcified by build-up of an aging process, but it cannot be affected in the same way that the aorta can be affected, because of its composition and its physiological make-up.” That was the difference.

GLEESON CJ:   But the ultimate factual question that the Tribunal had to address was whether Dr Rosenbaum’s hypothesis was reasonable and they said it was not.

MR DE MARCHI:   No, it did not have to find that out, your Honour. What it had to do was to find whether the factors in the case supported the hypothesis, whether there were factors that surrounded the circumstances of the case which supported Dr Rosenbaum’s hypothesis, and, if there were, that would automatically make the hypothesis reasonable. That would not have stopped the Tribunal from coming back and saying, however, “If we now put to the test of section 120(1), are we satisfied beyond reasonable doubt that, in fact, it is not possible that the aortic valve could have been affected and that therefore that this hypothesis is not reasonable?”, then they would have completed their task. I do not think I can take the matter much further, your Honour.

GLEESON CJ:   We do not need to hear you, Mr Hanks.

The Court is of the view that there are insufficient prospects of success in an appeal to warrant a grant of special leave in this matter.

Can you resist an order for costs, Mr De Marchi?  Is there a question of costs?

MR HANKS:   We certainly do apply for costs, your Honour.

GLEESON CJ:   Can you resist an order for costs, Mr De Marchi?

MR DE MARCHI:   The matter I would like to say about costs, your Honour, is this, that these are matters that are of some concern to veterans and, of course, the Repatriation Commission is in a position to deal with these matters, and does deal with them on a regular basis.  Under the circumstances, it might be appropriate for an order to be made that no costs be awarded.

GLEESON CJ:   The application is dismissed with costs.

AT 11.54 AM THE MATTER WAS CONCLUDED