CATCHWORDS Repatriation - war widow's pension ~ death of former member of Armed Forces from adenocarninoma of the lung ~ whether death had arisen out of or was attributable to war service - standard of proof. Administrative law - Administrative Appeals Tribunal - appeal to Federal Court of Australia - standard of proof to be applied by Trinunal - misdirection in approach by Tribunal to evidence - remittance of matter to Tribunal, Administrative Appeals Tribunal Act 1975 s.44 Repatriation Act 1920 ss.47, 101 BETTY DENNELL vy. REPATRIATION COMMISSION W.A. Ne, G.23 of 1982 Northrcy, Toohey and Sheppard JJ, Melboyrne 3 Ferrvary 1982. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W.A. No. G.23 of 1981 GENERAL DIVISION ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: BETTY LENNELL . Applicant and REPATRIATION COMMISSION Respondent ORDER JUDGES: Northrop, Toohey and Shepperd JJ. DATE: 3 February 1982 WHERE MADE: Melbourne THE COURT ORDERS THAT: 4. The appeal be allowed. The decision of the Administrative Appeals Tribunal be set aside. The matter be remitted to the Tribunal to be heard and determined according to law after the Fearing of such further evidence as 1t may Gecide to receive. The Repatriation Commission to pay the applicant's costs of the appeal. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W.A. No. G.23 of 1981 GENERAL DIVISION ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: BETTY LENNELL Applicant and REPATRIATION COMMISSION Respondent CORAM: Northrop, Toohey and Sheppard JJ. NORTHROP J. and SHEPPARD J. REASONS FOR JUDGMENT 3 FEBRUARY 1982 In this matter we have had the advantage of reading the judgment to be delivered by Toohey J. We are thus saved the necessity of setting out the essential facts, a summary of the conclusions of the Administrative Appeals Tribunal ("the Tribunal") and the effect of the decision of the High Court in Repatrietion Commission v. Law (as yet unreported, 16 October 1981). Subject to the further matters hereinafter referred to we adopt those aspects of his judgment. This is another of the increasing number of cases coming before the Repatriation tribunals in which persons Claim to be entitled to pensions under the Repatriation Act 41920 ("the Act") as a result of the contracting of cancer by the claimant or by a person upon whom the claimant was dependent. In this case the essential questicn for decision concerns the meaning and effect of s.47 of the Act. In essence, the applicant made two submissions... These were: 1. The evidence was such that no tribunal properly directing itself as to relevant matters of law could have reached the conclusion that it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. As a matter of law, the only course open to the Tribunal was to hold that it was not so satisfied. 2. Contrary to the principles decided upon in Law's case and to what the 'Tribunal itself said about them, a reading of its decision discloses that 1t had imposed en onus of proof upon the applicant to establish a causal link between the deceased's war service and the cancer from which he died, an onus which upon the true construction of the legislation she @ad not bear. Jt 15 noted thar in Law's case the High Coart considered the effect of s.107VH of the Act while the present case concerns the effect of s.47 of the Act, but the substantive effect of the two sections is the same. In the submission of the Commission ic was plainly open to the Tribunal to reach the conclusion which 1t did. Nor, in its submission, was there any failure to apply the principles of Law's case. A proper understanding of the Tribunal's decision, reading it as a whole, did rot disclose that it had imposed any onus of proof upon the appellant. It 18 to be observed that the two submissions relied upon by the applicant are separate and distinct, the first not being based upon anything said by the Tribunal in developing its reasons. It goes only to the Tribuna]'s conclusion. If that submission were upheld, tho proper course would be to substitute for the Tribunal's decision, a decision that would have the cffect of there being granted to the applicant the pension which she seeks. On the othor hand, if the first of tle applicant's submissions be rejected, but the second upheld, the appropriate course will be to remit the matter to the Tribunal so that it may dec:déc the matter according to law. In thac event it would not be appropriate for us to substituie any decision of our own for that cf the Tribunal. What we have said indicates tnar. If the first submission be upheld it will be unneccssary to consider the second. The evidence referred to by Toohey J. ain his Judgment denonstrates that if the applicant had been required to make out a positive case, it would have been an extremely weak one. Indeed, there is mor cto be found in any of the medical opinions any support for it at all. But in the applicant's submission that is of little consequence because she carries ne onus of procf:; the Commission on the other hand bears the heavy onus ef Gisproving absence of causation between the deceased's war service (including accidencs and diseases suffcrced in the cavrse of or as the result thereof) and the cancer from which he died; see ss.101(1) and (1A) and 47. In summary, the mzcters relied upon in support of the applicant's first submission may be summarized as follows: 1. The deceesed died of cance: suffered in the first instance :n the lung. 2. Whilst on wer service cre Geceased suffe: 7 bouts of tonsillitis leading eweatviclly to the removal of his tonsils in May 1945. i) an i] Whilst on war serv+ce the deceased suffered stress arising from a number of dist:essing incidents dctailed in the evidence, che prircipst of which were the crash of a Whitley bomber in which the deceased was carrying out pirlot training, one of the engines of another howher of which he was the pilor catching fire, e Halifer bomber crashing and bursting irto flamec (incinerating 1ts crew) at the end of a runway, and a Stirling bomber, blowing up in mid air in frort of his aircreft during operations over the Phine River. The deceased smoked cigcrettes during the period of his War service, haying teken up cigarette smoking prisr to enlistment. The deceased suffered ctrouble with his back due, firstly, to some injury therero suffered in the crash of the Whitley bomber, ané@ sscordiy, co posrural problers arising because of Jong Bovis in the confined spaac of an aircraft cockpit. The cause of the concer from which the deceased dic is unknown. Alrhough the medical ovidenuee tends to eaclut wer service ang oavents and cissasce associates theresith as causative of feed the conees Cram which the deccasecd diced, rt did not positively exclude the following ponsihilitioe-, each cf which was ssid to be real] and €1stiner: (b {c ) ) we The cancer was causes by cigarettes smorcd by the deceased during ard ofter the wac, and possible increascd wroting beina due to the stressful conditions under whic' ho served and bouts of pain suffered by him as a result of his back p;obliems. The cancer was cz sed by the direct effect f of stress vpon him aacepentently of cigarett< smoking. The cancer was caused by a Jewerlng of the imyuno-sufficiency systen of the dreersed (immunosuppression) hecause of the removal of his tonsils and also wreblems with his back, the stiess from which he svifeccd, his sweking, 0. combinations of tva aot more oc all of thee Ecctors., The cancer was ceused by an unknero thd unidentifiable ovent, incident, dis *ase oo: circumstance whice ie spened or tas sufferei by the deceased either dursig Geo as a conscaasier oof fe) Whe cancer was caused by a cc bination of two or ita) more of the matters epecifica in the previans A n ue] ue} o a ry if) th mtrt a iv fel pa] cr a ty K n Meneioned ap paragi sh 7(d), counsel ter the applicanr went so far as to subate the! evelry percon who had war sarvieco 2nd who died of a diseesr, the cause or origin of which covld not be identified or understood, was entitled te a pension. That submisarton docs not, however, need to be eccepied in order that thr applicent's first sutnié be cxaeld,. The summary of che macdiceal evidence in the Judgment of Woohey J. disclesecs tnet each of the doctor:, uaderstandably, aporoached the p.oblier Eom the view whecher the evidence established any acce3zdent or drew = a, otner circumstance related to wer seivicce had coverd th deceased's cancer. They did net ap.srorch ait from th viewpoinc Of negativing his war service #5 a possible caus. But, when oSked anout possinilicte+, thetr oviderc os was to the effect tirt at wes moe. ualinely ther amy of th< Macttecs referred to an paragiaen 7 elyrar yes a pact of the disease. Tn vertisul that there 3s ro suugacstion whatever thar the hack candyes my ie) fom i) from which the deceased suffe onjyd lieve bern am. ath? cause. SEVSLS IPG eyHunesul er. is1e7, 4 the rewoval of tue Geceesad's tonsils of ofticiwien, Were heavily disvounted <5 poss:ililities. sone of the avis suggesting thon thuy wore ren posethie causen ci all. Tt remeins to cr sicar tne effect' of swan According to the medical evidence there were tea foot ore Miiicating againse the view Elet wr wes the caucve. The Ti ocr vas the period or lead cars becpeen tho aupselte ta to relevant cells and the onset af che discase. Thais ves pur as boing likely to have been ro longer thon 25 years, whici would tak® one back no eaerjJ.ier thea 1952, Bat oo Llonrter period was acknowlecocd as being possitte. Ane tre Leer 9 Pr one wae consirained by a perivd of 25 years POsition, would moc overce es a case Laced on inere- 72 snaking arising or continvin:y after the ver as tore reeul of Stressful conditions svfferec durira ard h, reecon of sear tus ain 3t. The second Facts: is the evidence cher the rartscularc veviacty of canc 5 sucdretey ly the dee oo a7. OGERICALCAHONG. Tess 1S to ke dssciaguisned tram +. carcinoma of the Pooare rnre assal type oF rs eaused by smoking. Bet a Stave y mol tends ta eetaltahh pie y there 18 « Somewhek higher iecidence of ate nocarcer wa et leng gn smokers thon in non-suck-ra. Fartherrore , fle cin Polacipal cease of ederocarelrae > is cok ty rt ft nh seartng at tne dengs uc vlecd*,. er to taer rtte PCW! Vata. Fuero £. AL atener of a facts © of urner tract infections sucte rtd te the Ueweaeedt Toe na hisucry vi gusumapss ant, bis reto oc, na avid ue GE fee rrain, of his lungs. Noteztirstentiad i) rw lghe thet ts > oF wore Just mentioned, 1t weuld seem to us thal theger renwins e¢ Serious Guestion mark aboun smokeng as a cuuen The Te stays was able to discount this poseibrlity hecaus> of a view Elton aout tae cvidence of Prefgesso., Yettierssli, ora +- the werljcal peackition.e.s ced lrd pelore yo. thls bert ends Wie accent thek Loe cxcerior's cman i,, othe Lnor smasing pervcor 1944 end Jet, weld have beer a orate, an time edise liane of tos adgentcureinona, Vic oage gabbar al! os yet gage ex-member rad ai smolrirg hahin refou onisatnency? there gs ne evidence Coen Lhat hablo was imecienas 4, Flieiesd as erolor ged te his war service." Professcn Wetcursatt re Pye ferr or or Car os Gedicines ot the Univertias of Sy icy Te atastab eritea 4 earch cuncer aud aleo retorts raoeot ch apta yheoc . Gas qearye pat recess toga 4hoe Seootsan Ty Toa |r tte ye r no, ca. Ga abe 27 tae ' mt tbe Cundar gs up Cie wus ae Cr a | 5 eae 18 OF tne eneh oe tae tee hts wor 4 to fren tT 78 tae Torry ic ab gases] maagcey. thak seatwc? - be oan, Yes? --- No. You wp feyled ls ,loobas oo te on cw Me, cheers be¢ been tet to uestk swckipy? Poscb os yee euvli exoock this Uictete te oecur? s-- Vaud resvect, Toaa ey ro Logo now fro, whe etsy beorrs fa.st or Sifu, crore .etie. w Or the 5600th for tber matter. ar - mee? ree ~ = L . -. was ¢') cSidee Frem ceagel which wed | he turpa, tr his nt eaestio ovahrch ic. Tiotraver, 22 48 che trarsacsr@hl tiaat COurvel's ease Pad tie vary ESLENL. Ps ove counderscend ott, the por, wri, Poe Wes'cercall vas makzng 1s thit rescsren Tees agro cm, de 1 fay whether the origimal «esd, ta cedle ay che acre Tuma. vas C.rsta by the cits mr th. Bee Net | pare ree, LIPS we Si MET Ecyear to Urs vet, btn Pay te ee I Clsalcete fuhich er istiv - vo tesor 4 cok 5 prubsbly smehoo Curinge 6h te 'ec atbeo. t,o aa. te "LLP a ypre reed thn ob an ' thac pho 7 a SL pees to un te atta la ose tte ay ote? asp e e EG4 2 qed EPIS eee eye, roy leg t a . to aycd ll? Ie to woe 3 wee pet Tortteor, sd] e@ yeasuly care oF bez coer te Ut res Geahar ed, a voudi! Aare tee tea rou Tite nd ecd boon oeeet ehstho, aeelaig fe 4 to? >, 75 1° LOSS ple caute, n- welt inv cote mu rizplatevively. Thac te tho to nar oT Poe ce te ore, Wokled art cqdiag F + eritycie eho yt Fi ING, TL 1G rus to say ubeb rb oreo tm re Tas ¢ that the ceceased's smohing babit wei unere xl d, = pealonged by nis wer servies. The only @ecpiedus an smoking us that he said, on enlistesre on Ft Santee thao be enohed erat! ovgricuresr per d-,. Ppeounse Vee Or nis dire he said, in uw Sastary civ te 7 Sector; hed necome a mederale pipe fmen ft. phere al ag ee any Stiatetent ueeae by the deucesel as to cha opis emokrag in the porrod an beret, gecepe tee wu wobld saqgest thak bo comauncd co cmore Sugery the the peried betsvecn his enlushucue aul or "Ths bo og. Jife. Povecer, 2h would seon te us 6c bo ounlibedy nase s Of hoewan exnortence, thet ste oe vt omg tT og Save sntreasid Gurtng base vur yer my i moasca* evaier oc. Cite tones Vda ten tb a on, perce much concsried vith bie H--lit Trot Pos eurtng the wer, Berige rd yoy rte eth a G Garth po owereaonla. reaghee erty ~ 4 1 Che eta ee se ea on £ . Rees t. tarey EN eo bys Ak) ee nd 7 a. ' Ve ¢1 it a4 wn co. n a? i] v tra 7 7 eee voy t v vt a i ayy Lope r IPS0r whe! IL hey ovat bh Tes. £44 peeves ,ooay ts oan , : 1 : Loo omy Pp Lae t © ' < rey the rc ot vyharot ty the ss: 2ONOds cy s r BS whet wal 74 (p.5); YO apr pln , "Tpe role «uf th 7 frabunel] sgoule ner ( funev lon vee 9 Gerri? of mz evidence, clainant. li 13 he yond anzulficic.; (expert or the claims open Alnhoucu tit readloon Cistirect e ied}. Perry ag oCrna te sod guex andi ds... SOouna is Lven wiuerc | to rhe Te > ressonable ¢ t grounes. obherwrso} be Unik? Velo ot woete ov LEM ry Woe HAGOTE Soir ottity sind LU .T we . ct 4 a , eur bee 71 wo. ' ae pore fn ae a a ae ie ae i a a OO Le Bore Pa ty 2c) wy re f ' ann Fale MLC my an \ ja- Cis Fauna frau fe crores dyfasa, al ho«. jv msas ; ee ' fremal to be el tiahaes 1 - 5 as - ott that rac re rea Goss Nat cCoturee wig e fe iy H ts 7 taovvgkhs yd a ° Pwr e cr FO te ay Te mvt thar: +. ule, ca OO Os a ia Yon od, vet ooy.y Fe) cht vay Ty 1 ' al on 70 a res : , Vs ' gem ts : oye i) 7 ey t. ,e gare : c Vlooe ys t hoe Abe aay ' "oF 1 € i, wo sete te bound, as &@ macter of Law. tu find thac at cannot Le satis tied hoeyone cooton Ble da broth t there are insufficient grert ow uke eto, becadse OF tne ceaperct "rom ty oer, taal polnt ox view, OF Lhe Mere ab oyvadenss Ene ey ope ota | distinguished from tre clercs of craton. Prercd ore hy 7a tan 7, in the dictum from ertad We thank thaue our Cio. that there was no ree te by war service ari Tey ota Tribunal misdirectecé itself as to the of fect of fs. SoS the criticah years 2242 to E9°5. Wee slsben LL, re oc ac MWisunderscasd Proleerer Tereer|erti ts ove ene er Vo tu 7 Atself to discount the part inet swohirg woy beove ul yo. That criticism does ner Joes us to tue war char rn tedbea fy properjy @nrectine Lisetr, enuld hear e.thesy tlie , eonelusion as did the Traues-Ll acre. Vt felisve eaci 4! applicant's First subaiss.on wuce be rotcetid, Before turniag Loa che secur soot ss te ' Say soreching of the apelrrent ts ow. cies sane char an 4 ~ 4 . ' ra ' case wierve &@ Servicwtae Cost oor e's , tte ' ' was unknown. Fis cependone, a . PeCadse leo (8 NOD Hoos, be ct Cow, : , coat ' ' tro dvseage From .rrch blo odact cer moto ma ert ses, cos ho would reqeet ubeea Subruscaca hoe oi | ope lt LOE Cova navy Mel ml To Sloat tg rove tf ° ao bevond reason bie doubt ther cho cause could not free Poon veloced $0 sar service. We do not tink trar thot apocaach ourh: LO succced neorc. "e ace oF that opinion brecise of tin amocne OF ovicence which there df copecrning cho doce 2 Cte facaucel nistory and tar service, We woul concicrr sun ot gtmer?ti] eporcech tio be unhejotul and dongeraus. Th GOver-simplilies the probler and -e2eks te equzte the AuSttal.cn lLeqislation to thet an force 29 the tarteu Kingdom. In our opinion the decisions in cngland in Judi vy. Binister of Pensions (1966) 2 O.R. S80 end Coe v. Linister of Pensions (1967) 1 0.B. 238 have no applicetion in Mustialic. he now consider the aprlicaunr's second suPrisstion, Ore uf une wectters to be taken inky account in relatior ou that suriaig7ian is the misunders3steuding or Professec Tacters2il's cvidence just reierie€ te. Vho orher moth ms relted toon ate, Jn Summary, based upon a serier of Fan i98|s of tae Tribunal which, in the sbbosssion of the aupl.cate, are se phrased as to indicate that the 'Pribunal, hos achstcrdiny statements to the contrery eloswere an ihe ay fact gwepoce) an oes of proof u.an the copntic. 7 a:G pet beer. ee oe vse ous fata yet oxprotsed by the Ti)ounal rs Follows: We, = - fr a Pal . , ~ ye ' . se WO SLO woke Tart sm tie ows dere wick clrece; wer CatSsrd ec ounerti ., to onmt anvtd te an avomerborty cancer * Glres fs cry, pase Cauvc ctaecr bur an moO squat, Tartiene? wlly one te poymo te 1! 2. "thete IS ne evilewes "ot -ny Stren. war induged or othe.wite, aid produce snen an ecerIeratior in tht eose." m "Havang cecurd to al} the cvisenee, awe ate sutarfied that thoes Aad necn ne ai, client oo bhe en-momoer's dmerane mecha 29m or rhat on had sufferea Fron twavne deficicucy. bere is no eyidence whieh .e eccepe as showing ay relationship svtwoer isting deficiency ld thie ex mmbe:'s edenocerciite." 4. "There 28 no evidence that the site of cho ex-wenbper's -adencearciicia vase in en eres of Scag OL vuat there wes eny scacring of tre ex-meroer's Inng." 5. "There 1S no evidence thet his smoking r-bir resulted from any occurrence that bappcned during the pericd menrioned in cechion 191(1)(a) cf the Ack or arese out of on atiribatahic te Gis wer service. Sac ule iets (by. These findsuss apreat cotsrds the cvs of che Pritenal's deetsiow sfte: tt had comecsced 1ts fined ansdwris of tLe owilderle, bok nefore rt led corsinored? © .47 of the Bet icataon in eccorecnce with the vievs expressed py tné fidgnh Court in Law's case. Tne faindanes, which are interspersed with more detaticd discussion, are inticduced iy eno Tribunei vate che vords "(o} recowed our fandrigs™. in ovr G apolieani le correct in tho suemiscior ect by hex oc inset thet cho Wriourc) docs wenoerr .o be fhetar zee Fineél-ngs as tf eho nere the onis of oxi, pesitively that ceo cancer wee caused by var servic. vo Luank therzrcare thel tts EF creian faust bo Usted oe fone cor am fo owb F tie hisewheare mn the aseriier there are cleor INC lewIOns Cher the Trileest poorer dy ctl ac toe' relovory Tosislation e¢ Veog be aha Tic tare Ll, 4h, Laver ¢Bucer Tuatthher Landinis poss wely cretucuna cot Service of fF wanes, eer d atvetorer ure omy ra ar tie question of whether come unerown pe ckar wee gq menttanet ir 3 cause. Aagy ich poceibtlity wee said to boa feneifl o, tenuous. Orcher parts of Professor Tattersall's «evidence voir referrcd to. Amongst other things the Profercsor had said thac 1t was extremcly improbanle chat the @eceased's var Service was ¢ 7. Liologieally reiercd co Tang cence "tho chance was excrenaiy ew2li", Lone: UraeeSo0re Taecersall he LEON over aA a A court exercising cupervaisory jurisdi adnirisivcetive tribunal caught not lightly teterrero wiih 1t3 Gdecisione cven tf che cours feels that the ti abunett. Cuts = Ys fa) : ca) a =~ fea m a er i) " u e angvese ily have i dequsce 9 nol Lo inculge in @n cunreses . LL over-leatou.ly pacts ta tritune} up in the vay bt Jas oenrececet Tbe ste, Thet 76 -s particuler]y so whan tt aponoers preperty 10 Rew vneore oo tre jegsl frinecplen which 3b 45 co aresy. Uevertheless, «7 r m7 ticubled ohevu the vir, come hae OL lee a Hi r - ie) be a fa a) (* a In a tt a -rn oo - 78 - true thet 2f one is concerned vith the cuestion of wheihe: of noc something may have been caused by real or diet si possipniliv.ie:, ono way Lagivimately weckle the prioblrn fb deciding Guar sone rejevent faccor urs pocitively ost a cause. The very positiverncas of the decision cxctude, tre factoc 425 boing no more then teruous of fanciful. Bue Ff the Tribunal does approech the mactec jn tnis way it coTchr,; notwithstanding the Jlatitvde in langsage thet it should properly be allowed, be careful to kee. in mind what it jis that 1b ts abour. ft rust be at puins to avoid vhe dan. r of Cur winds have fluctuated on what the outcouw of this submission should he. Hoeving reflecred on the matecr ve have reachee the conclusion that the tiihunal's findings nay weil contain the seeds of error. Pacn we add into che balarce its misunderstanding of Professor Taltero It's evidence earlier referred to, we rezch the opinion that tic Fribunal cid misdirece itsel£ in the woy than it aporacchie? the matters with che resele thet dts dacicion sheuld beouw t aside and t!* mactter remitted to che Triperci te te hess 4 a decided ugain. Ve express no sew ap toa wh eunesr Lhe Vrvhe 7 should hear furcher cvsdence. Teac FH a rlalles wiih e fh ral ae v QO r n c In a for : would Leave Lo it : 4 . ' . ' coir Hep gh owt ie , oy , t . yo a pat ra Cy Ce a . 7 7 1 . Seer fs Fy Pelt Cn »! ae fy ' . IN THE FEDERAL COURT OF AUSTRALIA ) . ) a, WESTERN AUSTRALIA DISTRICT REGISTRY ) W.A. No. G23 of 1981 ) GENERAL DIVISION ) ' ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: i i y . : BETTY LENNELL i - Applicant i is 7, and REPATRIATION COMMISSION - Respondent re - U3 CFEBRUARY, 1982 - + on Kos petannientiiets REASONS FOR JUDGMENT ' ="TOOHEY J. The Administrative Appeals Tribunal Act 1975 s.44 confers on the Federal Court jurisdiction to hear an appeal from the Administrative Appeals Tribunal ("the Tribunal") "on a question of law". , : In this appeal the applicant challenges a decision of ; the Tribunal which upheld the rejection of her claim for a ' war pension on the ground that thedeath of her husband Edward John Lennell was due to his war service. : It may be useful to set out in summary form the chronology of events associated with the making of the claim. This summary is in large part borrowed from the reasons for decision of the Tribunal. we ee eee eee Date 10 January 1978 21 February 1978 ll April 1978 28 April 1978 17 Mey 1979 25 October 1979 28 March 1980 2 May 1980 22 October 1980 Event The applicant's claim was disallowed by a Repatriation Board. The applicant appealed to the Repatriation Commission against the Board's decision. The Commission disallowed the applicant's appeal The applicant appealed to a War Pensions Entitlement Appeal Tribunal. Further evidence was placed before that Tribunal which referred the further evidence to the Commission pursuant to s.64(4) of the Repatriation Act. The Commission considered the further evidence and adhered to its previous decision. Pursuant to s.48 of the Repatriation Acts Amendment Act 1979, a Further appeal by the applicant came before the Repatriation Review Tribunal as if it were an application under s.107VC of the Act. During that hearing the applicant's representative made a request under s.107VZZB(3) of the Act that the decision of the Commission be referred for review by the _Administrative Appeals Tribunal. The President of the Repatriation Review Tribunal referred to the President of the Administrative Appeals Tribunal the decision of the Repatriation Commission with a request that the Administrative Appeals Tribunal review that decision. The President of the Administrative Appeals Tribunal directed a review by that Tribunal of the decision of the Repatriation Review Tribunal. The hearing before the Administrative Appeals Tribunal began. 26 May 1981 The Administrative Appeals Tribunal delivered its decision, affirming the decision of the Repatriation Commission. 23 June 1981 The applicant lodged notice of appeal from the decision of the Administrative Appeals Tribunal to the Federal Court. 18 September 1981 The hearing of the appeal to the Federal Court began. In Law v. Repatriation Commission (1979-80) 29 ALR 64, also concerned with a claim to a war widow's pension, I spoke of the "unsatisfactory situation of such achainof review procedures" (at p.67). Mrs. Lennell's appeal reached the Federal Court by a somewhat different route to that traversed by Mrs. Law. But it too gives cause for concern whether such a costly and time- consuming line of procedures cannot be streamlined. This appeal concerns several questions that were argued in Law's case. At the time of hearing, the decision of the Full Court of the Federal Court in that matter (Repatriation Commission v. Law (1980) 31 ALR 140) was under appeal to the High Court. The present appeal to the Federal Court was necessarily argued onthe basis that the decision of the Full Court in Law's case was correct, the respondent however reserving all rights pending the High Court's determination. On 16 October 1981 the High Court delivered its decision, dismissing the appeal of the Repatriation Commission. Although it will be necessary to refer to the reasons of the High Court in some detail, it is enough for present purposes to say that the Court upheld the decision and reasoning of the Full Court, thus making it unnecessary for the present appeal to be , reargued. The present applicant was obliged to identify the questions of law to be raised on her appeal. This she did in some detail. I am satisfied that as formulated and as argued the appeal satisfies the requirements of s.44 of the Administrative Appeals Tribunal Act so as to ground the jurisdiction of this Court. Put broadly, the questions of law are whether the Tribunal correctly applied a number of sections of the Repatriation Act, whether it correctly applied the decision of the Federal Court in Repatriation Commission v. Law and whether, as a matter of law, the Tribunal could properly have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the appellant's claim. The grounds of appeal reflect those questions of law, contending in the main that on the evidence before it the Tribunal could not properly have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the appellant's claim. The Tribunal had before it a great deal of material including files relating to Mr. Lennell's war history and subse- quent medical treatment; as well it heard from a number of medical witnesses. While it is necessary to examine some of this material and to mention same of the evidence, the requirement that the appeal can succeed only if, in effect, the Tribunal was wrong in law makes it unnecessary to refer to the evidence in great detail or to analyse each finding of the Tribunal. The Tribunal's reasons are expressed in a lengthy judgment. Mr. Lennell was born on 19 February 1920 Between 24 August 1942 and 11 September 1942 he was in the Australian Army; he was then discharged to enlist in the Royal Australian Air Force. His enlistment in the RAAF lasted until 11 December 1945 and included service in Australia and in the United Kingdom. He had begun smoking cigarettes before enlistment and continued to smoke during his service, While in the Forces Mr. Lennell received medical treatment for a variety of complaints including inpatient treatment for tonsillitis. On 22 October 1973 he lodged a claim for medical treatment and pension, based largely on anxiety and tension and pain behind the nose and eyes and temple, sometimes accompanied by pain in the neck and shoulders. He also referred to "the odd pain around the heart and chest over the years". He began to take valium to cope with the bouts of tension. [In December 1973 and February 1974 Mr. Lennell complained of chest pains. He sought but was refused by a Repatriation Board a pension in respect of this condition. In May 1974 he appealed against the Board's decision to the Repatriation Commission but did not proceed with the appeal. ~ On 9 May 1977 Mr. Lennell was admitted to Sir Charles Gairdner Hospital where he died on 9 June 1977. No autopsy was performed but the diagnosis of his death was in these terms: "Adenocarcinoma right lower lobe bronchus complicated by pleural effusion, hepatic secondaries, deep vein thrombosis and ischaemia of the left foot prior to death". Until the matter reached the Tribunal, the only medical evidence tendered in connection with the applicant's claim had been reports from three doctors which were submitted by the applicant. These reports appear almost in their entirety in the reasons for decision of the Tribunal. un Dr. Uarris, Mz. Lennell's general practitioner, referred to Mr. Lennell's cause of death as adenocarcinoma of the Lung "which is a form of carcinoma, which although statistically higher in occurrence in smokers, nonetheless occurs in non-smokers, so that this aspect of the mattexr might reasonably be dis- regarded. The only other feature in his history which may be of significance is a long history of URTI (upper respiratory tract infection) and ¢ removal of tonsils, and this may have presumably had some effect on his immunization mechanism". Dr. Harris's conclusions were expressed in these terms: "Where a man dies of a condition, of which the cause is not known, it is quite impossible to say with a certainty, that something during his war service may not have caused or played a part in the production of the condition. As a doctor, I am quite unable to state that Mr. Lennell's death was not due to war service, and under these circumstances feel that Mrs. Lennell's claim must be accepted". The report of Dr. Demetrius, a departmental medical officer, detailed Mr. Lemnell's condition and concluded: "In my opinion this man developed cancer of the lung in 1977 and this rapidly spread and caused his death. He was a pipe and cigarette smoker and this was a risk factor. The cancer arose in & predisposed male and is in no way connected with service conditions or ailments (U.R.T.I., sinusitis and tonsillitis), nor is it related to anxiety depression from which he suffered." The report of Dr. H.R. Elphick, whom the Tribunal described as "a highly qualified chest physician! was as follows. "In answer to your question regarding the cause of Adenocarcinoma of the Lung, I advise that adenocarcinoma is one form of malignancy in the lung which occurs in people who have never smoked a cigarette. The incidence of adenocarcinoma is slightly higher in smokers than in non smokers but there is no doubt that some other cause must be active in the production of this form of malignancy. There is very strOng statistical evidence to the effect that squamous carcinoma of the lung is almost entirely due to cigarette smoking but the same cannot be said of adenocarcinoma." —_ Although none of these reports was, in medieal terms, favourable to the applicant's contention that her husband's death was related to his war service, she argued before the Repatriation Commission that, the cause of death being unknown, the evidence created a real possibility that something in the deceased's war service contributed to or was a factor in the development of the adenocarcinoma. In counsel's words: "The possibility cannot be excluded, and that is a real possibility". It will be necessary to say something about this submission particularly in the light of Law's case, but that is best done after a consideration of the additional medical evidence presented to the Tribunal. That evidence was in the form of oral testimony from four highly qualified specialists called by the respondent. Their evidence was detailed; it was discussed and quoted from at some length by the Tribunal in its reasons for decision. For the most part I need do no more than summarise the Tribunal's analysis of the evidence. Professor M.H.N. Tattersall, Professor of Cancer Medicine at the University of Sydney, identified cancer as an "insult™ to a cell which requires a further process described as "promotion" before the cell becomes a cancer cell. In terms of ee ey what Prof. Tattersall described as the first insult, cigarette smoke is an important factor. As regards adenocarcinoma of the lung, the other factor is lung scarring or damage to the lung. In his view there was no way of knowing when the first insult to Mr. Lennell's lung occurred. The "lead time" could be as high as 35 years but it was not possible to implicate Mr. Lennell's smoking between 1942 and 1945 as having anything to do with the development of this particular cancer. There was no relationship between psychological factors and carcinogenic insult. There . was nothing in the evidence to suggest that Mr. Lennell had lowered immunity. Prof. Tattersall thought it "extremely improbable that his war service was aetiologically related or contributory to his lung cancer ... I regard the chance as extremely small". Nevertheless he was not prepared to exclude the possibility that war service was related to the development of the condition of lung cancer or that an event during war service was responsible rather than war service itself or that the cancer may have happened during that time frame. However he thought it "extrenely unlikely". Dr. P.J. Zilko, a clinical immunologist at Royal Perth Hospital and lecturer in immunopathology at the University of Western Australia, thought it improbable that Mr. Lennell suffered from immuno-deficiency of clinical consequence. In his view there was no relationship between tonsillectomy and suppression of immune function. His conclusions were in these terms: "1. It is improbable that this patient suffered from immuno deficiency of clinical consequence. 2 it is most improbable that the carcinoma of the lung that this patient suffered from was dua to the mild immuno deficiency that it is claimed was present". Dr. A.B.X. Breslin, a specialist in chest diseases and consultant to the Department of Veterans Affairs, thought that most malignancies develop in smokers some 15 to 25 years later "suggesting ... that the lead time is of that order ..." However there was evidence that the lead time ° was of shorter duration. There was no evidence that Mr. Lennell had lower immunity or immune suppresssion on service or indeed that either led to cancer. He could find no evidence from Mr. Lennell's file that on service there was any probable or possible cause of carcinoma. The lead time was against service being related to the subsequent development of the malignancy. Dr. B.K. Armstrong, director of the National Health and Medical Research Council Research Unit in Epidemiology and Preventative Medicine in the Department of Medicine at the University of Western Australia, thought that statistically there was something like a 70% chance that smoking was the major cause of tir. Lennell's adenocarcinoma. There was no acceptable evidence that Mr. Lennell] suffered from immune deficiency from whatever cause. He could find nothing in Mr. Lennell's file and history to lead him to believe that his war service was a factor in the development of his adenocarcinoma. wane ee eee + Beving referred to the medical evidence, the Tribimal went on to consider what conclusions should be drawn from that evidence and then to deal with various submissions put to it, Et is the way in which the Tribunal approached the material before it that lies at the heart of this appeal. in order to determine whether the Tribunal erred in that approach, it is necessary first to see what was said by the High Court in Repatriation Commission v. Law (1981) 36 ALR 411. The members of the High Court were unanimous in dismissing the Repatriation Commission's appeal. Gibbs CJ, Stephen and Mason JJ concurred in reasons delivered by Aickin J; Murphy J delivered a separate judgment. After a consideration of the material provisions of the Repatriation Act, Aickin J said of the Repatriation Review Tribunal: "The Tribrnal is required to set aside a decisior. refusing a claim unless satisfied beyond reasonable doubt of the negative proposition that there were insufficient grounds for granting the claim or application." (at p.418) Speaking of the case in hand, Aickin J said: "Aithough the medical reports «ere in conflict, no challenge appears to have been made to the standix:g or expertise of any of the medical experts. In that situarion it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reporcrs favourable to the applicant were wrong." (at p.423) Uis HMonour's teasons concluded with these words: "Accordingly the submission that s.107VH is not an 'evidentiary provision' should be rejected, I am satisfied that the operation of that section does not involve a two-stage process and that it requires thet, in relation to any fact necessary to establish entitlement, the Review Tribunal must be satisfied beyond ceasonable doubt that the fact does not, or did not, exist before it can refuse an application or dismiss an appeal by a claimant "' (at p.424) Section 107VH imposes on a Repatriation Review Tribunal the obligation of setting aside a decision refusing a claim "unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim... Section 47(2) of the Act imposes a similar obligation on the Repatriation Commission and upon a Repatriation Board. Murphy J also emphasised that the Act "thus effectively imposes on the Commission an onus of disproof, or proof of a negative, beyond reasonable doubt". (at p.412) His Honour commented: "A conflict of testimony (expert ov otherwise) does not require that the claim be upheld (any- more than in a criminal trial it would require an acquittal) although often it would have that result. Nevertheless, it is not enough that the Tribunal prefer the evidence (including opinion evidence) which tends to disprove the claim. Even if it rejects the evicence in favour of the claim, the claimant ts entitled to succeed unless the Tribunal is satisfied beyond reasouable doubt that there are insufficient grounds for tbe claim." (at p414) The reasons in Law's case are of general application to claims made under the Repatriation Act although the decision of the high Court to uphold the judgment of the Federal Court was, of covrse, related to the facts of that case. What the judgment of Aickin J does emphasise is that ac no stage does any onus of prevf lie upon the claimant. A eleimant is entitled to succeed mless the relevant tribunal is satisfied boyond reasonable doubt that a fact necessary to establish entitlement did noc oz does not exist. It follows that for a tribunal or court ro review the material before it with a view to determining to what extent that material supperts the claim is to take a wrong approach and one that must almost inevitably iead to error. In essence this is the complaint of the applicant against the decision of the Administrative Appeals Tribunal. Whether that complaint is justified is for this Court to determine. At the risk of doing some injustice to the reasons for judgment of the Tribunal, its conclusions may be summed up in this way. L. Stress, war caused or otherwise, did not initiate Mr. Lenneil's cancer. 2. Stress may, in particular patients with a terminal illness, accelerate death but there was no evidence that any stress produced such an acceleration in the present case. 3. There had Seen no impairment of Mr. Lennell's immunc mechanisa and uo evidence that he suffered from immuno-deficiency. 4. There was no evidence showing any relationship between immuno-Geficiency and Mr. Lennell's adenocarcinoma. Even 1f Dr. Harvis's report be regarded as some opinion evidouce to this effect, his opinion or theory is untenable. 10. There was no evidence that the site of Mr. Lennell's adenocarcinoma was in an arca of scar or that there was any scarring of his lung. Mr Lennell's smoking, other than smoking between 1942 and 1945, may well have been a factor in causing his adenocarcinoma. Mr. Lennell had a smoking habit before anlistment. There was no evidence that that habit was decreased, alrered or prolonged by his war service or that his smoking habit resulted from any occurrence during his service or was attributable to his service. . It was only remotely possible that an unknown factor causing or contributing to the adenocarcinoma was itself caused by or related to war service so as to constitute an occurrence in terms of the Act or that it arose out of or was attributable to war service or would answcr the description of an accident or was due to a disease or infection that was contracted and would not have been eofitracted but for war service ox for changes in environment consequent upon war service. "We consider any such possibility 1s fanciful or tenuous". Mr. Lennail experienced good health wnti] the sudden emergence in 1977 of adenocarcinoma, an aggressim tumor, causing his death within a month of admission to hospital. The adenocarcinoma and death.of Mr Lennell and his period of enlistment and war service were unrelated. ll. Any "Inenit"" presipitating carcinoma must heve been Leta, than the termination of Mr, Lermmell's service and in no way related to that service. The Tribunal concluded its reasons with these words "We are satisfied beyond reasonable doubt there is no connection ox relatiouship between the ex-membor's adenocatcinoma or death and the period of his enlisiment or his war service. Any such connection or relacionship could only be dcecribed as fanciful or tenuous. We have borne in mind the provisions of section 47 of the Act. We are satisfied beyond reasonable doubt that there are insufficient grounds for granting the Applicant's claim." It is true that in its reasons for decision the Tribunal appears at times to be weighing the evidence for and against the applicant. It is also true that in some passages the Tribunal appears to be looking for evidence as if it could not uphold the claim unless satisfied that certain elements had been made out. Page 47 of the reasons contains examples of this. But the reasons must be looked at in their entirety and rot subjected to a piecemeal criticism which divorces passages from their context. Gy What was required to reject the claim was that th Tribunal be satisfied beyond reasonable deubt that any faccs necessary to establish entitlement to a pension do not oc did not exist. In my view, when the reasons are looked at in their entirety, the Tribunal was so satisfied aithough it might vell have chosen language more consonint with the approach vaken in Law's case, both by the High Court and the Federal Court. On a profes analysis of the Tribunal's reason I am satisfied that at each relevant step it considered the wee ee tee De PER Feline WIE ie ee ee aS ee ee whe wie? Beaihizee hie rtoe te a! fete genta pe OE Ta Bata tts Ee PNAS EE he tien peer " a material before it and was satisficd beyond reasonable doubt that there were insufficient grounds for granting the claim, The Tribunal was satisfied that scress did not initiate Mr. Lennell's cancer, that it did not produce an acceleration of his death, that there was no impairment cof his immune ta mechanism, that he did not sutfer from immune-deficiency, that the site of his adenocarcinoma was not in an area of scar, that there was no scCatriing of his Lum that he hed a smoking habit is. before enlistment which was not increased, altered or prolonged by his war service, and that if any unknown factor caused or contributed to the adenocarcinoma it was "only remotely possible" that such a factor was war caused or relatec to war service. I do not think it is inconsistcnt with Law's case to say that it is only remotely possible that an unknown 1b er SANT factor was war caused or related te war service and then go on, as the Tribunal did, to conclude "We consider any such pussibility as fanciful or tenuous" To say that the aetiology of a disease is unknown does not mean that logically war service cannot Ee. excluded. In a particular case the cause of che fatal condition may be unknown but on the material avazlable it is possible to be satisfied beyond reasonable doubt chat at was not #tir to war service. Dr Harris' cenclusicrs upon which the applicant placed much reliance is ag much an exercise in sy!logistic reasoning as a medical opinion. Tix 'lribunal was entitled Lo reject those conclusions and it did so. Ouce those conclusions were rejected there was no medical opinion standing in the way of the Tribunal being satisfied beyond reasonable doubt that Mr. Lennell's death was net due to war service