yb hee Ib me Repatriation - war widow's pension - death of former member of Armed Forces from motor neurone disease - aetiology of disease unknown - whether death arose out of or was attributable to war service - onus of proof - real or rational possibility of relationship between war service and death - effect of decision of single Judge on Tribunal Repatriation Act 1920 s.107VZZH REPATRIATION COMMISSION v. BETTY EVELYN COMPTON No. WAG 49 of 1983 Toohey J. Perth 20 February 1984 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WAG 49 of 1983 ween eu BETWEEN: THE REPATRIATION COMMISSION Applicant and BETIY EVELYN COMPTON Respondent QO R D E R JUDGE MAKING ORDER 3 Toohey J. DATE OF ORDER 3 20 February 1984 WHERE MADE 3 Perth THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Repatriation Review Tribunal qiven on 24 August 1983 be set aside. 3. The respondent's claim be remitted to the Tribunal for determination in accordance with these reasons. "a tJ There be liberty to the parties to apply as to the costs of the appeal. IN THE FEDEPAL COURT i OF AUSTRALIA , WESTERN AUSTRALIA ' DISTRICT PEGISTRY ! GENEPAL DIVISION flo. WAG 49 of 1983 BETWEEN: THE REPATRIATION COMMISSION Applicant and BETTY EVELYN COMPTON Respondent CORAM : TOOHEY J. 20 February 1984 REASONS FOR JUDGMENT The operation of certain provisions of the Repatriation Act 1920 continues to give rise to difficulties. This appeal concerns the entitlement to a pension under Division 1 of Part III of the Act of Betty Evelyn Compton, the respondent. Mrs. Compton's husband, Cecil Frank Compton, who was a member of the Forces as that term is defined in the Act, died on 15 April 1982. A medical report, furnished by Dr. A. J. Berman pursuant to s.48 of the Act, identified as Mr. Compton's cause of death motor neurone disease. According to Dr. Berman: lo "The consensus of expert modern medical opinion is that motor neurone disease 1s a degenerative disorder of unknown aetiology". On 19 July 1982 a Repatriation Board refused Mrs. Compton's claim for a pension on the ground that it was "satisfied, beyond reasonable doubt, that there are insufficient grounds for allowing the claim that the member's death was related to his service". Mrs. Compton appealed to the Repatriation Commission against the decision of the Board and on 16 November 1982 the Commission dismissed that appeal. The decision of the Commission was in fact the decision of its Delegate who concluded his reasons with this passage: "As Delegate of the Commission I am satisfied, beyond reasonable doubt, that there are insufficient grounds for allowing the widow's appeal. As required by Section 47 of the Act the appeal is therefore disallowed". In accordance with Part IIIA of the Act Mrs. Compton sought a review of the decision of the Commission by the Repatriation Review Tribunal established by the Act. The Tribunal set aside the decision of the delegate and substituted its own decision that: iy oe on and from 16 April 1982, and ple suant to Section Lol ot the Fepatriation Ack, che Commonwealth 1s liable to pay ta Khe dependants of Cecil Frank COMPTON, sncluding the Applicant, Betty Evelyn COMPTON. the pension payable under Division 1 of Part III of the Repatriation Act, on the death of a member of the Forces". This appeal is brought by the Repatriation Commission pursuant to s.107VZZH of the Act. I have, in an earlier decision (Law v. Repatriation Commission (1980) 29 ALR 64), commented on the "unsatisfactory situation of such a chain of review procedures" (at p.67). It is unnecessarily consuming of time and expense. An appeal to the Federal Court from a decision of a Repatriation Tribunal is, by reason of s.107VZZH(1), on a question of law. The respondent did not challenge the proposition that the appeal was on a question of law and there can be no doubt, having regard to the reasons for decision of the Tribunal, that the appeal concerns the meaning and effect of certain sections of the Act and the import of decisions of this Court and of the High Court. Although it is the decision of the Repatriation Review Tribunal and not of the Delegate that 1s challenged in this appeal, some reference must be made to the latter if only because of the Tribunai''s criticism of the reasoning that led the Delegate to disallow Mrs. Compton's claim. It should be noted that although the proceedings cefore the Delegate were by way of appeal a against a det nation of a Fepatriation S&oard, Division III of oY rm I Fart [LIA of rhe Act tonterred on the Repatriation Review Tribunal power to "review" the decision of the Commission. Section 107VH obliged the Tribunal c-o have regard to the evidence that was before the Commission "and to any further evidence before the Tribunal in the proceeding that was not before the Commission ... but would have been relevant to the making of a decision in the proceeding before the Commission ...". In the present case there was material before the Tribunal, in the form of medical literature, that was not before the Board and not before the Delegate. The Tribunal found it unnecessary to consider this material. As will appear from these reasons, I also find it unnecessary to deal with this evidence. In essence, the Delegate's approach was to look at the medical evidence, to note that motor neurone disease 15 a progressive disease of the spinal cord (the actual cause of which remains unknown though it is considered a deqenerative condition), and to conclude that a review of the records "failed to locate anything which might suggest any causal association with the member's service". I should add one other passage from the Delegate's reasons: "T am firmly of the view that a reasonable doubt cannot stem from possibilities which are so remote as to be unreal. Having been unable to locate anything which might suggest even a tenuous association with the deceased's service. I consider that Mrs. Comptan's suagested assoec1raticn 1s toa tenuous to eptertaia". In my view, the Tribunal's trenchant criticism of the Delegate's reasons shows a misunderstanding of the way 1n which the Delegate approached the matter. That is not to say that the Delegate was necessarily correct in his conclusion; it is simply to say that the Tribunal''s attack on the approach he took was illfounded. The relevance of these matters for this Court lies in the appellant's submission that the Tribunal was thereby led into error. In dealing with the Delegate's statement that the Act required him to be satisfied beyond reasonable doubt that there was no connection between Mr. Compton's service and his death, the Tribunal commented that this proposition "fails to emphasise that it is for the Repatriation Commission unconditionally to establish the absence of such a connection beyond reasonable doubt". I am not sure what is meant by "unconditionally" in this passage but I can find nothing to criticize in the Delegate's proposition, taken on its own or in context. However the Tribunal's stricture is itself open to criticism, particularly when read with certain other passages in its reasons for decision. It is apparent from remarks such as "unless the Repatriation Commission demonstrates beyond reasonable doubt, by evidence placed before the Tribunal ... " and "if the Commission fails by t fay evidence toa discharge the onus ..."" that the Tribunal was of | lea the view that 1t could be satisfied beyond reasonable doubt that there were ainsutficrent grounds for granting the ciaim tthe language of s.lO7VH(2)(a)) and that the Commission could discharge the onus cast upon it by the Act. only by evidence led on behalf of the Commission. That 1s not the situation under the Repatriation Act. In Repatriation Commission v. Bishop (1983) 48 ALR 461 at p.468 I discussed the scheme of the Act for dealing with claims. I shall not repeat what is said there, except to emphasise that the process is not an adversary one. Rather, the Board is obliged to investigate all the material available to it. As a result of its investigation the Board may be satisfied beyond reasonable doubt that there is no connection between the death of a member of the Forces and his war service. From the same material, the Commission (on appeal) or the Tribunal (on review) may reach the same conclusion. Of course the Board may not be so satisfied. The fact that the cause of death is unknown does not affect that approach though it may call for a particular analysis of the material. Again, the Tribunal seems to have misunderstood what was said in Bishop's case, particularly with reference to the judgment of the Full Court of the Federal Court in Repatriation Commission v. Law (1980) 31 ALR 140 and the decision of the High Court in Repatriation Commission v. Law (1981) 36 ALR 411. The Tribunal stated that 16 did nut accept: see zter statement in the Federal Court's decision in Bishop that a statement appearing in the majority judgment in Law was to be interpreted as saying that an Applicant had to lead evidence of a 'real or rational possibility'". That 15 not what was said in Bishop's case. No mention was made of an applicant having to lead evidence. Indeed [I commented at p.466: "The applicant was at pains to avoid any suggestion that before a Board, the Commission or the Tribunal any onus, legal or evidential, lay upon a claimant. Any such suggestion must be rejected, having regard to ss. 47(2) and 107VH of the Act as considered in Law's case". What I sought to do in Bishop's case was to examine certain decisions of this Court and of the High Court with a view to explaining that in the material before the particular tribunal there must be something pointing to a possibility, real as opposed to fanciful, of a connection between death and war service. If there is not, the tribunal is likely to conclude that it is satisfied beyond reasonable doubt that there was no relationship between the war service and the death. Where there is evidence to support a connection between death and war service, the onus cast by the Act upon the Commission would ordinarily lead to a eonclusion that tne onus had noc been satisfied "unless the evidenc wo eointinag to a cannection between death and war service could be dismissed as merely fanciful" iat p.467). Where the aetiology of a disease is unknown the same principle 15 1n operation but its application may be somewhat different. Where the cause of the disease from which an ex-serviceman died is unknown, it does not follow as a matter of law that the tribunal cannot be satisfied beyond reasonable doubt that the disease was not attributable to war service. In many cases that, no doubt, will be the conclusion reached. But ina particular case the tribunal may decide that the evidence is against the disease having its origin as early as the war years or against it having an origin having anything to do with war service or any circumstances connected therewith. A conclusion by a tribunal that it is satisfied beyond reasonable doubt that the disease was not attributable to war service may, in the particular circumstances, be a proper conclusion. See Lennell v. Repatriation Commission (1982) 4 ALN No. 29. Bishop's case was referred to with approval by Beaumont J. in Repatriation Commission v. Morcombe (unreported decision delivered 19 September 1983) and by Northrop J. in Repatriation Commission v. Evans (unreported decision delivered 21 December 1983). aw Part IIIC of the Act deals with references and appeals from the Pepatriration Review Tribunal to the Federal Court. References and appeals are conditioned by the existence of a question of law but it is the clear intention of the Act that where an appeal is ona question of law the Tribunal 1s bound by the decision of the Court. When there is a decision of a single judge of this Court relevant to a matter before the Tribunal, it is the responsibility of the Tribunal to give effect to that decision unless 1t has been overruled, expressly or impliedly, by a decision of the Full Court of the Federal Court or by a decision of the High Court. If this is not done there will be added to the system of review procedures under the Act the further ogre of uncertainty. In my view, 1n the present case the Tribunal not only failed to apply Bishop's case but misunderstood the import of that decision. The question remains however - did the Tribunal, in exercising its function of reviewing the decision of the Delegate, reach a decision in accordance with the Act? The appellant argues that the Tribunal failed to do so and seeks an order that the matter be remitted to the Tribunal for rehearing in accordance with law. As I said earlier in these reasons, the scheme of the Act for appeals and reviews is complex and time consuming. I am reluctant to add to that complexity by remitting a matter to the Tribunal but in the present case I feel obliged to do so. The 10, Tribunal's approach was so conditioned by its view that the Commission must lead evidence to discharge the onus cast upon it and by ats misunderstanding of Bishop's case that 1t 1s not possible to say with certainty that it would have reached the same decision by applying the correct test. Claims before the Commission are not to be determined by the mechanical application of some formula. It is necessary to examine all the evidence available and then to determine whether, on that evidence, the Repatriation Board or other tribunal concerned 1s satisfied beyond reasonable doubt that the death of the member of the Forces was not attributable to war service. If the tribunal 1s not so satisfied the claim must be allowed. In making that determination the tribunal should have regard to possibilities, so long as they are not fanciful. In the circumstances the appeal must be allowed and the matter remitted to the Repatriation Review Tribunal for rehearing in accordance with law. I certify that this and the nine preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey Waar Kevena = Associate Dated: 20 February 1984 —_—