CATCHHORDS ROFATRIATION - pension - former mowber of Royal Australian Air Force suffering from essential hypertension - stress suffered during period of war service and d=velopment of consequential anxiety neurosis - whether incapacity ayising out of war gevvice ~ Tribunai's farlure to proviae® adequate reascas constit. ing erroc of law - statutory standard of proof - Tribunal required to be satisfied beyond reagonable douk™ of a negative - proposition that Tribunal chould be satisfied beyond reasonable doubt that there is no connection between war service and incapaclty unless there is something in material pointing toa possibility real as distinct from fanciful of such a connection which is not disproved by other matertal not a principle cf law of general application - "real" possibility of existence of fact may be left open on material although nothing in matertal pointing to tnat possibility - nature of statutory process - whether investigatory ~ difficulty of obtaining satisfaction beyond reasonable doubt in the face of confiicting expert opinions. Repatriation Act 1920, 33. 23, 24Aa, 24AA(1)(b), 24AB, 24Ab(3)(a), 47, 4712), 48, 101, 101(1)(b), LOL(IA), 101(2) (bd), LO7VG, 107VG(b), LO7VH, LO7VH(2Z), 1O7VZ, 107VZ2ZB Administrative Appeals Tribunal Act 18975, sub-s. 43(2) Inceme Tax Assessment Act 1936, 5.190 JOHN DAVID O'BRIEN V. THE REFATRIATICGN COMMISS [OM (No. NSW G64 of 1983) SWEENEY, KELLY AND FITZCERALD Jd. BRISBANE Tl APRIL 1984 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) NO. G.64 OF 1983 GENEPAL DIVISION ) ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN ; JOHN DAVID 0' BRIEN Appellant AND: THE REPATRIATION COMMISSION Respondent ORDER JUDGES MAKING ORDER: SWEENEY, KEELY & FITZGERALD JJ. DATE OF ORDER: 11 APRIL 1984 WHERE MADE: SRISBANE THE COURT ORDERS THAT: l. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal dated 15 March 1983 be set aside and the appellant's claim be granted. 3. The respondent pay the appellant's taxed costs of and incidental to the appeal. IN TiiE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NO. G.64 of 1983 ) GENERAL DIVISION ) On appeal from the Administrative Appeals Tripunal Between: JOHN DAVID O'BRIEN Applicant and THE REPATRIATION COMMISSION Respondent Coram: Sweeney, Keely and Fitzgerald JJ. Place: Brisbane Date : 11 April, 1984 Reasons for Judgment Sweeney, J. This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 15 March 1983 affirming the decisions of the Repatriation Commission ("the HS rae ee ween ee eee eRe ee ~ ot ose Commission") dated 28 October 1975, 27 October 1976, 17 May ® 1977, 24 November 1977 and 2 June 1978 disallowing the applicant's appeal against a decision of the Repatriation Board to disallow nis claim for a pension pursuant to the provisions of the Repatriation Act 1920 ("the Act" un respect of a condition of essential hypertension. S.101 of the Act provides as follows: "(1) Upon the incapacity or death - (a) of any member of the Forces who was employed on active service, whose incapacity or death has resulted from any occurrence that nuppened during the period from the date of his enlistment to the date of the termination of his service in respect of that enlistment; or (b) of any member of the Forces whose incapacity or death has arisen out of or is attribucable to his war service, the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division 1: Provided that - (a) (b) (c) (da) (e) .... (1AA) ... (1A) For the purpose of paragraph (b) of sub-section (1) but without affecting the generality thereof, the incapacity or death of a member shall be deemed to have arisen out of his war service if it was the result of an accident that happened to him while travelling directly to Teen neha oe ree meena ae " or from his place of employment on war service or was, in the opinion of the Commission, due to an accident that occurred or to a disease or an aunfection that was contracted, and that would not have occurred or been contracted but for his being on war service or but for changes in his environment consequent upon his being on war service. (2) Wotwithstanding that, in the case of a member of the Forces, who, after his enlistment, served in camp in Australia for at least six montns or was employed on active service, the origin or cause of his incapacity or death existed prior to his enlistment, then, if in the opinion of the Commiecsion or a Board - (a) the incapacity from whicn the member 158 suffering or from whicn he has died has been contributed to in any material degree, or has been aggravated, by the conditions of his war service; and (b) wee, the Commonwealth shall, subject to this Act, be liable to pay to the member or his dependants, or poth, as the case may be, pensions 1n accordance with Division 1. (3) (4)" A Ful] Court of this Court in Law's case 31 ALR 140 (affirmed on appeal by the High Court 147 CLR 635) considered the meaning of the expressions "has arisen out of" and "is attributable to" in s.101 of the Act. The court said (at p.150): "In s.101(1)(b) the words "arising out of" require a consequential relationship of the incapacity or : death with the service out of which at is said to arise, Tt 1s nol useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or ee en pa ee pene 2 ee we ee eee ee vocen- a. te ven =e so eek ok ee ee ee ee ee "proximate" or by saying it connotes a "real", "sole" or "dominant" cause. The Act does not say death wnich 1s "caused by" or "results from" his war service - phrases which might connote a proximate causal. relationnip. 'the expression "arisen ont of" is satisfied if some less proximate causal relationship 1s established. Of course, a suggested relationship which us fanciful is nok sufficient; and a suggested relationsnip may be so tenuous as to preclude its consideration as answering the deseription "arisiny out of". The court also said (at p.151): "Tt seems clear that the expression "aitributable to" in gach case involves an element of causation. The cause need not be the sole or dominant cause: at is sufficient to show ""atlributability" if Lhe cause 1s one of a number of causes provided it is a contributing cause. Under s.1U1l(1)(b), st as sufficient to show "attributapility" 212f a member's war service is a contriputing cause to the incapacity or death in respect of which the claim is made." Aickin J. in Law's case discussed the amendments made to 3.47 by Act No. 56 of 1977. We said (at p.642-644): "Prior to the 1977 amendment, s.47, which had been enacted as s.39B in 1943, was as follows:- '(1) The Commission, a Board, an Appeal Tribunal and an Assessment Appeal Tribunal, in hearing, determining or deciding a claim, application or appeal, shall act according to substantial justice and the merits of the case, snall not be bound by technicalities or leyal forms or rules of evidence and shajl give to the claimant, applicant or appellant the benefit of any doubt- {a} as to the existence of any fact, maiter, cause or circumstance which would be favourable td the claimant, applicant or ee ne nee eee eel ow me ee Nee ee ee appellant; or (bob) as to any question whatsoever (includainy the question whether the incapacity from which the memper of the Forces 15 suffering or from which he has died was contributed to in any material deyree, or was aggravated, by the conditions of his war service) which arises for decision under his claim, application or appeal. *(2) Lt shall not be necessary For the claimant, applicant or appellant to furnish proof to supporL his claim, application or appeal but the Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal determining or @cciding the claim, applicatton or appeal shall be entitled to draw, and shall draw, from all the circumstances of the case, from the evidence furnished and from medical opinions, all reasonable inferences in favour of the claimant, applicant or appellant, and an all cases whetsoever che onus of proof shall lie on the person or authority who contends that the claim, application or appeal should not be granted or allowed to the full extent claimed.' It will be observed that the onus of proof was placed on the person or authority contending that the claim, application or appeal should not be granted or allowed. fn relation to appeals that meant in substance that the onus of proof was placed on the Commission. The nature of the onus was not stated specifically but there can be no doubt that 1t was the ordinary civil onus, ie that of proving the material facts on the balance of probabilities, but it was an onus which reguired that degree of proof of a negative proposition. The precise operation of the 'nenefit of any doubt' in such a context is not altogether clear, but presumably it meant no more than a doubt as to the balance of propabilities in respect of each of the matters on which entitlement depended. The amended section inserted in 1977 involved some changes in subd-s (1), including the removal of the reference to the 'benefit of any doubt'. The former s.47(2) was replaced by a new sub-section as follows:- 'fhe Commission, Board, Appeal Tribunal or Assessmeut Appeal YTribunal shall grant the a A he a tae ee ee me claim or application or allow the appeal, as the case may be, unless ut is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal.' Section 12(2) of the 1977 Act provided that tne terms of the new s.47(2) appired, whether or not the hearing or consideration of the claims or appeals had commenced before the amendment came into operation. The significance difference between the old and the new provision 1s that the standard of proof is specified. fhe new provision provided that the Commissicn, Board or ''ripunal must be satisfied beyond reasonable doubt of the negative proposition that there were insufficient grounds for allowiny the claim or appeal. The new section did not use the expression 'onus of proof' but the fact that the Tribunal was placed under a duty to grant a claim or allow an appeal unless so satisfied is enough to place the onus of proof to the specified standard on the Comaission." Ic was not in dispute that the provisions of s.107VH of the Act applied to the Tribunal in its conduct of the review. S.10/Vil provides: "(1) In a proceeding on a review, the ribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subyect of the review was made and to any further evidence pvefore the Tribunal in the proceeding that was not before the Commission or the Board but would have been relevant to the making of a decision in the proceeding before the Commission or the Board. (2) On the completion of its consideration in a proceeding on a review- (a) where the decision the subject of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless it 1s satisfied, beyond reasonable doubt, that there were insufficient grounds for yranting the ee eee ee ed ee whe Ft claim or application; or (b) in any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonanle doubt, that tine Gecision 21s the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made. (3) Where the Tribunal sets aside a decision the subject of a sceview, it shail substitute for that decision such decision as the Tribunal considers to be in accordance with this Act. (4) Where the Tribunal does not set aside a decision the subject of a review, 1t shall affirm that decision." The test provided for in s.107VH(2)(a) is identical with that ian s.47(2). in the present case there was conflicting medival evidence on the question whether there was a relationship between the applicant's war-time stress or anxiety state and his later essential hypertension. The approach to be adopted to such a situation was considered in Law's case (cited above) by a Full Court of this court which said: (ac p-153-154) "KR feature of the evidence was a conflict in the medical opinions of Dr Perkins and Dr Stockler on the one hand and Sir Edward Dunlop on the other. The Commission and, 1n turn, the Tribunal, appcar to have preferred the opinions of Dr Perkins and Dr Stockler. In cases involving onus of proof where the civil standard of proof applics, this may be an acceptable course. Where, however, a Tribunal has to be satisfied peyond reasonable doubt that a perme qt ee rene nn ao ween ee ee eee ee - . see wee - Bd ee ee we tee at oe ke ste eee fee ee eS eee particular finding is not open, notwithstandiny that it is supported by medical opinion, it 1s not sufficient to point to contrary medical optnion which 1s preferred. It is insufficient uniess the contrary Opinion is such as to destroy the favourable opinion. Here there was no contrary opinion which could support the destruction of Sir Edward Dunlop's opinion. There 1s simply a difference of opinion. When all that appears are contradictory medical opinions expressed in written reports by medical practitioners of good repute, in genera] a finding that one of those opinions is untenable cannct be made unless that opinion is inherenLlly incredible, or the other opinion or the evidence of other witnesses exposes a manifest error in it, or its lacredibility appears on examination or cross-examination of ats author. Sir s#dward Dunlop's opinion was not shown to be untenable: all that was shown was that a diiferent opinion was held by other reputable medical practitioners." In the High Court, Aickin J, with whom Gibbs CJ, Stephen J and Mason J agreed, said: (at p.650~-651) "The conflict between the material provided by the Commission and that provided by the resnondent was, un the end, a conflict of expert inedical opinion on the question of whether the cancer was caused by smoking which arose out of or was attributable to war service. The Review Tribunal appears to have preferred the opinion of the Commission's wedical officers to that of Sir Edward Dunlop. Ina civil court 3t would be necessary for the judye, or the jury' if there were one, to hear oral evidence from the expert witnesses and to resolve any conflict on the balance of probabilities, takiny into account the impression given by each expert witness. The Review Tribunal in the present case was 1n a very different position. In the first place it had only the written reports of the expert witnesses. moreover, it was required to find in favour of the applicant unless it was satisfied beyond reasonable Goubt that there were insufficient grounds for doing so. Thus a heavy onus was placed upon the Commission to satisfy the Tribunal beyond a ibe ote ea ee ee te et soe reasonable doubt of that negative proposition. Although the medical reports were in conflict, no challenye appears to have been made to the sltandiny or expertise of any of the medical experts. In that situation it 1s difficuit indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong." Repatriation Commission v Bishop (1983) 48 ALR 461 at p-468 was cited on behalf of the respondent as authority for the proposition that "while there is no onus on a claimant, there must be something in the material before the Tribunal pointing to a possibility, real as opposed to fanciful, of a connection between death and war service". (See also Repatriation Commission v Compton, Toohey J, unreported, 20 February 1984). In my respectful opinion, the matter for the decision the Tribunal is best left in words the Act itself, so that the Tribunal should pose fer itself the question wnether it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. In doing so, it will avoid the difficulties which were pointed out by Windeyer, J. in the Commonwealth v Butler (1958) 102 C.L.R. 465 at 479 where his Honour said: "On those simple facts the ordinary answer of an ordinary man to the question 'did the death of the deceased result from the occlusion of September, 1955?', would surely be: 'No. He did not die from that occlusion. He died two years later from another occlusion.' wer en we tee ok earn WANT et ME heat A a ee ee ee te ee eet weer ae But once the simple question is elapcrated py attempted para-phrases and explanations of the words 'results from', logical and philosophical difficulties emerge however much judges and lawyers may assert that they are eschewiny all philosophical consideration of the chain of causation. Attempted explanations of causation and consequence can, I feel, be as unhelpful and unhappy as definitions of reasonable doubt. In Lhe search for some grounds for isolating a particular event from the totality of circumstances precediny a later event, various adjectives, such as 'direci' 'proximate', '''decisive', 'immediate', 'effective' and ''real,' have been pressed into service to qualify 'cause'. From these there 1s an easy arift to such term as 'materially contributiny factor" Tne posing of the question in the words of the Act will not necessarily produce the answer that where Lhe aetiology of a condition from which an applicant suffers is unknown, ne must succeed in his claim. Very often such an applicant will succeed, but the state of the evidence, including the state of medical knowledge of a particular condition, may lead to the result that the Tribunal will conclude that, while it cannot be satisf1ed beyond reasonable doubt of the precise cause of the condition, it may be so satisfied that-there was no connection between war service and the condition. One of the witnesses relied upon by the applicant was Dr Paul. F. Finlayson, a highly qualified and experienced psychiatrist. In his report dated 30 July 1980, he referred to the applicant's enlistment on 20 January 1942 at 28 years of age in the R.A.A.F. and continued as follows: "de had a young son at that stage and seldom sought medical attention from a Doctor. iis only medical attention appears to be an Appendicectomy See ee ary tree - ~ + - - - ee Pe ee ee ae 2 oe a beet al Li sixceen years prior to enlistment and a broken bone in his right foot some four years before. He served in the R.A.A.F. an Austcalia from the 20th January, 1942 until the lst July, 1946. He was not involved in any overseas service. AN ANALYSIS OF SERVICE IN THE R.A.A.F. DURING 1943-1946: Prior to his War Service, (ir. O'Brien was a hard-working Proof Reader at the Sun Newspapers who was thwarted in his desire to enter the printiny profession, having lost two training positions because of the Depression and conditions of the time. When forced to survive, he was enterprising enough to do so by selling eygs and butter on nis bike. He only sought medical treatment from a Doctor for essential conditions such as Appendicitis and a Broken Foot. This is hardly the behaviour of a 'Dependent Hypochondriac'. During his four and a half years service in the R.A.A.F. he attended sixty-e1ght sick parades and thirty-eight medical examinations. This is clearly a dramatic chanye in his atcitude towards seekiny medical advice. It 431s also directly related tc his War Service as it did not occur prior to war service. An examination of his' records indicate that frequent references were made during his medical examinations and sick parades to his problems belny on a functional or on a neurotic nature. In short, ne was a man who became acutely anxious duriny his War Service. In addition, whilst he began his war Service normotensive (Blood Pressure 110/70), ne finished with a Blood Pressure of 140/96. This Blood Pressure recording 1s clearly hiyh. A Blood Pressure reading taken by me on the 14.7.80, indicates that despite the present treatment he is having, hzis blood pressure can still be high (B.P. 180/110)." Dr Finlayson went on to outline "the nature of the anxiety during war service" as follows: "Mr. O'Brien was clearly exposed to a factor or faccors during nis War Service which changed his emotional and pnysical states. This chanyc has ee a ee a a ed - eae - - - wee ee ee ba eab rn eees continued since his War Service. On examination, Mr. O'Brien 1s a very conscientious man and I would agree with Dr Clement's opinion (a Psychiatrist) on the 11.9.61 that Mr. O'Brien is Obsessional. I would further state that he is a Compulsive as well as Obsessionul. That is, he is formal, meticulous and has a strong drive to do the correct thing. During his War Service, Mr. O'Brien's wife became emotionally distressed. She became pregnant ayain, found her accommodation most unsatisfactory and aunformed Mr. O'Brien of her plight. Wer condition hecame so critical that whilst Living in a renced room in Kings Cross in her pregnant stute, sne wrote a letter to him threatening to commit suicide by jumping off the Gap. Mr. O'Brien becare caught in the band of loyalty and support to his wife and what he should do for his-country as an enlisted member Of the R.A.A.F. So great was his desire to do overseas War Service that he enrolled in a Turner's Covrse. His plan was to work as a Turner on th2 Navy Ships, but this ambition foundered when the 'worksnops for the R.A.A.F. planes were going to be on the Cruisers. However, the Navy changed their minds they probably decided they could look after thelr own planes and did not need the R.A.A.F.' In summary, Mr. O'Brien was caught 1n an emotional entrapment. On one hand, he wanted to complete his War Service, preferably with overseas experience. On the other hand, his wife was becoming severely depressed and expressing suicidal 1deas because of her pregnancy and poor living accommodation. Pinally, he was aware of the nature of his work Situation and the attitude of his superiors, there. This latter became.a significant factor when he returned to Associated Press after the War as a Proof Reader. So anxious did he become about not completing his overseas experience that he took a demotion in a clerical position and avoided contact with his previous superiors." The reference to his work situation and the attitude of his superiors related to the fact that the senior staff in the proof reading department of the Sun Newspaper were World Sr mrp pr ce een sete en + OF et te te Atte eke ek ee eta bo Aue ee erry —enee War 1 veterans and the person in charge was before Mr. O'Brien's enlistment and after his return to the haghly critical of men who had not served overseas. newspapec Dr Finlayson reached the following conclusions: "lL. Mr. O'Brien has essential Hypertension whicn requires treatment. My examination of ham on the 14.7.80 indicated that even despite treatment Hypertension was still present. 2. Mr. O'Brien is jaware of the emotional and physical changes which have occurred to his well-being poth during and since War Service. Because of his Obsessive-Compulsive personality, he as very sensitive to the fact that he did not nave Overseas Service during the War. I have actenpted to reassure him this change in his state js nov of his conscious doing in order to lessen the effact of cross examinations and publicity cf this hearing being detrimental to his health. 3. When one considers this man's history in a longitudinal manner Lf have no doubt that the anxisty of the kind suffered by him was attributable to the condition of his War Service. 4. His anxiety state developed duriny War Service and there was evidence during War Service that his blood pressure was capable of reaching Hypertensive levels. Wot withstanding the fact that the nature of stress as presently understood is debated, lL would have to regard this man's anxiety state and Hypertension as having at least some common causal factors. H 5. During his Service in the R.A.A.F., he was clearly in a state of conflict between his duty to his family and his duty to his country. Although the situation was resolved to some extent by his Service being carried out in Sydney and his contact with his wife and children maintained this was at the great expense of not doing Overseas Service. As a resuit he has adopted a behaviour pattern whereby allness was for him tne unconscious solution for his stress. It therefore becomes manaotmea gree mm we ee teen ey me ee ee = - -- - - we tk ha week rn ee ee possible that such a pattern would have contributed to essential Hypertension. 6. Although his father died of heart disease at the age of 60 years there 1s no evidence that there 1s a genetic factor in the aetivlogy of cssential Hypertension in his family. I do not regard the genetic basis as being of great significance in this man's history as it is an unknown factor anyway, and oven if present the anxiety and "stress' he suffered during his four and a half years with the R.A-A.K. would be the major factor in potentiating the devclopment of Hypertension. 7. As the nature of stress is debated, an attempt to directly implicate it in the role of Hypertension will alvays be at least debated and probably refuted. 1t is for this reason my explanation of the genesis of Mr. O'Briens's Hypertension has been based on facts known about him and events which are known to have occurred during his War Service. This has led me to believe that War Service directly contributed to his Hypertension." The Tribunal made no criticism of Dr Finlayson's qualifications or of his evidence, but 1t found as a matter of law that the factors which he relied upon as producing stress and anxiety state could not be said to have arisen out or to be attributable to war service. They agreed that some of the factors mentioned by Dr Finlayson were also identified by the other medical practitioners whose evidence or reports were before them. In my opinion the Tribunal erred in concluding that the anxiety state developed by the applicant during the period of his enlistment neither arose vut of nor was attributable to his war service within the meaniny of s.101(1)(b) of the Act. The applicant's enlistment led lo his loss of freedom of Penner wre cee ee ee eee . -- - - - eet e es - choice and in particular the right to choose where he worked and lived. The tensions which Dr Finlayson noted arose out of or were attributable to the applicant's war service and the Tribunal was in error in holding to the contrary. PO e rernme 4 The Tribunal made the following findings: a as "TV, vu . i The applicant between 20 January 1942 and 1 July 1946, both dates inclusive, was a member of the Forces on war service. The applicant experienced 2 period of suppressed hostility before and after the period of his war service induced by circumstances at his work. Applicant developed during or after his period of war service an anxicty neurosis. The cause of this anxiety state was some or all of the following, viz., having a wile with a young child, then having a wife who becaine pregnant; in what were said to nave been unfavourable living conditions; having a wife who depended a lot on him; having a wife wno was unable to obtain suitable support systems for herself within the community or reasonable accommodation; having a wife who was threatening to jump over the Gap; having a wife who was experiencing stress and he was removed from it; then having a will to go overseas and living in the hind of his wife wanting him near her; preoccupation with wnat he conceived to be the attitude of his colleagues at work; and with the question of overseas service. If the applicant developed or there was aggravated an existing condition of anxiety state during or after the period of his war service, it did not arise out of nor was ut aggravated by nor attributable to his war service within the meaning of that expression ere in the Act s.100. 6. On 12 December 1974 the applicant was diagnosed as having hypertension. 7. The applicant's hypertension arose out of or was developed by reason of constituttonal factors. 8. Any stress which may have aggravated the applicant's anxiety neurosis or aggravated or contributed to the development of his condition of hypertension did not arise out of nor was it attributable to his said war service. 9. The applicant's incapacity from his condition of essential hypertension did not arise, was not attributable to and was not aggravated or accelerated by his war service." Immediately following these findings 1t went on to say: "On a consideration of all evidence and submissions, we are satisfied beyond reasonable doubt that there are insuffic1rent grounds for granting the claim or application of the applicant." Tne Tribunal was satisfied that the applicant developed "during or after the period of his war service an anxiety neurosis", and went on to adopt amongst the causes of his anxiety state the factors which had been relied upon by Dr Finlayson. Its finding that his anxiety state neither arose out of nor was attributable to his war service was based upon its exclusion of the factors relied upon by Dr Finlayson. Te tte ee eee een eee een ee Ti Ne ee em en ets ae eee ee eee ee ee an In the light of Dr Finlayson's evidence, the Tribunal could not properly have been satisfied beyond reasonable doubt that there were insufficient grounds for yranting tne claim. The other medical evidence did not destroy Dr Pinlayson's opinion. His opinion was not untenable oc inherently incredible, nor was any manifest error in 16 exposed by the other medical evidence. All that was shown was that a different opinion was held by other reputable medical practitioners. It was conceded by other medical witnesses that the opinion that stress may be a cause of the development of essential hypertension was a respectable one. The Tribunal's exclusion from its consideration of the war-time stress factors relied upon by Dr Finlayson also led it into error when it turned to examine the post-war stresses to which he was subjected. It should have regarded him as a person already affected by relevant stress factors who was later subject to further stress, but it did not do so. I would allow the appeal with costs and order that the applicant's claim be granted. I certify that this and the sixteen (16) preceding pages are a true copy of the Reasons for Judgment herein of The Honourable Mr Justice Sweeney. Dated: 10 April, 1984 Associate IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) NO. G.64 OF 1983 GENERAL DIVISION ) ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN : JOHN DAVID 0' BRIEN Appellant THE REPATRIATION COMMISSION Respondent CORAM: Sweeney, Keely and Fitzgerald Ju. DATE: 11 April 1984 REASONS FOR JUDGMENT Keely and Fitzqgerald JJ.: On 14 October 1974 the appellant, John David O'Brien, lodged a claim for medical treatment and pension pursuant to the Repatriation Act 1920 ("the Act") in respect of an alleged incapacity of essential hypertension. This appeal from the Administrative Appeals Tribunal ("the Tribunal") has come before the Court almost 10 years after the claim was originally made. The decision of the Tribunal now under appeal was given following a review by the Tribunal of decisions of th Repatriation Commission ("the respondent") pursuant to a request made under 3.107VZZB of the Act. Notwithstanding the inadequate drafting of the Act in this as in many other respects, it is not in dispute that the provisions of s.107VH of the Act were applicable, mutatis mutandis, to the Tribunal in its conduct of the review: cf. Repatriation Commission v. Byrne (1981) 40 A.L.R. 296; and Lennell v. Repatriation Commission (1982), 4 A.L.N. No. 29. Nor is it now in dispute that the appellant does suffer from essential hypertension or that his essential hypertension is a disease within the meaning of sub-s. 101(1A) of the Act. Accordingly, it was accepted that the appellant was entitled to succeed before the fribunal unless it was satisfied beyond reasonable doubt: (1) that the appellant's essential hypertension has not arisen out of and is not attributable to his war service (para. 101(1)(b) of the Act); and (ii) that his essential hypertension has not been contributed to in any material degree or been aggravated by the conditions of his war service (sub-s. 101(2) of the Act). For the purposes of para. 101(1)(b) but without limiting the generality thereof, an incapacity is deemed to have arisen out of war service if it is due to a disease or an infectionn that would not have been contracted but for war service or but for changes in environment consequent upon being on war service. No provision of the Act other than s.101 was suggested to he directly material to a definition of the elements of entitlement, although other provisions, for example sub-ss. 47(2) and 107VH(2), were put forward as having a bearing on the proper outcome of this appeal. The appellant was born on 21 March 1914. On 20 January 1942, he enlisted in the Royal Australian Air Force. His war service was within Australia and not in a theatre of war (8.23 of the Act). There is nothing to indicate any incapacity prior to enlistment, but his personality was such that he was more than normally prone to tension and anxiety. Although there is some evidence of isolated incidents in the course of his duty during his war service which might have caused the appellant some stress, his duty did not expose him to chronic stress and it was open to the Tribunal on the whole of the evidence and taking into account the conduct of the proceedings by both parties to be satisfied beyond reasonable doubt that the appellant's duties during his war service were wholly immaterial to his essential hypertension. On a reading of the Tribunal's reasons as a whole, we have concluded that the Tribunal should be considered to have so found. However, the appellant was subjected to other stress during the period of his war service. As a result of this stress, he developed an anxiety neurosis which troubled him 4. throughout his war service which was punctuated by medical consultations for troubles often diagnosed as being functional in origin, and which continued after his war service ceased on 1 July 1946. The Tribunal held that the appellant's stress during the period of his war service and the consequential anxiety neurosis could not be relevantly connected to his war service (or, perhaps, to the conditions of his war service or to changes in his environment consequent upon his war service) so as to satisfy s.101 of the Act. Although the Tribunal's reasons are far from clear, its conclusion on this aspect of the matter seems to have been dependent on an erroneous view of the operation of s.101 of the Act. In our opinion, if the appellant's stress during the period of his war service was occasioned by his inability to live with his wife who was experiencing considerable difficulty in coping with her separation from him and caring for young children in unfavourable living conditions and by his inability, in consequence of his family situation, to serve overseas, which he felt compelled to do by the attitude of his workmates in the civilian job to which he wished to return after the war, a sufficient causal relationship existed between the appellant's war service and the stress which caused his anxiety neurosis to satisfy the test prescribed by para. 101(1)(b) of the Act; his stress and his anxiety neurosis were attributable to his war service. We do not wish to add to what was said concerning what igs required by para 101(1)(b) by the Full Court in Law v. Repatriation Commission (1980) 31 A.L.R. 140, affirmed (1981) 147 C.L.R. 635. It seems to us far too subtle for the purposes of the Act to submit, as the respondent did, that although the appellant was at the time on war service, his stress and anxiety neurosis were attributable to the war but not to war service. It is unnecessary to consider the other provisions of s.101 of the Act relied on by the appellant and it seems preferable not to do so, particularly since a number of questions of construction were not fully debated; for example, what constitute changes of environment consequent upon being on war service in sub-s. 101(1A), what are conditions of war service in para 101(2)(b), and whether sub-s. 101(2) has any application except in respect of incapacities which antedated enlistment. It is also unnecessary to deal with the appellant's submission that the Tribunal erred in not acting upon "findings" by Repatriation Boards in 1961 and 1970 that the appellant's anxiety neurosis was attributable to war service. There was nothing pointed to in the Act which gives such "findings" conclusive effect and neither the "findings", payments under them, and/oc the appellant's failure to take some course which might have been open to him had the "findings" not been acted upon, with the detrimental consequence that time had passed and evidence and opportunities been lost, could conceivably give rise to an estoppel. The "findings" and the resultant conduct of the parties simply constituted part of the material before the Tribunal which was required to form its own views. The respondent sought to establish before the Tribunal that no connection exists between the appellant's war-time stress and resultant anxiety neurosis and his essential hypertension so that his hypertension was not attributable to his war service even if his stress during the war and his anxiety neurosis were attributable to it. Initially, it was the respondent's contention before the Tribunal that the appellant's hypertension is not essential hypertension but is pathological, perhaps renal, in origin. The Tribunal did not accept that theory and, as previously stated, it is not now in dispute that the appellant suffers essential hypertension. Further, the respondent does not question that the Tribunal could not, on the evidence, have been satisfied beyond reasonable doubt that stress is not able to cause or contribute to or aggravate hypertension although there was an unresolved issue upon which there was a conflict of expert evidence concerning whether an anxiety neurosis could have any such effect. Apart from the possibility that a pathological event may have occasioned the initial appearance of the appellant's hypertension (or increased hypertension) in 1973 when there was a sudden significant increase in his blood pressure level, various other hypotheses were advanced, dissected, and debated. Eight medical experts gave both reports and oral evidence and a number of others gave veports only. At least some of the doctors, 7. including those with strongly conflicting views, were obviously highly qualified and of considerable eminence. The Tribunal made no express selection between their views by way of detailed findings. One possible theory was that the appellant's hypertension was simply and solely the consequence of the degenerative processes of ageing in one genetically pre-disposed to such an incapacity. Support was sought to be found for this by the respondent in a statement by the Tribunal in a summary of "findings" which it included in its reasons for its decislon that the appellant's hypertension "arose out of or was developed by reason of constitutional factors". However, that statement is capable of heing read as meaning no more than that the appellant's hypertension was essential not pathological. It is sufficiently clear from the Tribunal's reasons taken as a whole that it was not satisfied beyond a reasonable doubt that stress did not cause, contribute to, or aggravate the appellant's essential hypertension. Reference has already been made to the appellant's war-time stress and resultant anxiety neurosis. The Tribunal accepted that he suffered further stress in his work situation in the period from 1946 to 1957, at which time he accepted demotion as a means of relief. During these years, the appellant's work situation occasioned him resentment and "suppressed hostility". There was evidence before the Tribunal that neither the appellant's stress during his war service nor his stress in 1946-1957 bore any relationship to his essential hypertension. On one body of expert opinion, he did not have essential hypertension prior to his sudden severe rise in his blood pressure level in 1973. It would have been consistent with that view, with the rejection of the theory that the hypertension resulted froma pathological event, and with rejection of the existence of any relationship between the hypertension and either of the appellant's periods of stress, an opinion supported by a body of evidence, for the Tribunal to have found that the sudden change in blood pressure level in 1973 was caused by a stressful occurrence at that time and there was evidence of such an occurrence. However, there is nothing in the Tribunal's reasons which could support the conclusion that the Tribunal was satisfied of this beyond reasonable doubt even if such a course was open to the Tribunal. A number of other possibilities, including at least the following, were available for consideration: (1) that some direct relationship existed between either or both the earlier periods of stress and the development of the hypertension; (ii) that some direct relationship existed between the anxiety neurosis produced by the war-time stress and the development of the hypertension; (iii) that although neither the war time stress nor the resultant anxiety hysteria bore any direct relationship to the development of the hypertension, a relationship did exist between the hypertension and (a) the stress in the period 1946-1957; and/or (b) a stressful occurrence associated in point of time with the sudden steep rise in blood pressure level in 1973; and the war-time stress and/or the resultant anxiety neurosis exacerhated the effect of whichever of the later stresses was material. The Tribunal did not deal with (iii) adequately, if it dealt with it at all. Reference has already been made to its dealing with (ii) which, so far as can be seen, involved error as to the application of para 101(1)(b) of the Act as we have already indicated. In dealing with (1), the Tribunal recognized the possibility that the stress in the period 1946-1957 may have been connected with the hypertension but rejected the war-time stress, although in doing so it used language which raises concern whether it kept in mind the standard of proof required of the respondent. Purther, if the evidence which would justify the exclusion of the war-time stress as a factor connected with the appellant's hypertension were accepted, the 1946-1957 stress could not logically be acknowledged as a possible factor. Counsel for the respondent frankly acknowledged that the Tribunal's reasons raise serious problems. However, he sought refuge in the Tribunal's summarized "findings" towards the end of 10. its reasons and its earlier detailed discussion of the onus of proof. He submitted that the Court ought not entertain the notion that egregious error had intruded between the discussion of onus and the "findings" and that, accordingly, there being sufficient evidence which might support the Tribunal's decision, the Court should in effect conclude that the Tribunal had accepted that evidence and not only preferred it but rejected all incompatible evidence. What has previously been said reveals some obvious objections to this course, even assuming that it was possible for the Tribunal to be satisfied to the prescribed standard notwithstanding the state of the expert evidence. But in any event, the submission depends upon attention being concentrated exclusively, or almost exclusively, upon the Tribunal's summarized "findings" and inconvenient portions of its reasons being ignored. Such a course is plainly impermissible. Further, the "findings" in question, or at least some of them, are in substance generalized assertions of ultimate issues, unsupported by any revealed process of reasoning whether in respect of law or of fact. The adoption of the terms of the Act does not necessarily mean that the Act has been applied. The Administrative Appeals Tribunal Act 1975 (sub-s. 43(2)) specifically requires that reasons including any findings of fact be given by the Tribunal and the manifest object of the Act is that no entitlement under the Act to a pension which is claimed should remain unsatisifed. That legislative policy would be thwarted if inadequacy in the expression of reasons were to disguise any possible errors. In our opinion, this Court in its il. supervision of the implementation of the Act should regard a failure to comply adequately with the obligation to give reasons as itself constituting error of law, at least when a claim toa pension is rejected: see Smith v. Repatriation Commission (29 March 1983, unreported); cf. Australian Timber Workers' Union v. Monaro Sawmills Pty Ltd (1980) 42 F.L.R. 369, 374, 380; Sullivan v. Department of Transport (1978) 20 A.L.R. 323. In the present case, the Tribunal's decision fails to expose a satisfactory process of reasoning which led to the rejection of the appellant's claim and contains a_ reason for concluding that there was error. In the course of their respective arguments the parties adopted extreme opposing positions in relation to questions of evidence and proof under the Act. These questions also arose in connection with the appellant's contention that the matter should not be remitted to the Tribunal but a determination should be made that the appellant is entitled to the pension claimed. It is not easy to identify how all the rival contentions are material to the present matter. It is, however, clear that there continues to be confusion and doubt with respect to the position where the material leaves a possible issue such as cause of death unresolved. The respondent invited the Court to remove the confusion. 12. The respondent relied upon a statement by Toohey J. in Repatriation Commission v. Bishop (1983) 48 A.L.R. 461 at p.468 which was cited with approval by Northrop J. in Repatriation Commission v. Evans (unreported judgment delivered 21 December 1983) and has been the subject of further discussion by Toohey J. in Repatriation Commission v. Compton (unreported Judgment delivered 20 February 1984). In effect the respondent argued that a claim must be rejected unless there is something in the material pointing toa "real" possibility of each element upon which an entitlement depends which is not disproved beyond reasonable doubt by other material. More particularly, it contends that Mr O'Brien's claim must be rejected because there is nothing in the material pointing to a "real" possibility of a particular identified connection between his war service and his hypertension which is not disproved beyond reasonable doubt by other evidence. The appellant argued that no such requirement exists. According to the appellant, a claimant is entitled to succeed unless the respondent proves or disproves (as appropriate) beyond reasonable doubt every fact in respect of which an issue exists or may exist, even (it seemed) factual issues which of themselves are incidental or non-essential. The appellant's argument called in question, although not directly, dicta in Lennell's Case. In Lennell, Northrop and Sheppard JJ. said in their joint judgment: 13. "Before turning to the second submission we should say something of the applicant's submission that in every case where a serviceman died of a disease, the cause of which was unknown, his dependants were entitled to a pension because it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. We would reject this submission because, notwithstanding that the cause may not be known, it may be possible to demonstrate beyond reasonable doubt that the cause could not have been related to war service. ... We would consider such a general approach to be unhelpful and dangerous. It over-simplifies the problem and seeks to equate the Australian legislation to that in force in the United Kingdom. In our opinion the decisions in England in Judd v. Minister ef Pensions £19661 2 Q.B. 580 and Coe v. Minister of Pensions (19673 1 Q.B. 238 have no application in Australia." The third member of the Court, Toohey J. said at p.15 of his reasons: --. To say that the aetiology of a disease is unknown does not mean that logically war service cannot be excluded. In a particular case the cause of the fatal condition may be unknown but on the material available it is possible to be satisfied beyond reasonable doubt that it was not attributable to war service." In the course of the present argument, analogies were drawn between the obligation of the prosecution and the role of the jury in a criminal trial and the task of the respondent and the role of the Tribunal under the Act, even to the extent of an unconvincing attempt by the respondent to support the statement in Bishop's Case, supra, on the footing that it accords with the proposition that the prosecution need not negative "excuses" of provocation or self-defence unless and until there is evidence 14. upon which those issues arise. Both in subject matter and in principle such a proposition, which may itself raise problems of considerable complexity, seems far removed from the proper construction of the Act and likely to confuse, not elucidate, the present dispute. Central to the rival contentions advanced by the parties in the present case are the meaning and effect of ss. 101 and 107VH of the Act which materially provide: "101(1) Upon the incapacity or death - (a) ..- (b) of any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service, the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division 1: Provided that: "107VH (1)... (2) On the completion of its consideration in a proceeding on a review - (a) where the decision the subject of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or 15. (b) in any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made." In Bishop, Toohey J. held that the Tribunal had erred in law because it had considered that it was bound in law to allowa claim if the aetiology of an incapacity was unknown. That such a view by the Tribunal involved error is made clear by Lennell. Then, after indicating that any suggestion that a claimant bears any onus "legal or evidential" cannot stand with the High Court's decision in Law, his Honour, at p.466, quoted the following passage from the judgment of Aickin J. in that case at p.651 (of 147 C.L.R.): ",..'In so far as the claimant had to prove anything, she had to establish two things, first that the carcinoma from which her husband died was caused by smoking... and second that his smoking had arisen out of or was attributable to his war service ...'" Toohey J. then continued: "I do not think that Aickin J. was referring to any onus that lay on the claimant; that would be inconsistent with the rest of his judgment. His Honour was saying no more than that there need be something from which it is possible to infer the requisite connection. It must be remembered that in Law's Case there was, in the language of Murphy J. at p.413, 'formidable support' for the claimant's case. Hence it was unnecessary to dwell on the notion of a real or rational possibility." 16. Then, after referring to Byrne's Case and Lennell's Case, Toohey J. went on at the top of p.468: "In the light of these decisions it may be accepted that, while there is no onus upon a claimant, there must be something in the material before the Tribunal pointing to a possibility, real as opposed to fanciful, of a connection between death and war service." Law's Case was far removed from Bishop's Case or indeed the present matter. In Law, the proceedings before the Repatriation Review Tribunal had established both the incapacity which had caused death (lung cancer) and the cause of that incapacity (smoking). The dispute centred upon whether the Tribunal could be satisfied beyond reasonable doubt that the deceased's smoking was not connected with his war service. That issue was not left to speculation. There was a considerable body of expert evidence involving conflict of medical opinion. As Toohey J. pointed out at p.466 of Rishop's Case by reference to the judgment of Murphy J. in Law, there was in the evidence "formidable support" for the claimant's case. We are satisfied that in Law's Case Aickin J. did not intend to convey that, in every case, if at all, "there need be something from which it is possible to infer the requisite connection". The particular passage from the judgment of Aickin dg. in which he spoke of proof by a claimant has given trouble on a number of occasions since, especially when it is taken separately, divorced not only from its immediate context but also from other statements made by Aickin J. and the overall tenor of 17. not only his judgment but those of Murphy J. and of the Full Court of this Court in the same case. The qualified comment of Aickin J. quoted in Bishop was made in the course of an explanation concerning what is included in the expression "insufficient grounds" in ss. 47 and 107VH. It was followed by the sentence: "Section 101(1)(b) and (1A) require no more than that." Section 101 is, of course, the section which materially defines the grounds of eligibility. As we understand what Aickin J. was saying, the passage in his judgment is not directly concerned with any question of evidence but with the elements of entitlement to a pension under 3.101, which are established if not disproved beyond reasonable doubt by the material. In Law's Case in the Full Court ((1980) 31 A.L.R. 140) the effect of sub-s. 107VH(2) had been dealt with in a joint judgment of Bowen C.J., Brennan and Lockhart JJ. at pp.151 ff. The Court said that the expression "beyond reasonable doubt" bears the same meaning in sub-ss. 47(2) and 107VH(2) as it does in the criminal law although the respective exercises called for may be different because, under the Act the standard is applied to a negative proposition, and it was noted that it is undesirable to attempt to elaborate upon the meaning of the phrase. At p.152, their Honours said: 18. "The conditions to be fulfilled before a claim or application under s.101(1) may be granted are set out in the sub-section, and the grounds for granting a claim or application are the facts (including the relationships referred to in paras (a) and (b)) which fulfil those conditions. Where there is some evidence of facts which might fulfil the conditions of eligibility, the decision against allowing the claim must be set aside unless those facts are negatived beyond reasonable doubt - and a conclusion adverse to the claimant cannot be reached without taking account of the circumstances referred to in s.107VG. In Cadney v. Minister of Pensions and National Insurance (19661 1W.L.R. 80, Edmund Davies J. (as he then was) appears to have arrived at a similar construction of the onus provision in the Personal Injuries (Civilian) Scheme 1964, though he thought that 'reliable evidence' was required to raise a reasonable doubt. For our part, we should think it better to consider reliability of evidence not so much as a condition precedent to the raising of a reasonable doubt under 3.107VH(2) (or under 3.47(2)) but rather as a factor relevant to determining whether such a doubt exists. Where the death of an erstwhile member of the forces might have arisen out of war service or might be attributable to it, a pension cannot be refused unless it is proved beyond reasonable doubt that his death was not so related to his war service. The scheme of the Act is not to establish an adversary method of determining claims and applications, but to have the Department make the relevant investigations and then to require that, if there is some evidence that the claimant is eligible to receive a pension, a pension be paid unless the investigations or the course of the proceedings throw up information which establishes beyond reasonable doubt that a pension is not payable. ... 19. At p.153, they said: " s.. 8-107VH(2) was obviously intended to operate in favour of claimants and it cannot operate sensibly unless the standard of proof beyond reasonable doubt is applied at each stage of the inquiry into the facts. Otherwise, one cannot attain satisfaction beyond reasonable doubt that there are insufficient grounds for granting the clain. Section 107VG is consistent with this view." The respondent directed attention to the two passages "Where there is some evidence of facts which might fulfil the conditions of eligibility", and "if there is some evidence that the claimant is eligible to receive a pension...". But these observations made by the Full Court did not express universal conditions which must be fulfilled if a conclusion of disproof beyond reasonable doubt is to be avoided. On the contrary, they were descriptions of a particular category of cases, of which category the case before them was an example, in which a claim must succeed; i.e. cases in which there 1s some evidence which positively points to an identified possibility of a connection with war service which is not disproved. Apart from the obvious requirement that what is said ina judgment must be read with reference to the topic under discussion, emphasis is given to this analysis of the Full Court's statements by the last sentence in the first paragraph quoted in which the Full Court expressly declined to accept that reliable evidence in support of a claim was "a condition precedent to the raising of a reasonable doubt", (that there were insufficient grounds for granting the claim). 20. The Full Court concluded its judgment by summarising the evidence and stating the possibilities to which it gave rise. It said: "These possibilities are not fantastic - they are real possibilities". The sentence is not authority for the proposition that, in every case, whatever the circumstances, there are insufficient grounds for granting the claim in the absence of evidence pointing to a real possibility. The judgment is authority for the proposition that aclaim must succeed if there is such evidence and the possibility is not disproved beyond reasonable doubt. In the High Court in Law's Case, Murphy J. referred at p.639 to the legislative intention behind sub-ss. 47(2) and 107VH(2) as being "that no valid claim (is) rejected because of insufficiency of proof", and said that those provisions "reflect the view that it is better that some invalid claims be allowed than that valid ones be rejected" At p.640 he said: "Although the claimant did not have to adduce proof, there was formidable support for her case." 21. Further down the said page he said: "... it igs not enough that the Tribunal prefer the evidence (including opinion evidence) which tends to disprove the claim. Even if it rejects the evidence in favour of the claim, the claimant is entitled to succeed unless the Tribunal is satisfied beyond reasonable doubt that there are insufficient grounds for the claim." Aickin J., whose judgment was agreed in by Gibbs C.J., Stephen and Mason JJ., said at p.645 after setting out ss. 107VG and 107VH: "Although those sections are not expressed in the same words as s.47, the material provision in s.1l07VH(2) is identical. The Tribunal is required to set aside a decision 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.651, prior to the passage previously discussed, his Honour said: ». it (the Tribunal) was required to find in favour of the applicant unless it was satisfied beyond reasonable doubt that there were insufficient grounds for doing so. Thus a heavy onus was placed upon the Commission to satisfy the Tribunal beyond reasonable doubt of that negative proposition. ... For the Commission it was argued that neither s.47(2) nor s.107VH(2) had anything to do with the standard of proof and that the reference to 'insufficient grounds' must mean something more than that the claim did not meet the requirements of the section. The argument was that neither 3.47 nor s.107VH was concerned 22. with evidence, but dealt with the manner in which the Commission or the Review Tribunal directed themselves. It was urged that the expression 'insufficient grounds' did not refer to the facts but to liability under 3.101. This argument misconceives the nature of the function of the Commission and the Review Tribunal. The expression 'insufficient grounds' must include, though it may not be limited to, the conclusion that the evidence does not establish on the relevant standard of proof the absence of the requisite connexion between the carcinoma and war service." Then, at p.652, he said: "Accordingly the submission that s.107VH is net an 'evidentiary provision' should be rejected. I am satisfied that the operation of that section does not involve a two-stage process and that 1t requires that, in relation to any fact necessary to establish entitlement, the Review Tribunal must be satisfied beyond reasonable doubt that the fact does not or did not exist before it can refuse an application or dismiss an appeal by a claimant. The reference in sub-s. (2) to the 'completion of its consideration in a proceeding on a review' is to the entire process of examining the evidence and determining whether the Review Tribunal is satisfied beyond reasonable doubt that each of the factual requirements has not been established. Sub-section (2) then directs the Review Tribunal as to what it must do in the light of its determination, 1.e. to set aside the decision if it is not so satisfied, and to uphold the decision if it is so satisfied." In our opinion, Law's Case provides no support for the respondent's present argument. 23. The subsequent decision of the Full Court in Byrne likewise provides no comfort to the respondent when the references to "real" and "fanciful" possibilities are placed in the context of a case in which it was held that the claim had to succeed because there was on the material an identified "real" possibility which was not disproved. There was not the slightest suggestion that the claim would have had to fail if the material had failed to point to a particular possible connection. Byrne's Case concerned claims by widows that their husbands contracted malaria and other infectious tropical disease during, or as a result of, war service, and that those infections caused or precipitated a form of cancer from which each man suffered much later in his life and from which he died. There was aoconflict of medical evidence concerning whether or not there was a causal connection between the original diseases and the eventual deaths from cancer. The Tribunal after reviewing the evidence concluded that it justified a finding that a number of possibilities sufficient for the claimants' purposes were "real" and not "merely fantastic". The Full Court said at pp. 302-303 "In order to have succeeded the Commission would have had to demonstrate that no tribunal, properly directing itself as to relevant matters of law, could have come to any other conclusion than that it was satisfied beyond reasonable doubt that malarial or other tropical infections could not have been the cause of the cancer suffered by the deceased in their later lives. In our opinion one could not possibly reach that conclusion. The matter was one essentially for the Tribunal as the tribunal of fact. We do not regard the hypothesis put forward by Dr 24. Metcalf and the other witnesses as fanciful. We agree that it stands as no more thana possibility but in our opinion the Tribunal wag well entitled to take the view, as it did, that the possibility was real and distinct. At the foot of p.303 the Full Court said: "The submission to which we do refer is a submission that the Act requires two steps in the process of reaching a decision. The first step, as we understood the argument, places an onus upon an applicant to establish causal connection between the relevant disease and death upon a balance of probabilities. The second involves looking at the whole of the evidence and the determination of the claim in the applicant's favour unless the Tribunal is satisfied beyound reasonable doubt that there are insufficient grounds for granting the clain. That approach 1s not a permissible one. There is no first step nor is any onus Placed on the claimant to establish causal connection between a disease and death. So much has been determined by each of the judgments delivered in Law's case. We refer to the judgments of Murphy J and Aickin J in the High Court. All other judges agreed in the judgment of Aickin J." Lennell was another case, like Law and Byrne, in which both the incapacity which caused death and the cause of the incapacity were known and the dispute concerned whether there was a possible connection with war service. Mr Lennell was another smoker who died of lung cancer. The Tribunal rejected the clain. All three members of the Court (Northrop, Toohey and Sheppard Jd.)}, the same Court as had sat in Byrne, rejected one submission for the widow, namely, that in every case where a serviceman died of a disease, the cause of which is unknown, it necessarily followed that his dependants were entitled to a pension because 25. it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. The submission was rejected because it was considered that, notwithstanding that the cause may not be known, it might be possible to demonstrate that the cause was not or could not have been connected with war service. The material passages have already been quoted. Again like Law and Byrne, Lennetl contained a considerable body of evidence concerning the possibility of a connection between Mr Lennell's war service and the lung cancer from which he died. Mr Lennell was a smoker when he enlisted and remained a smoker throughout his life. There was no direct evidence that his smoking habit was increased, altered, or prolonged by his war service. Nonetheless, the majority, Northrop and Sheppard JJ., said: "Notwithstanding the strength of the medical opinions before the Tribunal, we think there is a real question of whether there was not a real possibility that the deceased's smoking habits were not increased by his war service and that smoking was the cause of the cancer from which he died." (The final "not" seems to be a clerical error.) Passages in the Tribunal's reasons suggested that it may have erroneously considered that there was an onus on the claimant. Accordingly, the majority were of opinion that the appeal had to be allowed. However, their Honours considered that the medical evidence was not nearly so powerful as it was in Law and Byrne and were unwilling to conclude that no Tribunal, properly directing itself, could have reached the conclusion that it was 26. satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. Consequently, they favoured remitting the matter to the Tribunal. Toohey J. dissented, but only on one point. In his analysis of the High Court's decision in Law, with which the majority agreed, his Honour said: "A claimant is entitled to succeed unless the relevant tribunal is satisfied beyond reasonable doubt that a fact necessary to establish entitlement did not or does not exist. It follows that for a tribunal oc court to review the material before it witha view to determining to what extent that material supports the claim is to take a wrong approach and one thet must almost inevitably lead to error." Later he said: "What was required to reject the claim was that the Tribunal be satisfied beyond reasonable doubt that any facts necessary to establish entitlement to a pension do not or did not exist. In my view, when the reasons are looked at in their entirety, the Tribunal was s0 satisfied although it might well have chosen language more consonant with the approach taken in Law's Case, both by the High Court and the Federal Court. On a proper analysis of the Tribunal's reasons, I am satisfied that at each relevant step it considered the material before it and was satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. The Tribunal was satisfied that stress did not initiate Mr Lennell's cancer, that it did not produce an acceleration of his death, that there was no impairment of his 27. immune mechanism, that he did not suffer from immuno-deficiency, that the site of his adenocarcinoma was not in an area of scar, that there was no scarring of his lung, that he had a smoking habit before enlistment which wag 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 related to war service. Ido not think it 1s inconsistent with Law's Case to say that it is only remotely possible that an unknown factor was war caused or related to war service and then go on, as the Tribunal did, to conclude: 'We consider any such possibility as fanciful or tenuous'. To gay that the aetiology of a disease is unknown does not mean that logically war service cannot be excluded. In a particular case the cause of the fatal condition may be unknown but on the material available it is possible to be satisfied beyond reasonable doubt that it was not attributable to war service." Later, his Honour said: "The Tribunal was satisfied that the time of any 'insult' associated with the adenocarcinoma must have been later than the termination of Mr Lennell''s service and not in any way related to it." Once again, it is apparent that the references to "real" and "fanciful" possibilities were entirely appropriate because of the nature of the case. Further, Lennell's Case well demonstrates the difficulties which result from attempts to found upon isolated passages in judgments. Toohey J. considered that the Tribunal was satisfied that stress did not initiate Mr Lennell's cancer and that it was no more than fanciful to suggest that there might have been some other unidentified factor in his war service which caused or contributed to it. The majority on the other hand considered that the Tribunal had failed to allude 28. to the question of whether there was or was not areal or distinct possibility of the cancer having been increased by the stressful experiences which Mr Lennell suffered during his war service. The majority in Lennell did not expressly deal with the question whether, if the Tribunal had rejected the possibility that stress increased Mr Lennell's smoking habit, it would have been entitled to have been satisfied beyond reasonable doubt that there was no connection between his war service and his cancer on the basis that the possibility that other unknown factors in or related to his war service were connected with his cancer was "fanciful". However, their Honours' reasons give no support to such a suggestion. They said: "It is true that if one is concerned with the question of whether or not something may have been caused by real or distinct possibilities, one may legitimately tackle the problem by deciding that some relevant factor was positively not a cause. The very positiveness of the decision excludes the fact as being no more than tenuous or fanciful. But if the Tribunal does approach the matter in this way, it ought, notwithstanding the latitude in language that it should properly be allowed, be careful to keep in mind what it is that it is about. It must be at pains to avoid the danger of imposing upon a party an onus which he does not bear." Their Honours rejected the submission that "in every case where a serviceman died of a disease, the cause of which was unknown, his dependants were entitled to a pension because it 1s not possible to demonstrate that the cause of the disease froz which he died was not &@ war service cause", but only because, "notwithstanding 29. that the cause may not be known, it may be possible to demonstrate beyond reasonable doubt that the cause would not have been related to war service". Their Honours went on to say that "because of the amount of evidence which there is concerning the deceased's medical history and war service the case was one for determining whether the possibility of a connection between death and war service was not open on the evidence and thus had been disproved, " As was pointed out in Rose v. Repatriation Commission (1982) 44 A.L.R. 504 at p.514, the majority in Lennell did not say that the absence of evidence necessarily means that a claim may not succeed. Lennell's Case illustrates the difficulties in being satisfied of a negative beyond reasonable doubt by proof which negatives each of a number of possible factors without establishing either that there are no other possible factors or that, if there are, whatever they are they were not or could not be material. Insofar as the dissenting judgment of Toohey J. in Lennell's Case may have proceeded on the basis that it was sufficient for the material to disprove a particular identified possible connection, it affords the first possible support for the respondent's present contention. The passages from Bishop's Case upon which the respondent places principal reliance have already been set out. Bishop is referred to in Repatriation Commission v. Morcombe, an unreported judgment delivered on 19 September 1983, in which Beaumont J. dismissed the Repatriation Commission's appeal from the Tribunal because he was of the opinion that on the material 30. before it the Tribunal's conclusion that there was a real possibility of a connection with war service was open to it asa conclusion of fact. Morcombe is simply another example in the Law and Byrne line of cases. However, as stated, Bishop was cited with approval by Northrop J. in Repatriation Commission v. Evans. In Evans, like Bishop and Repatriation Commission v. Bugg, an _ unreported decision of Sheppard J. delivered on 27 July 1983, it was found that the Tribunal had erred because it had considered that it was bound in law to allow a claim if the aetiology of a disease is unknown. The apparent adoption of Northrop J. of the view that, where the aetiology of an incapacity is unknown or in doubt, there must be something in the material which points to a possibility, real as opposed to fanciful, of a particular connection between incapacity and war service if a pension is to be granted was obiter. His Honour did not apply that proposition to the case before him which was remitted to the Tribunal for reconsideration. In Repatriation Commission v. Compton, Toohey J. allowed an appeal from the Tribunal because he held that it had misinterpreted Bishop and also had wrongly approached the matter as though the proceedings were adversary and the Commission had an onus which it could only discharge by evidence led by it. In the course of his judgment, Toohey J. said: 31. 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 conclusion that the onus had not been satisfied 'unless the evidence pointing to a connection between death and war service could be dismissed as merely fanciful' (p.467). That statement, and the passage in Bishop's Case which was approved in Evans Case, constitute the foundation of the present argument for the Commission. In our opinion, a proposition that the Tribunal should be satisfied beyond reasonable doubt that there is no "connection" between war service and incapacity or death unless there is something in the material pointing to a "real" possibility of such a connection which is not disproved by other material cannot be accepted as a principle of law of general application for a number of reasons. In the first place, it does not accord with sub-ss. 47(2) and 107VH(2) of the Act, and is not consistent with Law's Case in which those provisions were explained. 32. In the second place, it is doubtful whether it really has the support claimed for it by reference to Bishop, Evans and Compton. We have already expressed the view that the relevant statement in Evans may have been obiter. That is also true of the relevant statements in Bishop and Compton. In neither was the claim rejected because there was no material which might point to a real possibility of a connection between war service and incapacity or death. In each there was evidence. Each was remitted to the Tribunal to re-determine the claim on the facts. Further, it is by no means clear that Toohey J. really intended to lay down the proposition for which the Repatriation Commission contends as a legal proposition of general application. In Bishop, Toohey J. said at p.469: "Counsel for the respondent suggested that there was a logical contradiction in saying, on the one hand, that the aetiology of a disease is unknown and, on the other hand, that there is no real possibility that it was contributed to by war service. I do not agree. In a particular case it may be possible to say that, although the cause of a particular disease in a particular ex-serviceman is unknown, medical evidence is against its origin as early as the years of World War If or against an origin having anything to do with war service or any circumstances connected therewith." The final sentence of that paragraph accords with the majority statement in Lennejl and is a far more limited basis for rejection of a claim than the mere absence of some material which positively points to the existence of the requisite connection. 33. In Compton, Toohey J. again returned to what he had said in Bishop at p.409. He said immediately after the passage previously quoted: "Where the aetiology of a disease is unknown the same principle is in 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 in a 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 Lenneli Vv. Repatriation Commission (1982) 4 ALN No. 29." Then, at the conclusion of his judgment, he said: "Claims before the Commission are not to he 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 is satisfied beyond reasonable doubt that the death of the member of the Forces was not attributable to war service. If the tribunai is not so satisfied the claim must be allowed. In making that determination the tribunal should have regard to possibilities, 30 long as they are not fanciful." Finally, it seems to us that the Repatriation Commission's proposition is demonstrably fallacious. 34. The notion of a "real" as distinct froma fanciful possibility almost certainly has Its source in statements to be found in the criminal law. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused, it is often put that it is necessary not only that guilt should be a rational conclusion but that it should be the only rational conclusion. By way of explanation, it is sometimes said that innocence is an alternative rational conclusion only if it is a "real" possibility and not a ""bare" or "fanciful" possibility which rests upon mere conjecture. Such propositions are "principles of logic and common sense": cf. Barca v. R. (1975) 133 C.L.R. 82 per Gibbs, Stephen and Mason JJ. at p.105. a case concerning a conviction based on circumstantial evidence. In a case in which an issue must be proved beyond reasonable doubt and there is a conflict of evidence, the question whether the issue has been proved may often be conveniently restated by asking whether any other conclusion is possible on the evidence. But it is not a different question; it is merely the same question conveniently reformulated ina manner fitting particular circumstances. Further, the need which is sometimes felt to describe the possibility spoken of in the reformulation as "real" is not intended to introduce a new element into the test but merely to express the test more emphatically. The intention is not to import a requirement of a particular degree of possibility but to emphasise that, in the particular context, a possibility cannot be created by a mere flight of the imagination; the possibility which will suffice must be one which is "real" only in the sense that it is not 35. merely "fanciful". All such explanations of a concept such as reasonable doubt run the risk of the "easy drift" spoken of by Windeyer J. in The Commonwealth v. Butler (1958) 102 C.L.R. 465, 479 to a point at which the exegetical formula becomes substituted for the true test. The problem is exacerbated because the terms used to expand and explain almost inevitably themselves become the subject of semantic debate which necessitates further elaboration. As Windeyer J. said in Butler at p.480, the words of a statute are more easily applied without such glosses. The test sometimes adopted in the criminal context by drawing a contrast between "real" and "fanciful" possibilities does not have an exhaustive operation. There is an unspoken premise. There must be evidence of the essential elements of guilt, which may include evidence of circumstances from which appropriate inferences may be drawn, before any possibility arises that guilt is the only rational conclusion. The answer to the question whether guilt is the only rational conclusion then depends upon all the evidence, including such evidence, if any, as suggests the possibility of innocence. A "real" possibility of innocence may be founded on something in the evidence which points to innocence or may arise from a lack of sufficient cogency in the evidence of guilt or from some deficiency in the range of that evidence. A "real" possibility of the non-existence of a fact in the sense of a possibility that is not merely fanciful may be left open by evidence, although there is 36. nothing in the evidence which points to that possibility. The possibility may in such circumstances be "speculative" but it is nonetheless "real", not "fanciful", in the relevant sense for the very reason that, on the evidence, the existence of the fact is not the only rational conclusion. If there is no evidence of some essential element of an offence, or if the evidence is neutral in the sense that it leaves some essential element unknown, there is no rational basis for a choice between guilt and innocence. Guilt is not the only rational conclusion. There is no need that there also be evidence which points to a "real" possibility of innocence. That "yeal" possibility is left open by the evidence. There are few specific obligations imposed on an applicant by the Act; see, for example s.24AA. Nowhere can we find any indication that logic does not similarly govern the proof required under the Act, although the description of the operation of the principles is affected by some differences in the exercise called for: cf. Law's Case in the Full Court at p.152 (31 A.L.R.). Generally speaking, the prosecution ina criminal trial is concerned to establish a positive conclusion from proof of positive allegations consisting of the essential elements of a charge. Under the Act, apart entirely from the question whether it is correct to consider the proceedings as adversary with an onus placed upon the Repatriation Commission, it its anegative proposition of which the Tribunal must be satisfied beyond reasonable doubt; namely, that there are "insufficient grounds for granting the claim..." on any of the 37. alternative bases of entitlement for which the Act provides, for example, in s.101. For the Tribunal to be satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim as a conclusion of fact on the evidence (Law's Case in the Eigh Court at p.651 (147 C.L.R.)), the Tribunal must be satisfied to the prescribed standard of the non-existence of at least one constituent ingredient of each statutory basis of entitlement. On the material, that constituent ingredient, or, if it consists of more than one essential factual element, one of those essential elements, must be negatived beyond reasonable doubt. The operation of the same principles of logic in a consideration of the Act leads us to the following conclusions. If there is material which tends to disprove a fact, the question arises whether the non-existence of that fact is the only rational conclusion on all the material, including such material, if any, as points to the possibility that the fact does exist. A "real" possibility of the existence of that fact may be founded on something in the material which points to its existence or may arise from a lack of sufficient cogency in the material to disprove its existence or from some deficiency in the range of that material. A real possibility of the existence of a fact may be left open by material although there is nothing in the material which points to that possibility. The possibility 38. may in such circumstances be "speculative" but it is nonetheless "real", not "fanciful", in the relevant sense, for the very reason that, on the evidence, the non-existence of the fact is not the only rational conclusion. If there is no material in respect of a fact, or if the material is neutral in the sense that it leaves the existence of the fact unknown, there is no rational basis for a choice between the conclusion that the fact does exist and the conclusion that it does not. The non-existence of that fact is not the only rational conclusion. There is no need that there also be material which points to a "real" possibility of the existence of that fact. That "real" possibility is left open by the evidence. Thus, it may not be established beyond reasonable doubt that incapacity or death is not "connected with" war service either because there is material which points positively toa cause of the incapacity or death which is or might be so "connected" (as, for example, in Law, Byrne and Morcombe), or because of some inadequacy in the material to show the absence of a connection. The English cases are not themselves clear and unambiguous in their approach to a similar problem and there is an observation in Lennell to the effect that they cannot be applied to control the operation of the Act. Nonetheless, we are fortified in what we perceive to be the logic of the situation by the statements of Edmund Davies J. (as his Lordship then was) in 39. Coe v. Minister of Pensions and National Insurance £1967] 1 Q.B. 238 at pp. 241-242. See also A.S. Smith v. Minister of Pensions (19473 1 W.P.A.R. per Denning J. (as his Lordship then was) at p.498. Further, what we have said accords with what the High Court held to be the position with respect to a taxpayer's onus under 3.190 of the Income Tax Assessment Act, 1936, as amended. Recent cases in which there has been discussion of a taxpayer's obligation to disprove intention or purpose include Commissioner of Taxation v. Macmine Pty Ltd (1979) 53 A.L.J.R. 362 and McCormack v. Commissioner of Taxation (1979) 53 A.L.J.R. 436. The operation of these principles is likely to vary in effect according to the fact to be disproved. But it is important to emphasise that the differences are not in principle but only in the application of the principle to differing circumstances. If the material leaves the cause of death unknown, it is likely to prove extremely difficult to be satisfied that the death was not "connected with" war service in a manner specified in the Act. However, the possibility of an exceptional case may be left open as it was in Lennell's Case in relation to an incapacity of unknown aetiology because it is a judicial necessity to acknowledge such possibilities lest the law should appear to have been laid down in a way which excludes them from consideration: cf. Hughes and Vale Pty Ltd v. N.S.W. (No. 2) (1955) 93 C.L.R. 127, 164. Rose provides an example of a case in 40. which a matter was remitted to the Tribunal for determination, as a question of fact, whether the material proved beyond reasonable doubt that a death of unknown cause was not "connected with" war service. It may well be easier for the Tribunal to be satisfied that there are insufficient grounds for a claim where the nature of an incapacity in respect of which a pension is claimed or which is identified as the cause of death is known, but it is unknown what caused the incapacity. In such cases, it is quite feasible that the Tribunal might be able to be readily satisfied beyond reasonable doubt by the material that the incapacity is not connected with war service. For example, medical evidence might establish that such an incapacity may only result from trauma and that it always becomes manifest within one month of the trauma. Provided that such evidence was accepted, and there was no material evidence to the contrary or any such evidence had been properly rejected, the Tribunal might well conclude that war service which occurred many years ago had no connection with the incapacity or, where appropriate, the death. Satisfaction that there is no connection might often be even more easily achieved where not only the incapacity but its cause is identified. It seems probable that, in such cases, direct evidence would often be available as to whether or not the connection did or might exist. 41. In large part, the respondent's argument appeared to founded upon a misconception. Its argument assumed that, unless the Tribunal only had to be satisfied beyond reasonable doubt of the non-existence of those possibilities which were, on the material, identified as "real" possibilities, all theoretical possibilities would have to be identified and individually disproved by the material before a claim could be rejected. Of course, a search for disproof of individual theoretical possibilities is one way in which a claim could be approached. However, it is not the only way. As we have already indicated, and as was pointed out in Lennell, Bishop and Compton, an issue such as whether an incapacity of unknown aetiology was connected with war service can be disproved by more general evidence that, whatever the cause of the incapacity, it was not or could not have been so connected. Further, as Fitzgerald J. sought to point out in Rose, although an essential fact is left unknown or insufficiently clear by the material, it may in some cases be appropriate because of the circumstances to draw inferences which justify or support a conclusion that there are insufficient grounds for granting a claim. For example, in some cases an inference adverse to a claimant might conceivably be drawn from his or her failure to provide available material in support of the claim. It is noteworthy, however, that para 24AA(1)(b) of the Act refers only to such evidence as is available to the claimant as he considers will support his claim and para 24AB(3)(a) implicitly recognizes the possibility that no evidence may be furnished hy a 42. claimant. Indeed, the whole tenor of ss. 24AA, 24AB, 47 and 107VH acknowledges that a claim may succeed in an appropriate case even though there is no material which positively shows a basis for a conclusion in favour of a claimant. Although no such submission was made in this case, it is sometimes submitted for the respondent that, if there is nothing in the material to point toa "reali" possibility that incapacity or death was "connected with" war service, an inference should be drawn that there is no connection because the statutory process is investigative not adversary, a proposition said to be supported by dicta in the judgment of the Full Court in Law and perhaps in the judgments of Toohey J. in Bishop at p.468 and Compton, although his Honour's remarks were in terms directed only to the duties and functions of a Repatriation Board. The argument is that, because the statutory process is investigative, it will produce any material which might point to a possible connection and, if it does not do so, there must be no such material, and, if there is no such material, there must bea finding that there is no connection. There are significant differences in the statutory provisions concerning the respective statutory functions and duties of a Repatriation Board, the Repatriation Commission, and a Repatriation Review Tribunal and it might be asserted with considerable force that Part IIIA Division 6 of the Act does import many characteristics of adversary proceedings although there are special provisions which distinguish the proceedings of @ Repatriation Review Tribunal from more traditional adversary 43. proceedings; for example 3.107VZ which permits the Tribunal to request the Secretary of the Department to provide documents and to arrange for the making of investigations and medical examinations and s.107VG which provides that the Tribunal is not bound by technicalities legal forms or rules of evidence and must act according to substantial justice and the merits and alli the circumstances of the case. However that may be, insofar as the submission requires the inference to be drawn whenever the aetiology of an incapacity is unknown and there is no material which points toa reali possibility of a connection, it breaks down at a number of points. The inference sought to be drawn by such an argument requires far more than that the statutory process is capable of description as investigatory. It is by no means apparent, either in theory or practice, that the implementation of the process for which the Act provides does produce all available material. Perhaps more importantiy, even assuming an entirely thorough investigation, whether or not an absence of material in respect of an issue could justify an inference of disproof beyond reasonable doubt would very much depend upon the nature of the issue and other circumstances, including the degree of probability that material would be available if there was a "real" possibility of an affirmative conclusion and any other evidence which supported the negative conclusion. Where what is in question is the existence of a possible connection between war service and incapacity or death, the absence of affirmative 44, material will often be related to gaps in current medical knowledge. Further, the absolute position contended for in the argument would often collide with the requirement in sub-s. 107VG(b) of the Act that the Tribunal - ",.. shall take into account any difficulties that, for any reason, lie inthe way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to - (1) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or (ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a member of the Forces was not reported to the appropriate authorities." That is not to deny that, in an appropriate case, an absence of material which points to a "real" possibility that there is a connection may support or assist to support a conclusion that there was no connection between war service and incapacity or death. But no such inference could be drawn as a matter of course, and a submission that it must be drawn cannot stand in logic or in law. What if any inference can or ought be drawn depends on all the material and does not depend merely on the nature of the statutory process and an absence of material which points to a "real" possibility that a particular connection exists. In our opinion, therefore, the respondent's argument with respect to the operation of s.107VH of the Act cannot be accepted. 45. However, nor is the appellant's submission acceptable that a claimant is entitled to succeed unless the respondent proves or disproves even non-essential issues of fact beyond reasonable doubt. Satisfaction beyond reasonable doubt is required in relation to essential facts. Not every item of material which bears upon or may bear upon any factual issue must necessarily meet the standard of proof beyond reasonable doubt. For example, satisfaction to a lesser standard in respect of each of a number of evidentiary facts considered separately may sometimes suffice to justify or assist to support a factual conclusion beyond reasonable doubt based upon those facts collectively. There is discussion of this issue in the context of a criminal trial in the as yet unreported decision of the High Court of Chamberlain v. R. in which judgment was delivered on 22 February 1984. The opinion which we have expressed seems to us to conform with what was said by Gibbs C.J. and Mason J. in their joint judgment and by Deane J. Chamberlain, supra, is also of assistance in relation to the difficulty of obtaining satisfaction beyond reasonable doubt in the face of conflicting expert opinions. See also Law (1980) 31 A.L.R. 140, 153; (1981) 147 C.L.R 635, 651. Obviously, the requisite satisfaction cannot be achieved by a tribunal if even the experts admit doubt. However, that 18 not the only situation in which doubt must exist. In Chamberlain, Gibbs C.J. and Mason J. said: 46. ",.. It is of course the function of the jury to consider which of two bodies of conflicting evidence, technical or otherwise, they will accept. In the present case, Bowen C.J. and Forster J., in the Federal Court, said: 'Had we seen and heard ail the evidence on this topic being given, we might have concluded otherwise, but situated as we are, we have no doubt that the jury was entitled to prefer the evidence of one group of experts to that of the other group.' Jenkinson J. took a different view. He said: 'Those means of evaluating evidence which the jury enjoys by hearing and watching witnesses, and which are denied an appellate tribunal, could not in my opinion have enabled the jury reasonably to have eliminated the doubt, as_ to whether the matter tested contained foetal haemoglobin, which a careful consideration of the transcript of evidence and the exhibits raises in the mind. It may be conceded, as counsel for the Crown submitted, that idiosyncracies of manner and voice may undermine confidence in the reliability of a witness. But the evidence of Professor Boettcher and of Professor Nairn claimed the consideration of the jury upon grounds which could not rationally be shaken substantially by those things which the eyes and ears of a jury receive, but which a transcript does not reveal. Each of them was giving his opinion on matters of science within disciplines of which each was a master, and at a level of difficulty and sophistication above that at which a juror, ora judge, might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation. The reasoning by which other expert witnesses criticised the conclusions of Professor Boettcher and Professor Nairn, as well as the reasoning by which the latter two witnesses supported those conclusions and criticised the conclusions of the others, were all matter for the jury's evaluation. But in my opinion no juror 47. could reasonably have failed to acknowledge that, reason ag he might, he was not ina position to assure himself of the correctness of a conclusion against the opinions of the two professors to the degree which would eliminate reasonable doubt as to that conclusion.' We agree with Jenkinson J. The most that could be said against Professors Boettcher and Nairn was that their work was done in the comparative seclusion of academic surroundings, so that they lacked the day-to-day experience of the forensic scientists called for the Crown, and that they exhibited 'an unbecoming arrogance' (in the words of Bowen C.J. and Forster J.) and that Professor Boettcher did not fare well in cross examination. There was no challenge to their knowledge or their honesty or impartiality. The criticisms they advanced appear to be rational and conpelling. Of course the Crown witnesses had answers to those criticisms. We do not doubt that if the question was whether there was evidence to support a finding that the biood in the car was foetal blood, the question should be answered in the affirmative. But when the question is asked whether such a finding could safely be made it seems tous that the answer must be in the negative. The conflicting evidence should have raised a doubt in a reasonable mind, and there is no other evidence that can resolve the doubt before a decision on the verdict is ultimately reached. We conclude therefore that, in the present case, we must proceed on the basis that the jury were entitled to accept as a fact, from which inferences might be drawn, that those parts of the car, and those articles in it, that responded affirmatively to the tests had blood upon them, but that they could not safely accept as a primary fact that the blood was foetal blood." Deane J., who dissented in the result, also agreed with Jenkinson J., although Brennan J., the third member of the majority, did not. 48. The views which we have earlier expressed persuade us that the appeal must be allowed, but leaves us less certain whether it is appropriate to reverse the Tribunal's decision or to remit the case for re-determination, although most reluctantly. Our reluctance is increased because it is obvious that the Tribunal members who have thus far been involved and are familiar with the matter would be embarrassed and the appellant might be dissatisfied if the Tribunal is not reconstituted. Further, the actual outcome of this case may not determine other seemingly similar claims. Each must be decided on its own facts and there will always be differences which may or may not be material. For example, while many who served during the war experienced stress, by no means all would have developed an anxiety neurosis during war service as a result. The error of law involved in the Tribunal's failure to provide adequate reasons, including any findings of fact, to justify its conclusion plainly justifies no more than the remission of the proceedings for redetermination. Had the Tribunal rejected the appellant's claim merely because of aview that the appellant's war time stress and resultant anxiety neurosis were not attributable to war service, it might be sufficient to hold that its decision was substantially founded on an erroneous view of the legal questions involved in that aspect of the matter. 49. Such an error of law would no doubt have infected the Tribunal's decision that the appellant's essential hypertension wag not attributable to war service. However, it is possible that the Tribunal also might have considered that, even if the appellant's war-time stress and resultant anxiety neurosis were attributable to his war service, no connection exists between the appellant's war time stress and resultant anxiety neurosis and his essential hypertension. If so, this critical portion of the Tribunal''s conclusions would have been entirely factual in character. It would be necessary to reverse any such factual finding before it could be ordered that the appellant's claim be granted. Somewhat similar difficulties seem to us to lie in the path of the appellant at this point as confronted the respondent's attempt to uphold the decision to reject the appellant's claim by reference to the findings, with the difference that it is the negative which must be established under the Act. It 1s necessary to be cautious not to engage in artificial analysis and interpretation of segments of what the Tribunal said in order to arrive at what is considered to bea preferred resuit. It is therefore not without considerable hesitation that we have concluded that the Tribunal's decision should be reversed. 50. The evidence was canvassed at length in the course of the appeal which extended over 4 days. We see no purpose in discussing it in detail. There was a serious conflict of expert evidence. Where as here, there has been a _ comprehensive investigation, the claim must succeed if no tribunal, properly directing itself as to relevant matters of law, could have been satisfied beyond reasonable doubt that there was no "connection" between Mr O'Brien''s war service and his hypertension: cf. Byrne at pp. 302-303 (40 A.L.R.). We have the gravest doubts whether such a conclusion was open to the Tribunal consistently with the observations in Law and Chamberlain with respect to conflicts of expert evidence. But, in any event, there seems to us to be another basis for the conclusion that the pension should be granted. Shortly stated, we think that the Tribunai's reasons support the view that it was not satisfied beyond reasonable doubt that the appellant was not caused stress during the war by hig inability to handle the pressures which we have earlier described. It erred in law in our opinion in concluding that such stress was not attributable to war service. Its reasons, taken asa whole, indicate that it was not satisfied beyond reasonable doubt that his post-war stress in the period 1946-1957 did not have a causal relationship with his essential hypertension. That being so, the evidence could not have -? 51. persuaded it beyond reasonable doubt that the war-time stress did not have sucha relationship. No sufficient basis emerged to distinguish between the two periods to the requisite degree of certainty, if at all. In our opinion, therefore, the Tribunal could not have been satisfied beyond reasonable doubt that the appellant's essential hypertension is not attributable to the stress to which he was subjected during and by his war service. On the material, including in this case material which in fact pointed to such a possibility, that was a real possibility. Reference has been made in previous cases to problems caused by the drafting of the Act and in this case the Tribunal criticised "the costly and inefficient procedures" which attend the resolution of claims for pension under the Act. One may add how obviously unsatisfactory it is for a claimant where, as here, so many years have elapsed before the final determination of his claim. In the ten years since the claim was made, the dispute has been before a Repatriation Board, the Repatriation Commission (five times), a War Pensions Entitlement Appeals Tribunal (five times), a Repatriation Review Tribunal, the Administrative Appeals Tribunal, and this Full Court. The bodies appointed to decide claims and expert witnesses who give evidence before them continue to be troubled by the application of the requirement that negative propositions be established beyond a reasonable doubt to circumstances in which there are deficiencies in the evidence or conflicts of "se 52. evidence, particularly conflicts of expert opinions. Evidence is frequently directed to attempts to establish a positive rather than a negative conclusion, and it is apparently not found easy to apply that evidence to answer the question posed by the Act. The difficulties experienced in the implementation of the Act are a matter of obvious concern and it may be open to question whether the means which have been chosen to ensure a beneficial attitude towards ex-service personnel are really advancing their interests and those of the community as a whole. The expense of administering the system for determining claims must be very large. Often a decision 1s made by a body of three members. There is a tendency for the same basic medical issues to be relitigated time and again, with ever increasing escalation of the number and weight and variety of experts called on each side. There are an increasing number of cases coming before the Court on appeal, many legally aided with of course the Commonwealth's resources also being used to attempt to support the respondent Répatriation Commission. Technicalities are constantly intruded into a system in which they can be intended to have no place. The questions of law said to arise almost invariably include the question whether the decision appealed from was open on the evidence consistently with the evidentiary obligations under the Act, involving the preparation of lengthy and expensive records and lengthy and expensive review of the evidence by the Court. Particularly in respect of those who saw service during or prior to the Second World War, who must now be decreasing significantly in number, it may be that the cost of administering the system to preclude claims by those who are 53. incapacitated but do not otherwise satisfy the prescribed statutory requirements is not warranted. However, conditions of eligibility remain part of the existing law. It was pointed out in Law that the consequences of the Act are likely to include the grant of pensions on what may be unfounded claims. That is not a matter for concern by the Commission or the Tribunal or the Courts. Their role is simply to give effect to deliberate legislative policy, once understood, however difficult the language in which it is expressed and however surprising the results. There are numerous factors which lead to such results, not only the requirement of proof of the negative beyond reasonable doubt. Medical science remains imperfect and language of extremely wide import has been used in the Act to express the conditions of eligibility. Nonetheless, there are limits upon what can be said to arise out of or be attributable to war service, to take para 101(1)(b) of the Act as an example. The provisions of the Act can only be correctly implemented by reference to adequate and properly directed material. Although the proceedings should not be seen as strictly adversary, the responsibility for the provision of such material must rest heavily upon the Commission. Departmental medical reports which constitute mere literal compliance with 8.48 of the Act will seldom if ever be adequate and such a report in isolation may often prove positively unhelpful. That is not to say that medical opinions on whether or not an incapacity of unknown aetiology was "connected with" war service may not be of assistance; obviously they will frequently be of assistance: cf. Bugg per Sheppard J. However, perhaps especially in cases 54. where causation is in doubt, an expert's opinion will probably be useless if based upon a misconception of the Act's operation and will be difficult, if not impossible, to evaluate if the reasoning which led to it is not disclosed. The task of the Commission and departmental employees is to facilitate the operation of the Act, not frustrate if (cf. Law's Case at p.640 per Murphy J.); claims are not to be defeated by problems being disguised. We would allow the appeal and grant the appellant's claim. The respondent must pay the appellant's taxed costs of and incidental to the appeal. This 1s to certify that this and tne preceding 53 pages are a true copy of the Reasons for Judgment herein of their Ilonours Mr Justice Keely and Nr Justice Fitegerald AssG&ciate 9 April 1984