CAT ORDS Repatriation - former member of armed services suffered teratoma of the testis - question whether that incapacity resulted from an occurrence that happened during a period of special service, or arose out of or was attributable to special service, or was aggravated by the conditions of special service - cause of teratoma obscure - effect of obscurity of cause in proof beyond reasonable doubt that incapacity not caused by the special service - statutory standard of proof - the intention of Parliament in enacting that standard of proof - the factors the Tribunal should ideally seek to identify and consider or have brought to its attention in considering whether the evidence showed beyond reasonable doubt that the incapacity was not related to special service - the interpretation given to the medical evidence by the Tribunal. Repatriation Act 1920: ss.47(2) 107 VH(2) (a) Repatriation (S VG No. 31 of 1984 Smithers ACJ, Sweeney and Keely JJ. 5 September 1984 Melbourne. IN THE FEDERAL COURT OF AUSTRALJA ) ) VICTO. DISTRICT REGISTRY ) VG NO. 31 OF 1984 ) ) GENERAL DIVISION Between: LAURENCE TREVOR EVANS (Appellant) : REPATRIATION COMMISSION (Respondent ) Judges Making Order: Smithers ACJ, Sweeney and Keely JJ. Date of Order: 5 September 1984 Where Made: Melbourne. ORDER THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The respondent pay the appellant's taxed costs of and incidental to the appeal. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT ISTRY VG NO. 31 OF 1984 G DIVISION Between: LAURENCE TREVOR EVANS (Appellant) AND: EPATRIAT COMMISSION (Respondent ) Coram: Smithers ACJ, Sweeney and Keely JJ. 5_Septe r_ 1984 REASONS FOR JUDGMENT Sm rs ACJ.: I have had the advantage of reading the Reasons for Judgment of my brother Sweeney. I agree that the decision of the Repatriation Tribunal was open to it. I agree with the order proposed. However, I do desire to add further observations. The submission of the respondent is that on the evidence the Repatriation Review Tribunal (the Tribunal) could not fail to be satisfied beyond reasonable doubt that the appellant's incapacity did not result from an occurrence that happened 2. during his special service in Vietnam and did not arise out of and was not attributable to that special service. The Tribunal stated that it was not so satisfied. It has been said that where all that appears are circumstances, anda connection between those circumstances and the incapacity cannot be seen as a real possibility, then, if the actual cause is unknown, it is impossible not to be satisfied beyond reasonable doubt that the circumstances stated were not causally related to the incapacity. To my mind this does not accord with the provisions of s.107 VH(2)(a) of the Repatriation Act 1920 (the Act) which, with respect to the function of the Tribunal ona review of the decision of the Repatriation Commission (the Commission) refusing a claim for a pension, enacts that that decision shall be set aside unless the Tribunal is satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. That provision is similar to that contained in 8s.47(2) of the Act which requires the Commission to grant a claim for a pension unless it is satisfied beyond reasonable doubt that there are insufficient grounds for granting it. It is to be noted that until 1979 the provision in s.47(2) of the Repatriation Act 1920 was that "the onus of proof shall lie on the person or authority who contends that the claim... should not be granted." This provision was amended by s.11 of the Act No. 18 of 1979 to enact what is now s.47(2). It was by 8.26 of that same Act that the provision 3. now in s.107 VH(2)(a) was enacted. It is not to be doubted that the legislature intended that the standard of satisfaction specified in 8.107 VH(2) (a) is to be unequivocally understood according to its terms. The determination of Parliament that a veteran with an incapacity possibly due to war service should be awarded a_ pension although the causal relationship between the service and the incapacity may remain unclear is clearly manifested. Not satisfied that a claim might fail only where a Tribunal was satisfied on the balance of probabilities that there was no such relationship, Parliament went to the length of providing, in effect, that before a claim should fail the Tribunal must be satisfied beyond reasonable doubt that there was no such causal relationship. It was said by Toohey J. in Repatriation Commission v. Compton No. WAG 49 of 1983 (unreported) :- "What I sought todo 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 toa conclusion that the onus had not been satisfied "unless the evidence pointing to a _ connection between death and war service should be dismissed To these observations as merely fanciful". 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 Lennell v. Repatriation Commission (1982) 4 ALN No. 29." may be added those of the Full Court in Lennell v. Repatriation Commission (1982) 4 ALN No. 29, N54 at N55 in the joint judgment of Northrop and Sheppard JJ:- But as -»- 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 case could not have been related to war service." pointed out in the joint judgment of Keely and Fitzgerald JJ. in O'Brien's Case, 11 April 1984 No. G64 of 1983 (unreported) "... 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 to a cause of the incapacity or death which is or might be s0 "connected" (as, for example, in Law, Byrne and Morcombe), or because of some inadequacy in the material to show the absence of a connection." In any case where the cause of an incapacity is unknown and the evidence submitted by an applicant in support of a claim disclose circumstances by reference to which the Tribunal is satisfied beyond reasonable doubt that whatever the cause might have been there was no connection between the war service and the incapacity or where by reference to those circumstances and evidence called specifically to rebut such a connection the Tribunal on all the evidence is satisfied beyond reasonable doubt that whatever the cause might have been there was no connection between the service and the incapacity the claim may be dismissed. In any case in which the cause of the incapacity is unknown the problem is to determine whether any aspect of the war service was possibly involved. The Tribunal is faced with the problem of identifying possible causes of the incapacity and determining whether there might possibly be a connection between some aspect of the war service and the initiation or development of the relevant disease. Until the range of possible causes is identified and the aspects of war service which might possibly operate relevantly to any such cause are 6. identified a Tribunal is in difficulty in coping with the questions as to whether it can achieve satisfaction beyond reasonable doubt that no such aspects were operative in relation to the incapacity. The question before the Tribunal was one of fact. Was it satisfied beyond reasonable doubt that the incapacity to the appellant did not result from an occurrence that happened during his period of special service including the contracting of a disease during such a period and did not arise out of and was not attributable to and was not aggravated by the conditions of his special service. Like any other Tribunal of fact it was entitled to have regard to the common experience of mankind. It was also entitled to act on such knowledge of medical matters as it had. If one wished to satisfy a Tribunal that it should be satisfied that an event in the special service was not the cause of an incapacity one would attempt to identify the morbid bodily condition which constituted the incapacity, describe its development from its beginnings to its ultimate condition constituting the incapacity. Having done that one would look at the conditions experienced in service, identify them all, and endeavour to show beyond reasonable doubt that none of them could have been an operative and substantial factor in the onset or development of the relevant bodily condition to its ultimate stage constituting the relevant 7. incapacity. Unless a process of this nature is undertaken the Tribunal will inevitably be left in doubt as to whether the ultimate condition might not have resulted from some aspect of the war service. Where the medical evidence is that the cause is unknown in the sense that it is conceded that any event of any description might have caused the onset or relevant development of the condition, or that the onset or development might have been spontaneous bodily action, it would be impossible for a tribunal to be satisfied beyond reasonable doubt that any one of the events that might have occurred during a given period of service or at a particular place of service was not a cause. But one would think that it would be seldom that a tribunal would have to be left to operate in such a void. Although, as in this case, the cause of the onset and relevant development of the condition was unknown, one would think that at least the range of possible causes could be identified. It might have been difficult to identify the range of possible relevant events to which the victim might have been exposed at the relevant time and place. If each or perhaps either of these objectives are achieved it possible for a tribunal with the assistance of evidence to say that there could be no connection between any of the possible events and any of the possible causes. In this case the Tribunal was told by Dr. Dunn that it was his opinion that the cause of the condition was hormonal imbalance, that that was the only cause, and that nothing in the special service contributed to cause or aggravate the hormonal imbalance. But Dr. Dunn also told the Tribunal that the cause of teratoma of the testis was obscure, which necessarily means that it was unknown, and he did not state all those events internal or external to the body which were within the range of possible causes. Thus the Tribunal was left in ignorance as to the nature of the range of those events which might possibly cause a condition such as that suffered by the appellant. Dr. Dunn gave no reason for his opinion that the hormonal imbalance was not aggravated by any event involved in the special service. In informing the Tribunal as to the cause of teratoma of the testis Dr. Dunn told the Tribunal that the cause was obscure. He told the Tribunal that some authorities believed that hormonal imbalance or trauma was the cause. It was to be inferred from the evidence of Dr. Dunn that he was of the opinion that trauma could be disregarded because there was no evidence of any relevant trauma, that the effect of insecticides could be disregarded for reasons that he gave, and as mentioned above, that the cause of the appellant's condition was hormonal imbalance not aggravated by the conditions of special service. It was to be inferred also 9. that in forming this third item of his opinion he relied on the belief of "some authorities" and the undoubted fact that before and during his service the appellant suffered from hormonal imbalance. It appeared from Dr. Dunn's evidence that he claimed no special expertise as to the cause of teratoma of the testis. The third item of his opinion was expressed in response to provisions in the official form which required him to state an opinion as to the cause of the incapacity in the case of the appellant. It was not surprising that knowing the belief of "some authorities" that hormonal imbalance was the cause and that the appellant was a sufferer of that condition, he should express the opinion that he did. But the question is whether the Tribunal was bound to give such weight to that opinion as to be persuaded beyond reasonable doubt that in the case of the appellant the special service was not a cause of the incapacity. Dr. Dunn's evidence indicated that not all authorities held the same belief as that of those whom he had in mind. It remained, from his evidence, that authorities other than those holding the stated belief, had the belief that teratoma of the testis was caused by conditions or events other than the existence of hormonal imbalance. These other conditions or events were not stated specifically nor was the range thereof. Accordingly, taking Dr. Dunn''s evidence as far as it went, the Tribunal was in the position of knowing that although some unnamed authorities believed that hormonal 10. imbalance was the cause of teratoma of the testis, there were other authorities, presumably just as knowledgeable, who had a different belief as to the cause. No doubt the fact that the appellant did suffer from hormonal imbalance added a degree of probability to the notion that in his case the cause was hormonal imbalance, but, in the knowledge that there were authorities who did not believe that hormonal imbalance was the cause of teratoma and that there were other events or conditions which might cause it, it would be difficult for the Tribunal to be satisfied beyond reasonable doubt that hormonal imbalance was the only cause of the appellant's teratoma. An event or factor constituting an operative and substantial causal element although perhaps in conjunction with other events or factors is in contemplation. Compare Law _ wv. Repatriation Commission (1980) 31 ALR 140 where the expression "attributable to" is discussed, and The Commonwealth of Australia v. Keogh 24 November 1983, SA No. 23 of 1983 (unreported) where the expression "resulting from" is discussed. While it remained open that a cause or causes other than hormonal imbalance were responsible for teratoma of the testis the onus of proving to the satisfaction of a Tribunal beyond reasonable doubt that the appellant's incapacity was due to hormonal imbalance and no other cause could not on the evidence, be carried. Similarly, if causes other than hormonal imbalance were a cause, and not identified, there was ll. difficulty in proving that some event or condition, in the multifarious experiences of the appellant in his service, did not operate to activate that cause. It is therefore, not surprising that the Tribunal was not satisfied beyond reasonable doubt that the appellant's condition was, putting it shortly, not due to his special service. There was, of course, the question whether, if the incapacity of the appellant were due to hormonal imbalance and that alone, that condition had not been aggravated by some aspect of the special service so that it was activated ina way that promoted the teratoma of the testis. The learned Judge expressed the opinion that the Tribunal misinterpreted the evidence of Dr. Dunn in relation to the opinion he had expressed. In the critical passage in its decision the Tribunal referred to the medical evidence before it as follows:- "The medical evidence that was before the Commission has been fully referred to and adequately summarised in the reasons for decision given by a Repatriation Board on 17 August 1981 and a copy of those reasons has been made available to all parties to this proceeding and they need not be repeated here. In brief, that evidence is to the effect that the precise cause of teratoma of right testis is obscure but believed to be due to hormonal imbalance and in some cases, related to trauma. In the applicant's Cappellant's] case it is considered that hormonal imbalance is a factor, the Applicant having undergone breast surgery in May 1970, after a 12 month history of tender 12. slightly swollen right breast." Dr. Dunn's evidence was that hormonal imbalance was the cause, not a cause or a factor causing the appellant's incapacity. Nevertheless I do not read the statement of the Tribunal set out above as indicating that there was a misrepresentation of Dr. Dunn's evidence or opinion. To my mind the Tribunal, in this passage, is not purporting to state Dr. Dunn's opinion as given by him in evidence as to the cause of the appellant's condition in full or in part. The critical passage appears to be a recapitulation of the finding of the Repatriation Board. It repeats almost word for word the opinion of the Board given in relation to the medical evidence in the appellant's claim. The passage refers to what is said to be the effect of the medical evidence given before the Board. The last sentence in the passage is directed rather to emphasise the strength of the evidence that hormonal imbalance really was a factor in causing the appellant's condition, not as indicating that the Tribunal understood that the medical belief referred to was that the hormonal imbalance was not the one and only cause. It performs that function well. The critical words in the passage follow the Tribunal's reference in its decision to the decision of the Board, a copy of which the Tribunal states it 'had given to all parties to the appeal before it. In the tontext, and the reference by the Tribunal to the statement of "che reasons and decision of the Board and its accessibility to $1 parties, I would believe the relevant passage in the 13. Tribunal's decision to be a statement of the view taken by the Board as to the effect of the medical evidence. The expression "it is considered" is not tobe interpreted as stating what Dr. Dunn or any other medical person considered, but as a statement of what the Board considered. The important point is that it does not purport to recapitulate what Dr. Dunn said, but to be a statement of what the Board and perhaps the Tribunal considered the effect of the evidence to be. If it is to be taken as a decision of what the Tribunal considered, it would constitute a reasonable conclusion from the evidence and would represent the extent to which Dr. Dunn's evidence was accepted. Also it would accord with the statement in the Tribunal's decision that "the medical evidence is strong that hormonal imbalance was involved but that is only one factor in an obscure cause.". And of course the Tribunal's reasons continue:- "The evidence clearly is that there is insufficient known of the condition to form a firm conclusion of what factors are involved. Certainly the medical evidence on hormonal involvement is strong but that is only one factor in an obscure cause. The evidence does not exclude to the degree of proof required under the Repatriation Act, other factors that as a real possibility, may be involved in the onset of the condition from which the member suffers." And the other factors were some unknown cause relating to some aspect of the appellant's experience in Vietnam, including possible aggravation of the hormonal imbalance by some such experience. 14. If hormonal imbalance were the cause, the question arose as to whether that condition itself might not have been aggravated by the events experienced by the appellant in Vietnan. In that connection it is to be noted that the appellant performed combat duties in Vietnam. Such duties would involve experiences of all sorts, most difficult to be identified by those without combat experience. But it would require little imagination to contemplate that emotional Pressures in combat were likely to be intense, to envisage the possibility that hormonal secretions might be affected in some way, especially where there was already an imbalance, and that there might be symptoms from such effects. That such symptoms might occur in the putative target area of hormonal imbalance, would not surprise. In this connection, it is to be noted that in April 1970, during the special service, there were symptoms of hormonal imbalance in the form of mastitis of the right breast and @& small tender lump apparently inducing frequent palpatation by the appellant. In May 1970 a surgical biopsy was performed for a condition of gynaecomastia of the right breast. The Tribunal referred to this surgery as material to its decision. The connection of these symptoms with some aspect of the special service would remain a real possibility in the mind of a reasonable tribunal of fact. Dr. Dunn said that the hormonal imbalance was not aggravated by the war 15. service. No reasons for this were advanced. The hormonal condition, although evident before the period of the appellant's service, became active after a few months of the special service. Evidence might have been adduced on behalf of the respondent as to what conditions might aggravate the imbalance and why it was that there were new symptoms from it some five months after service commenced. Having regard to the foregoing it appears that this case is not one in which there was evidence of such strength that the Tribunal was required to find beyond reasonable doubt that the relevant cause, whatever it was, was not a factor involved in the special service. The learned Judge remitted the matter to the Tribunal for reconsideration on the ground that the Tribunal may have misdirected itself as to the relevant law. I have discussed the issue of possible misinterpretation above. As to the possibility of misdirection, I do not see any ground for concluding that it occurred unless the view be taken that there must be something in the material which points to the possibility real, as opposed to fanciful, of a connection between the incapacity and the war service if a pension is to be granted. As indicated above I consider that this view cannot be supported. The Tribunal had before it the opinion of Dr. Murphy 16. that he felt bound to support the appellant in his claim that something causally material to his condition of teratoma of the testis had occurred in his time in Vietnan. This statement of Dr. Murphy's opinion contains words not found in the document containing that opinion, but it is clear that words have been omitted. To make sense of what Dr. Murphy said words such as those I have used must be supplied. The Tribunal was entitled to understand Dr. Murphy's opinion as stated above, and, there is no reason to doubt that it did so. Dr. Murphy's opinion appears to have been based on the possible exposure of the appellant to Agent Orange. And he regarded the fact that the appellant's child, born after the service in Vietnam, died seven days after birth, as significant. The Tribunal noted that the appellant's representative before it did not pursue the suggestion that insecticide exposure could have been involved. And it is not clear that the Tribunal did not exclude the effect of exposure to insecticide as a possible cause of the incapacity because the representative of the appellant did not pursue it. It would seem that the term insecticide in the context is to be regarded as including Agent Orange. It is difficult to understand why a representative should "not pursue" the possibility that Agent Orange was a possible cause. But Dr. Murphy's evidence was before the Commission, and whatever the Commission's view of it may have been, the Tribunal's was required to have had regard to it: see s.107VH(1). The observations of the Full Court in Law's Case (1980) 31 ALR 140 17. at p.152 are in point, namely: "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 shall 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." Although the Tribunal found, as a material fact, that the appellant was exposed to some extent to insecticides during his special service, it would seem that it did not, in coming to its decision that it was not satisfied that some factor appertaining to the special service was not a cause of the incapacity, have regard to that exposure as one of the possible factors. Had it considered Agent Orange as a possible cause it might, having regard to the evidence given by Dr. Dunn, have properly excluded it as a possible cause. In the light of the foregoing observations, the appeal should be allowed. l certify that this and the /6 preceding pares ars a true crny a: | Reasons for Judgment herein ot his Lowa Mr. Justice Sn, Associat { Pateat $ fifty ee eemrnes we epee i IN. THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VG 31 OF 1984 wwwvew GENERAL, DIVISION ON AFPEAL. FROM A SINGLE JULIGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: LAURENCE 2ZREVOR EVANS Appellant ard REPATRIATION COMMISSION Respondent Corum: Smithers 4.C.J., Sweeney and Keely JJ. Places Melbourne [tate : 5 Sentember, 1984 REASONS FOR JUDGMENT Sweeney, J. On 17 August 1981 a Repatriation Board determined that the aimcapscity of Laurence Trevor Evans ("the appellant") resulting from teratoms of the right testis was not related to his service. On 19 March 1982 the Repatriation Commission ("the Commission") dismissed the appellant's appeal against this, determination. On 31 May 1983 the Repatriation Review Tribunal ("the Tribunal") allowed the appellant's appeal against the decision of the Commission, from which the Commission appealed on a question of law to a single Judge of this Court. The learned trial judge upheld the Commission's appeal, set aside the decision of the Tribunal and remitted the matter to at "to be heard and determined according to law after the hearing of any further evidence the Tribunal in its discretion sees fit to receive". The appellant's claim for 3 pension arose under the Repatriation | (Special Gverseas Service) Act 1°62, 8.6 which provides: *"(1) Upon the incapacity ... (a) of 3 member of the Forces whose ine apacity oes has resulted from an occurrence that happened during a period of' special service of the member ... 5; or Ct? of a member of the Forces whose Encapscity ... has arisem out of or 15 attributable to special service of the nember, the Commonwealth 16 ... liable to gay ta the member ... pems1loms ase (5) Where the origin af the cause of an incapacity or of the death of a member of the Forces existed before the commencement of a period of special service of the member and, in the opinion of the Commission or a Koard ~- (a) the ancapacity from which the member 15 suffering was contributed to im any material degree, or has been aggravated, by the conditions of that special service or the member's death has been contributed to in any material degree by those conditions; and (th) meither the incapscity or death, nor the erigin of the cause of the ancapacity or death, was due to the member's serious default or wilful act, the incapacity or death shall be deemed to have resulted from am occurrence that happened during that period of special service." It was mot disputed that the respondent's service 4s 4 combat infantryman am South Vietnam between 3 December 1969 and 18 June 1970 constituted "3 period of special service" nor that teratoma of the testis disgnosed in 1991 constituted an "incapacity". It was disputed that the teratoma "resulted from an occurrence' during that service, or "has arisen out of or 18 attributable to" that service. The Tritunal was required to set aside the decision of the Commission tnless 1t ws3s satisfied, beyond ressunable doubt, that there were insufficient grounds for granting the claim; see paragraph 107 VHC2)(a) Repatriation Act 1920, "the act". His Honour set out the appellant's history, whach showed that when he enlisted in 1967, he had declared that he had not previously suffered and was mot then suffering from = any significant 1rllness, or ainjury and his medical classification was Class A. The medical officer had recorded e:ternal genitalia as normal. After that date service records disclose, inter alia: "4.6.1968 ... This patient was admitted with sudden onset of headache and vomitang. On admission he had a temperature of 102.5 wath a few small axillary and groin glands but mo other specific abriormality we. Has generalised lymphadenopathy ... 13.6.68 ... To go home on 2 weeks sick leave and to complete 2 weeks trestment ... 20.10.69 ... Sebaseous cyst lobe of K.esr for removal. Hormonal mastopathy k.breast ~ present 12/12 - exploration only needed. 3.4.70 wae Tiagnosis: Mastitis Male Breast (hk) 10.4.70 ws. Small breast lump on (RK) tender to palpation which he 15 doing often. He 1s fixed on the 1des of mastectomy." The appellant was admitted to hospital on 11 May 1970 and was discharged 8 days later. Gynaecomastia of the raght breast was diagnosed and a surgical excision biopsy performed. It was mot disputed that the appellant had had 34 vasectomy 1m 1973 and the Tribunal made that finding. ca In May 1981, after the period of service, embryonal carcinoma and teratoma (mature) of the testis was diagnosed and a radical orchidectomy performed. This was later followed by @ bilateral radical lymphadenectomy. The medical history of the appellant at this juncture was summarized im a jetter from Mr. Murphy, 2 specialist surgeon, to Ir. Stirling dated 9 June 1981: "This fellow was admitted to hospital with a $1 month history of testicular swelling on the right hand side. He had had a previous vasectomy im 1973. His health has otherwise been normal. He has 3 past history of being in Vietnam and being exposed to Agent Orange. Subsequent to this Army service a child was born and died at the age of seven days, looked after ty the Geelong Hospital paediatricians. His genersl examination findings were mormal. He had 3 1.5 cm mass involving the lower pole of the right tesiis and on 15.5.8] f performed a radical right oarchidectomy with preoperative Reta HC and Alpha-thets protein levels. The diagnosis was confirmed as teratoms with embryonal elements. Subsequent to this a ehest x-ray and T.V.P. were mormal. & C.A.T. scam revealed multiple lymph nodes in the para-aortic region. on 1.6.81 a bi-lateral radical lymphadenectomy was performed including the external iliac chains because of his previous vasectomy. His supra-hilar lymph node area on each side was clear. There was macroscopic amd microscopic deposits in . the para-inferior ven cava and aortic regions. The lymph node in the right 1liac fossa region was also positive. Fost operative Beta HCG and alpha-theta protein levels have been requested. He has had a stormy post operative course but 15 mow on the road to recovery and due to te if) discharged in the next three days." Mr. Murphy later forwarded the following letter, dated 9 March 1983, to the Commission: "I refer to my previous letters a5 regards this man 9.6.81 who was shown to have a germ cell tumour of the right testicle. This = mare 1S progressing satisfactorily after the combination treatment of surgery, cytotaxics and 3 subsequent laparotomy. Tocan only Support him in his claim that his time aim Vietnam, exposure to Agent Grange and 3 subsequent child born which died at the age of seven days. Clinically he is remaining well amd all tests remain mormal.*® Having Su summarised the sppellant's medical hastory, his Honowr saidi- "In ats ressons, the Tribunal, somewhat charitably, stated that Mr. Murphy's letter of 9 March 'supports the applicant's claim for a pension without giving reasons for doing so'. Specific mention was made of 'Agent Orange'. In this context 2t 18 to be moted that the respondent had stated, inter alia, in his 'Statement in support of a claim for medical treatment and pension' in response to the question why he considered the conditions of his service eaused, contributed to or aggravated the teratoma; "On investigation from my Platoon Commander he anformed me that we served in areas that had been sprayed with herbicides.' * Section 107 VH 2 (a) of the Act which 1s made applicable in the present case by $¢.7(3A) of the Repatriation (Special Overseas Service) Act 1962, provides as follows:- The transcript Tribunal aim the "where the decision the subject of the review was 32 decision refusing a claim or application for pentiom-the Tribunal shall set aside the decision unless 1t as satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application.' Tribunal was referred to an extract from which Professor Tatters3ll gave expert evidence that: *1it 15 believed that cancer does mut occur un a single step, tut that rather, there is an oamsult to a cell, and that, following this, the cell is damaged but not in fact, a cancer cell until some further process takes place which 1s called promotion, and a totally different sort of agent may cause promotion compared with the agent which may eause the original ansult. Therefore, cancer 15 seen to occur ain at least two steps. The first being damage to the cell and the second, 1f you like the promotion of that damage to give rise to a cancer which may become clinically evident many years later." case of Lennmell v Repatriation Commission, tne of proceedings before the Administrative Appeals in He went on to say that the experience of Hiroshima victims supported *a lead time" extending up to 35 years. His Opinion was that the development of a cancer cell required the sequence of ainsulted cell, damaged cell, followed Ly the promoting agent. The material before that Tribunal anmcluded the foliowing passage:- "These views are confirmed by evidence given ty Dr. Db. Metcalf before the Administrative Appesls Tritunal ain the cases of Byrne, Coyle, Wackenden and Wraght vs. the Repatriation Commission and quoted by Tribunsl in its judgement (page 2): 'There 15 3 period during which a series of abnmarmal changes take place which Llesde- eventually to the consequence of the first truly cancerous cell. Thais 16 referred to as the pPre-cancerous or pre-neoplastic period and then there 1¢ a second period during which that first cell proliferates and eventually forms that large mass of cells that ais then detected clinically. The exact length of the two periods 1¢ not brnown for most human cancers bul it 1s Known am Special circumstances where some wiitratang cause was known, A generalisation, therefore, which 15 true for many cancers 15 that the total lenwth of the development period before the disease becomes apparent clinically as surprisingly long, commonly in the range of twenty to forty years and almost anverisbly symptomless in that ait 1s not aware to the patrent-to-be that they are, im fact, developing a disease.' Dr. Donald Metcalf 1s Head of Cancer Research at the Walter amd Elisa Hall Institute of Medical Kesearch, Melbourne, and is a world recognised authority.* As his Honour pointed out, the evidence led in Lennell's Case was familiar to the members of the Tribunal and had been applied in a mumber of cases. The Trabunal also had tefore it a detailed medical report submitted by a departmental medical officer, Dr. Wunny, which his Honour summarised. The report, on a standard form, was headed "Report ty a medical practitioner on the incapacity of a member of the Forces" and extracted sub-sections 48(1) and (2) of the Act. Thus the form explicitly stated that the médical practitioner was to set out his opinion as to the nature, cause and extent of the incapacity and as to whether that incapacity: (1) resulted from an occurrence that happened during his war service; ... (av) arose out of or is attributable to his war service; or qv) has been contributed to in any material degree, or has been aggravated, by the Conditions of hid war service." The practitioner 1s also required, if he entertains any doubt concerning any of those matters, to state that he entertains that doubt and to indicate, as far as practicable, the nature and extent of that doubt. Dr. Dunn stated that ne had studied the records relatang to the appellant and had examined him in relation to the Claim. Under the heading "Cause*, Ltr. Bunn had written: "(t) The cause is obscure but ais believed ty some authorities to be due to hormonal imbalance, and im some cases to be related to trauma. (e) In this case the cause 15 hormonal imbalance. There 15 no evidence of trauma. There aw some evidence of hormonal imbalance. Veteran developed gynaecomastia, (that as enlargement of the bresst) on the (RK) side. Some degree of gynaecomastia 1s physiologic3l at puberty im all males, ait usually subsides if early adolescence but occasionally persists in one or both sides. In this case it was on only one side, the lump was removed and consisted only of breast tissue. This gymaecomastia had been present for 12 months before surgery on 11.5.70 Ref. EF. Med 14." fir. Dunn said there was mo occurrence that caused the Leratoma testis. In considering wnether the incapacity arose out of or was attributatle to the service he concluded: "No. There was mothing im the service of the member to which 'teratoma testis' may be related. It 15 mot related to any of the illnesses or injuries suffered during service. The episode af 4a 'gynaecomast1i3' whilst being eviderce of a hormonal Imbalance was mot causal in the development of the teratoma and had been manifest for 12 months that 1s since about May 1969 which 1s before the eligibility period. The hormonal ambalance was present before the period." He then proceeded to consider the possitle effect of exposure to chemicals. Under the heading "aggravation" he concluded: 1) "No. Not present prior to 3.12.69. Hormonal imbalance was present but was mot aggravated by service.' At the conclusion of final addresses before the Tribunal, the presiding member expressed his personal opinion that the statement by Dr. Dunn that the hormonal imbalance present during the period of special service, when the treast ecperstion was performed, was mot aggravated by that service was mot supported by any evidence. After a short retirement, the Tribunal announced its decision? "that the decision made ty the Repatriation Commission om 19 March 1982, be set aside and for 1t 15 substituted tie deciztionm that the incapacity of the Applicant from Teratoma of Right Testis 15 accepted as being related to his eligible period of service pursuant to Section 6 of the Repatriation (Special Overseas Service) Act 1962 and the Commonwealth of Australia 16 liable to pay the pensions payable an accordance with that Act. This decision 15 to operate on and from 21 February 1981." In ats written statement of reasons for the decision, said in the appesl papers to have been issued on G6 July 1983, the Tribunal said "The Tribunal has reviewed the evidence before ait, ineluding the letter from Ir Donald Murphy and the Applicamt's own oral evidence, which ancluded his statement that he was not and never had been a smorer and Lo his recollection, had never been wnvolved in oan angjury which caused trauma +o the testis, and finds as masteri3i] guestions of fact that ~ - the Applicant's eligitility to make his Claim was establisned; . the Applicant has incapacity arising from teratoma of right testis; . (per Ur Dunn) the cause of that incapacity is obscurey . symptoms of that incapacity becane manifest in or about 19615 » the Applicant underwent surgery in 1970 im respect of unilateral gynaecomostasis (per form MED14 11.5.70) and vascectumy um 19735 » the Applicant was exposed to some extent to insecticides during his ¢pecial service. The evidence Joes mot lead the Traturnal to the firm conclusion that the Applicant's special service was the or 3s cauoai factor in the onset of tis incapacity fram teratoma of raght tertis, either because of the nature of that service or rts condition, wneluding tne effect of exposure to insecticides. However, tie Applicant's representative (Mr McCallum) Jid mot pursue the suggestion that insecticide exposure could have been involved. On the other rand, Mr McCallum suggested that 1f hormonal imbalance 16 3 causal factor, then that imbalance was present before the commencement of special service. During that special service it became necessary to treat the Applicant for a breast condition and 23 hormonal factor was then involved. The later onset in 1981 does not exclude (see Lenneli> that the condition did not arise from some causal factor ain his special service, or when the cell insult occurred. The evidence clearly 15 that there 15 insufficient known of the condition to form a firm conclusion of what factors are involved certainly the medical evidence on hormonal anvolvement as strong but that 25 only one factor in am obscure cause. The evidence does mot exclude to the degree of proof required under the Repatriation Act, Other factors that as a real possibility, may be anvolved 1m the onset of the condition from which the member suffers. The Tribunal appreciates that the evidence given ainre Lenmell was directed ain the main to other types of cancer but evidence of general application was led im that case which admits to the very uncertain times of onset, times of dormancy and times of Manafestation and is such 3s toa leave 3 douwtt ain the Tribunal's mand, sufficient to convince it that the Applicant's claim should succeed. ° Section 107 VZZH of the Act provides that an applicant in & proceeding before the Tritunal may sppeal to the Federal Court of Australia on a question of law from any decision of the Tribunal im that proceeding. In its statement of the legal test which 1t was obliged to apply an deciding the appellant's claim, the Tribunal made mo error of law which militated against the Commission. The Tribunal said that "the evidence does not exclude to the degree of proof required under tne Repatriation Act other factors thst as areal possibility may be involved ain the onset of the condition from which the member suyffers*. If the reference in this passage to °3 real possibility* be regarded as an error, on the authority of the judgment of a Full Court of this Court ain O'Brien v The Repatriation Commassion (11 April 1984, unreported), which 125 presently under appeal to the High Court, it was not anerror ain favour of the appellant. of the which Counsel for the Commission submitted that the decision Tribunal was was before it. Section In mot properly open to 1t on the material 107V¥h of the Act provides thats "The Tribunal, an conductung a proceeding, or the making review- (a) is hearing of 3 proceediig, or ain a decision ain 3 proceeding, on % not bound by technicalities, legal forms or rules of evidence; ard (b>) shall act secording to substantial Juctice atd the merits and all the eircumstances of the case, and, without Limiting the generality of the foreyoirng, shall take into seccount any difficulties that, for sny resson, lie un tne way of ascertaining the exiretence of any fact, matter, cause or circumstance, rwneludaing any reason atlributable ta- (1) (1a) my opinion, the effects of the passage of time, amcluding the effect of the pass3ge of time on the availability of witnesses; or an absence of, or 3s deficiency im, relevant officral records, wnelwding an absence or deficiency resulting from the fact that an oceurrence that happened during the service of member of the Forces was not reported to the appropriate authorities." the decision of the Tribunal was properly 1s open to it, operating under this charter, on the material which was before it. It had before it the letters of the Operating surgeon, Mr Murphy, of 9 June 1981 and 9 March 1983, and accepted the latter as supporting the appellant's claim for pension, without the letter g1v2ng reasons for doing so. Tt accepted Dr Dunn's opinion that the cause of teratoma of the testis 15 obscure. Tir Durr went on to say that 1t 15 believed by some authorities toa be due to hormonal imbalance and im some cases to be related to traum3. He concluded that "1am this case the esuse 16 hormon3al imbalance. There 15 no evidence of trauma. There 15 some evidence of hormonal imbalance." Tt 18 not for this Court to form any opinion of its our im relation to the facts, but 1t was open to the Tritunal to give whatever weight at chose to these views of I'r Lunn ain deciding whether it was satisfied beyond reasonable doubt whether the cause of his teratoma of the testis was not related to war service. The Tribunal may well have felt that it was mot so satisfied in the light of that portion of Ir Dunn's report in which he said: "The cause 1s obscure but 1t believed by some authorities to be due to hormonal imbalance, and im some cases to be relatel to trauma. In this case the case 15 hormonal ambalance. There 15 mo evidence Lo of trauma. There 16 some evidence of hormonal ambalance." It was open to the Trabunsl to regard this statement a6 based upon the proposition that as there was some evidence of hormonal ambalance and mo evidence of trauma, the conclusion followed that the cause of the appellant's teratoma was hormonal imbalance, not contributed to in amy material degree or aggravated by his period of special service. If one says of a condition that 1ts cause 16 obscure and then cites the belief of some authorities thst at may be due to hormonal ambalance, and in some cases to be related to trauma, 1¢ 18 mot to be necessarily concluded in a particular csse that ain the presence of hormonal ambalance and the absence ot traums, the cause must be hormonal iwmbalance. The existence or presence in such a case of other factors 16 mot necessarily excluded. In my opinion the Tribunal was entitled to conclude that 1t was mot satisfied, beyond reasonable doubt, that there were unsufficient grounds for granting the application. I would allow the appeal, with costs. I certify that this and the sixteen (16) preceding pages are a true copy of the of Keszsons for The Honour atle Sweeney. Dated: 5 Septe ciate As Judgment herein Ml. Justice er, re) . ok art IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 31 of 1984 ) ) GENERAL DIVISION BETWEEN : LAURENCE TREVOR EVANS Appellant AND : REPATRIATION COMMISSION Respondent CORAM : SMITHERS A.C.J., SWEENEY and KEELY JJ. 5 September 1984 REASONS FOR JUDGMENT KEELY J. : I have had the advantage of reading the reasons for judgment of Smithers A.C.J. and Sweeney J. and agree generally with them. The medical history of the appellant, the medical opinions and the statutory provisions relevant to the determination of this appeal set out in those reasons need not be repeated. The appeal is from the judgment of a single Judge of the Court which set aside a decision of the Repatriation Review Tribunal (the Tribunal) and ordered that "the matter be remitted to the Tribunal to be heard and determined according to law after the hearing of any further evidence the Tribunal in its discretion sees fit to receive". The Tribunal had decided :- "that the decision made by the Repatriation Commission on 19 March 1982, be set aside and for it is substituted the decision that the incapacity of the Applicant from Teratoma of Right Testis is accepted as being related to his eligible period of service pursuant to Section 6 of the Repatriation (Special Overseas Service) Act 1962 and the Commonwealth of Australia is liable to pay the pensions payable in accordance with that Act." As the respondent to the appeal placed great reliance upon a report, dated 28 July, 1981, by a Departmental Medical Officer, Dr. D.J. Dunn, which was part of the evidentiary material before the Tribunal, it is necessary to repeat it in some detail. It was typed ona form supplied by the Department of Veterans' Affairs which had printed on it immediately after the heading and the appellant's name, the following :- "Extract from Section 48 - Repatriation Act A Medical Practitioner shall, in reporting on any Claim in relation to a member of the forces, set out in his report his opinion : ° In the case of a claim in respect of the incapacity of the member - as to the nature, cause and extent of the incapacity; and shall also set out whether, in his opinion, the incapacity from which the member is suffering - ° resulted from an occurrence that happened during his war service; ° arose out of or is attributable to his war service, or ° has been contributed to in any material degree, or has been aggravated, by the conditions of his war service. Where a Medical Practitioner entertains any doubt concerning any of the matters which by the last preceding sub-section he is required to report upon, he shall state in his report that he entertains such a doubt and shali indicate, as far as practicable, the nature and extent of his doubt." Page 2 of the form had printed on it the following :- "Cause (a) Define the disability in simple language (b) Discuss the generally known causes of the disability (c) State the cause of the disability in this case" Immediately beneath those printed paragraphs Dr. Dunn's report contained the following statements :- "(a) Ref. Text Book of Pathology - Dobbino P 108a, Teratoma of the Testis is a malignant tumour that arises inthe germ cells of the testis. They consist of a variety of tissue types and organ - like structures. In this case embryonal elements were present. (b) The cause is obscure but is believed by some authorities to be due to hormonal imbalance, and in some cases to be related to trauma. (c) In this case the cause is hormonal imbalance. There is no evidence of trauma. There is some evidence of hormonal imbalance. Veteran developed gynaecomastia, (that is enlargement of the breast) on the (R) side. Some degree of gynaecomastia is physiological at puberty in all males, it usually subsides in early adolescence but occasionally persists in one or both sides. In this case it was on only one side, the lump was removed and consisted only of breast tissue. This gynaecomastia had been present for 12 months before surgery on 11.5.70 Ref. F. Med 14." aot Pages 3, 4 and 5 of the departmental form were headed "Occurrence", "Attributability" and "Aggravation" respectively. On those pages Dr. Dunn stated his opinions that "there was no occurrence that caused (the) teratoma testis", "there was nothing in the service of the (appellant) to which teratoma testis may be related" and that' the condition was "not present prior to 3.12.69. (i.e. the commencement of the eligibility period) Hormonal imbalance was present but was not aggravated by service". It will be noted that Dr. Dunn's report, in dealing with "the generally known causes" of teratoma of the testis, included a statement that "the cause is obscure but is believed by some authorities to be due to hormonal imbalance, and in some cases to be related to trauma". In my opinion, when appropriate emphasis is given to the words underlined by me in that statement, it is not possible to conclude that, on the material before it, the Tribunal was required, as a matter of law, to accept Dr. Dunn's opinion that in "this case the cause is hormonal imbalance" or to be satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the clain. The Tribunal made it clear that it had not reached a "firm conclusion that the applicant's special service was the or a causal factor in the onset of his incapacity" and expressed its conclusion in the following terms :- "The evidence clearly is that there is insufficient known of the condition to form a firm conclusion of what factors are involved. Certainly the medical evidence on hormonal involvement is strong but that is only one factor in an obscure cause. The evidence does not exclude to the degree of proof required under the Repatriation Act, other factors that as a_ real possibility, may be involved in the onset of the condition from which the member suffers." In my opinion the Tribunal was entitled, on the material before it, to reach that conclusion. I agree with Smithers A.C.J. that the Tribunal did not misinterpret the evidence of Dr. Dunn and that the passage in the Tribunal's reasons, which was cited by the learned judge, was referring to an earlier decision of a Repatriation Board that "it is considered that hormonal imbalance is a factor". Lastly, in my opinion the provisions in the Act do not support the submissions advanced on behalf of the respondent that the Tribunal, if dissatisfied with the material before it, ought to have investigated the matter and, more specifically, if not satisfied with Dr. Dunn's evidence as to the cause of the teratoma of the testis, should have called upon Dr. Dunn to provide a better explanation. It has not been shown that the Tribunal made any error of law in favour of the appellant or misdirected itself in any way. The appeal should be allowed and the respondent ordered to pay the appellant's taxed costs of and incidental to the appeal. Five