IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 86 of 1982 GENERAL DIVISION ) IN THE MATTER OF the Repatriation Act 1920 BETWEEN: THE REPATRIATION COMMISSION Appellant AND LILI TAN BROOKE Respondent ORDER JUDGE MAKING ORDER: Evatt J DATE OF ORDER: 22 November, 1984 WHERE MADE: Sydney THE COURT _ORDERS THAT. 1. The appeal herein be dismissed [> . , Neview The decision of the Repatriation Gemmrsster- Tribunal made 29 March 1982 be confirmed. The Appellant Commission to pay the Respondent's costs in accordance with slO7VZZ2K of the Repatriation Act 1920. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 86 of 1982 GENERAL DIVISION ) IN _THE MATTER OF the Repatriation Act 1920 ' E TWEEN: THE REPATRIATION COMMISSION Appellant AND: LILLIAN BROOKE Respondent CORAM Evatt J. 22 November 1984 REASONS FOR JUDGMENT This is an appeal brought by the Repatriation Commission pursuant to sl07VZ2ZH of the Repatriation Act 1920, (hereinafter called the "Act"), from the decision of the Repatriation Review Tribunal, (hereinafter called the "Tribunal"), made 29 March 1982 which decision set aside the Repatriation Commission's decision dated 4 September 1979 and substituted therefor a determination that the death of Robert Talbot Brooke be accepted under s24 of the Act as being "related to war service" effective on and from 9 March 1978. The Respondent to the Appeal is Lillian Brooke, the widow of Robert Talbot Brooke (hereinafter calied the. deceased). For convenience, the decision of the Tribunal is set out in full:- "Mr Brooke died on 30 January 1978 and on 9 June 1978 the Repatriation Commission received a letter from the Applicant, (the Respondent to this Appeal), claiming that her husband's death was due to his war service. A formal claim was subsequently lodged on 27 July 1978. The Applicant's claim was rejected by a Repatriation Board on 20 November 1978 and an appeal to the Repatriation Commission was disallowed on 4 September 1979. The late member was born on 11 August 1899. He served in the Australian Army on full-time duty from 27 July 1917 to 13 September 1919 and by reason of this service is eligible for consideration for the purposes of Repatriation legislation under the provisions of Section 24 of the Repatriation Act 1920. The death certificate in respect of the late member recorded the cause of death as: "heart failure due to congestive cardiac failure; also, carcinoma of bladder and prostate." On 26 October 1978 Dr Locke, a departmental medical officer, provided a report in respect of the late member's death. Dr Locke's report included the following statement: "He had chronic bronchitis (C.0.A.D.) due to his smoking habit. He had evidence of generalised arteriosclerosis - he had ischaemic limb disease requiring amputation for gangrene. He had angina (ischaemic heart disease). His cancer of prostate and bladder caused haematuria - causing anaemia. It was during transfusion that he developed pulmonary oedama - due to failure of the heart to cope with the extra blood volume. This settled but he remained in cardiac failure until he died. His death was a combination of factors - weak heart due to ischaemia and made worse by anaemia resulting in heart failure - the same as congestive cardiac failure in this instance with the symptoms of pulmonary oedema. His chronic bronchitis was a cause also of his congestive cardiac failure." In answer to the question: "If the cause of death includes more than one disability, state relat whether there is any causal ionship between them?", Dr Locke wrote: "Yes. The congestive cardiac failure is part and parcel of heart failure. Treatment of anaemia from carcinoma of bladder was a cause of the ex-member's congestive cardiac failure." In its published reasons for disallowing the Applicant's appeal and refusing the claim, the Commission said that the medical officer had expressed the opinion that the incapacities that resulted in death were completely unrelated to service. The Commission went on to. state that it accepted the opinion expressed by the medical officer as a reasonable explanation as to the causes of the incapacities that led to death and the relationship of those incapacities to service. On 15 October 1979 the Applicant lodged an application for review by this Tribunal of the Commission's decision of 4 September 1979. The application came on for hearing by the Tribunal on 27 May 1980. This hearing was adjourned pursuant to slO7VY(1)(b) of the Repatriation Act pending the outcome of Court cases in respect of the Repatriation Commission v Nancy Law. The application for review came again before the Tribunal on 29 March 1982. The Applicant did not attend but was represented by Mr F. Hibbett of Sydney Legacy. Mc Hibbett did not tender any medical evidence on behalf of the Applicant but submitted that the late member died when his heart failed following a _ blood transfusion. administered to correct anaemia caused by his cancer. The heart had been weakened by ischaemia. Mr Hibbett submitted that the claim should have been accepted because the cause of the cancer and the ischaemia were unknown in this case. It is now the duty of the Tribunal, in accordance with the provisions of s107VH of the Repatriation Act, to set aside the Commission's decision of 4 September 1979, unless the Tribunal is satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The test to be applied by the Tribunal is satisfaction beyond reasonable doubt that the cause of the late member's death is not related (in the ways specified in 624 of the Act) to his war service. This test was considered by the High Court of Australia in The Repatriation Commission v_ Nancy Law (1980-1981) 147 CLR 635, 36 ALR 411. It means: 1. In relation to any fact necessary to establish the relationship, there is an onus of proof on the Commission to gatisfy the Tribunal beyond reasonable doubt that the fact does or does not exist. 2. Where the Commission fails to satisfy this onus, the Tribunal must set aside the Commission's decision and allow the claim. The Commission's case against the claim by this Applicant appears to be founded on the opinion of Dr Locke, an opinion which the Commission found to be a reasonable explanation of the causes of the incapacities that led to death and the relationship of those incapacities to service. In fact, Dr Locke did not give an explanation of the causes of the incapacities that led to death. He stated that in his opinion these incapacities were not due to war service but he gave no opinion as to the cause of the late member's ischaemia, carcinoma of prostate Or carcinoma of bladder. The reasons given by the Commission for disallowing the claim do not, in the Tribunal's view, discharge the onus placed on the Commission. The Commission stated that it could find no basis for accepting that the ex-member's service was in any way responsible for his death. But the Act does not require that a link between death and service can be shown. As has been said, s81l07VH requires the Commission to Satisfy the Tribunal beyond reasonable doubt that there is no such link. When it made its decision, the Commission did not have before it any medical evidence as to the origin or cause of the late member's cancer, treatment for which was a cause of his death. There are probably causal factors here which have yet to be detecmined and which could be related to war service. In these circcumstances, the Tribunal cannot be satisfied beyond reasonable doubt that the late member's death did not arise out of his war service. Accordingly. the Tribunal sets aside the Commission's decision of 4 September 1979 and substitutes for that decision that the death of Robert Talbot Brooke is accepted under 824 of the Repatriation Act as being related to war service. This decision will have effect on and from 9 March 1978, being a date fixed in accordance with 8107V2ZG(1)(d) of the Act, that is to say, a date three months before the day on which the claim for pension was lodged." On the appeal before this Court coming on for hearing, the Appellant filed in Court, without objection, an amended Notice of Appeal. The grounds thereof are set out in full: "B.Grounds of Appeal 1. That the Repatriation Review Tribunal erred in taking the view that because the aetiology of the disease (the treatment of which caused death) was unknown it could not be satisfied to the required standard of proof that' the death @id not result from any occurrence that happened during War Service. That the Repatriation Review Tribunal erred in law in failing to accept the only uncontradicted medical evidence before it that "the incapacities that resulted in death were completely unrelated to service" and thus to be satisfied to the required standard that death did not result from any occurrence that happened during war service. That the Presiding Member of the Repatriation Review Tribunal erred in failing to exercise its powers under s107VZ(1) of the Repatriation Act 1920 to make investigations into the cause of the late member's ischaemia, carcinoma of prostate or carcinoma of bladder in circumstances where it regarded those matters as important to the making of a decision. That the Repatriation Review Tribunal erred in failing to take into account the fact that to conclude that a member's death is service related within the terms of s24 of the Repatriation Act requires a more immediate or proximate connection with war service than is required to fit within the terms of s101 of the said Act and that the standard of proof required is thereby affected. 5. That the Repatriation Review Tribunal erred in law in finding that "There are probably causal factors here which have yet to be determined and which could be related to War Service" when there was no evidence to support that finding." -The orders sought by the Appellant Commission were: "1. That the decision of the Repatriation Review Tribunal be set aside. 2. That the case be remitted to the Repatriation Review 'Tribunal to be heard and decided again. 3. Such further or other Order as_ the Court deems fit." The deceased's files concerning his war service and treatment received through the Repatriation Department were before the Board, the Repatriation Commission and the Tribunal. Such files were also forwarded to this Court (see s107V2ZJ of the Act and 0.59 £.1 and O.53 r£.10 of the Federal Court Rules). The parties had access to the files in order to more readily rcead the photocopied pages of the Appeal Book herein. It is clear from the files that the deceased had, for more than ten years prior to his death, been regularly attending at the Repatriation Hospital Concord for treatment of, inter alia, carcinoma of bladder and carcinoma of prostate. In addition, the deceased had had his right leg amputated in March 1973 because of peripheral gangrene following vascular breakdown in that leg. The Court did not and indeed cou ld not endeavour to ascertain what other relevant additional facts may have been within the deceased's files, but it is clear that the documents forming the so called factual matters set out in the Appeal Book herein are pages from within those files. Further, it is clear that certain documents within the -files are not original but are copies of Army records. There was no evidence to indicate whether such copies were accurate copies of such original documents or that the said files contained all relevant particulars or documents Departments or medical As Serviceman, relevant. 1982 read: (a Ci (b held by the Army or other Commonwealth in respect of the deceased's Army service treatment thereafter. this matter concerned a First World War ss24, 47 and 107VH of the Act are Relevant parts of these sections as at March -24.(1) Upon the death or incapacity- )} of any person, to whom paragraph (a) or (b) of the definition of "Member of the Forces" applies, whose death or incapacity- ) results Or has resulted from any occurrence that happened during his war service; ii) .... } weer. 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 this Division. es 8.47.(2) (2) (a) (b) (3) (4) ll The Commission or a Board shall grant a claim or application, and the Commission shall allow an appeal, unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal, as the case may be. In a proceeding on a review, the Tribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before 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. On the completion of its consideration in a proceeding on a review- 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 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. Where the Tribunal sets aside a decision the subject of a review, it shall substitute for that decision such decision as the Tribunal considers to be in accordance with this Act. " It was not in dispute that the deceased had served overseas within the meaning of the Act and that the above sections were the sections applicable to the case before the Tribunal. It was confirmed by Counsel representing the Appellant Commission that the orders of the Court sought on the appeal were those in the Notice of Appeal set out -earlier herein and that the Commission did not seek to have an order of the Court setting aside the decision of the Tribunal (see s107VZZH(5) of the Act). Since this case was argued before the Court, a full court of this Court in the matter of O'Brien v. The Repatriation Commission (1984) 53 ALR 477 has considered relevant sections of the Act and prior decisions of this Court and the High Court. The High Court has granted to the Repatriation Commission leave to appeal against that Federal Court's decision, which appeal is still pending. The Court as presently constituted has considered the detailed analysis by the members of the Court in O'Brien's Case (particularly Keely and Fitzgerald JJ) of the reasons for judgment in various Federal Court judgments and of the High Court in earlier cases concerning appeals under the Repatriation Act. After lengthy deliberation the Court is of the view that the proper course in the present matter is that the decision of the Tribunal should be affirmed. I am satisfied that on a proper analysis of the Tribunal's determination herein it was open to the Tribunal to reach the conclusion that the Repatriation Commission had not discharged the onus upon it as provided by slO7VH of the Act as construed by the High Court in Law's Case and the earlier Federal Court cases set out in detail in O'Brien's Case. It is not to the point that the Court as presently constituted may as a result of hearing medical opinions expressed in other cases or indeed of its own -knowledge be aware of views relative to the aetiology of carcinomas of certain organs of the human body but in my view it is notorious, especially in the field of repatriation pensions and workers' compensation, that medical science was in March 1982 such that evidence might have been expected to have been led by the Commission before the Tribunal indicating the range of latency periods required before the particular types of carcinomas suffered by the deceased might have manifested themselves. There was no evidence that the particular carcinomas suffered by the deceased must have been "initiated" no earlier than XK years and no later than Y years before such manifestations so as to prove beyond reasonable doubt to the Tribunal that such "initiator" of the carcinomas must have been subsequent to the deceased's war service. Again, there was no evidence to suggest that, in accordance with some medical science, there was no "occurrence" during the deceased's war service which, in effect, could have been a "promoter" of the particular carcinomas or that such "occurrence" must have happened during a time period outside his war service. In Lennell v. The Repatriation Commission, Full Court of the Federal Court 3/2/1982, (unreported other than 4 ALN No. 29),aill three members of the Court, (Northrop, Toohey, Sheppard JJ) rejected a 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 it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. This 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. But here, there was nothing before' the Tribunal, and no attempt was made by the Commission to place such material before the Tribunal to show that the cause of the disease was not or could not have been connected with the deceased's war service to a degree that the Tribunal could have been satisfied beyond reasonable doubt that such cause was not or could not have been connected with war. service. Dr Locke's certificate indicated what caused the deceased to die but did not give a reason for the cause of the disease other than to say that in his opinion it was not connected with war service. It is noted that Dr Locke does not express any reasons for this proposition. A proper analysis of the reasons of the Tribunal do not in my view support the Appellant's claimed expression in its first ground of appeal of the Tribunal's alleged view regarding the aetiology of the disease and consequently that ground is rejected. The second ground of appeal is also rejected. In support of this ground the Appellant Commission relied upon the decision of the Court in Read v. Nerey Nominees Pty. Ltd. 1979 VR 47. In my view it cannot be said that a tribunal of fact must accept any evidence, be it medical or lay which is uncontradicted especially if the tribunal considers that such evidence does not deal with all necessary aspects of the issues before it. The Act, of course. (see 5107VK), provides that the Tribunal shall cause to be prepared a written record of the decision containing a statement of the reasons for the decision including any findings of fact in relation to the matter but in my view a fair reading of the Tribunal's reasons show that the Tribunal has given -sufficient reasons in respect of the matter complained of by the Appellant in this ground of appeal . It has accepted Dr Locke's opinion as to cause of death but has indicated that that opinion was not sufficient to discharge the onus upon the Commission as to the cause of the disease which led up to his death. The third ground of appeal concerns the failure of the Tribunal to exercise its powers under s107VZ(1). That section reads:- "107VZ2(1) The presiding member in relation to a proceeding before the Tribunal may, at any time, request the Secretary- (a) to forward to the Tribunal further documents in his custody relating to the proceeding: (b) to obtain, and forward to the Tribunal, furcthec documents relating to the proceeding; or (c) to arrange for the making of any investigation, or any medical examination, that the presiding member thinks necessary with respect to the proceeding, and to forward to the Tribunal a report of that investigation or examination." The Appellant Commission submitted that in the subsection circumstances of this case. should be read as "must" in reading of the reasons of the Tribunal showed that gravamen of the whole moving force behind Tribunal's acceptance of the claim was that there an unexplained factor. namely, the cause of deceased's ischaemia, carcinoma of the prostate -carcinoma of the bladder. It was further submitted that s8s107VZ(1) has to be read in the light of 8107VG which reads:- LO7VG (a) (b) The Tribunal, in conducting a proceeding, or the hearing of a proceeding, OL in making a decision in a proceeding. on a review: - is not bound by technicalities, legal forms Or rules of evidence; and shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause ofr circumstance, including any reason attributable to:- (i) 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." " may tt the It was submitted that a the the was the and As I understand the Appellant's submission in this regard it says that it was incumbent upon the Tribunal and in particular its presiding member in a case such as this where there is an apparent gap in the evidence for the Tribunal to request the Secretary to obtain further evidence to fill that gap. That is to say that the Court in those circumstances must construe the word "may" as meaning "must". The Court was 'directed to Finance Facilities v. Commissioner of Taxdtion 127 CLR 106, particularly at 124, see also Ex parte McGaven Re Birne 46 SR (NSW) 58. The Federal Court has indicated that the scheme of the Act is not to establish an adversary method of determining claims and applications. Be this as it may. But I can see nothing in s107VZ read with or without the provisions of slO7VG whereby a position could be reached where the presiding member of the Tribunal was obliged to seek further evidence to fill some apparent gap and that his failure to do so must amount to an error of law. In the circumstances of this case I am satisfied that such a position was certainly not reached and this ground of appeal is rejected. Turning then to the fourth ground of appeal. It will be recalled that the Appellant Commission did not seek an order substituting a decision in its favour but asked that the matter be referred back to the Tribunal for further evidence and consideration. In this regard it is pointed out that on 28 October 1982 (i.e. some little time after the determination of the Tribunal in the subject matter) s24 of the Act was amended by 610 of Act No. 100 of 1982. Relevant amendments in effect made the relevant terms of s24 the game as 6101 of the Act. Consequently. if the matter had been remitted back to the Tribunal for reconsideration, the Tribunal would then have reconsidered it in accordance with s24 as so amended. Accordingly, this ground of appeal was not pressed. This then leaves the fifth ground of appeal. The complaint here is the sentence at the end of the third last paragraph of the reasons of the Tribunal -which reads:- "There are probably causal factors here which have yet to be determined and which could be related to war service." In my view this sentence was not a finding of fact by the Tribunal. In effect it was a "throw-away" line not referring to factors to be found within the files of the deceased but a reference to medical science generally in respect of cancer or carcinogens. The sentence certainly did not form a basis for any of the Tribunal's determination. Accordingly. the appeal herein is dismissed and the decision of the Tribunal is affirmed. Pursuant to s107VZZK of the Act the Appellant Commission is to pay the Respondent's costs in accordance with that section. I certify that this and the Severpeer preceding Pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Evatt. ' War ssociate Dated 22 November 1984