JUDSMENT ito. 9S (OD, sitet IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ) No. G442 of 1987 ) ) GENERAL DIVISION ON APPEAL from the Veterans' Appeals Tribunal BETWEEN: ALLEN WILLIAM BUSHELL Appellant AND: REPATRIATION COMMISSION Respondent CORAM: Davies, Gummow and Foster JJ. DATE: 8 February 1988 PLACE: Sydney REASONS FOR JUDGMENT EX TEMPORE The issue before the Administrative Appeals Tribunal was whether an anxiety state, which was attributable to war service, had contributed to a state of hypertension which the applicant, Mr Allen William Bushell, suffered. The factual issue was analogous to that considered in Repatriation Commission v. O'Brien (1984) 155 C.L.R. 422 and in Sprod v. Repatriation Commission 9 A.L.N. N16. Indeed, the medical evidence given in the present matter was similar to that given in the Sprod case. Division of the Administrative Appeals Toy ins 2. The legislation has altered, however, from that considered in those two decisions. The legislation, which applied to the matter before the Administrative Appeals Tribunal was that appearing in s.120, sub-sections (1) and (3) of the Veterans' Entitlement Act 1986 which read:- "120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. (3) In applying sub-section (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining - (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-—caused disease; or {c) that the death was war-caused or defence~caused, as the case may be, 1f the Commission, after consideration of the whole of the material before it, is of the opinion that the material before 1t does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person." The Administrative Appeals Tribunal rejected the applicant's claim on the basis that:- "... on the evidence there is no reasonable hypothesis as to a connection between the applicant's disability and war service." et or eter ee po fey Te r en yore ne eos a _—on ' - —-- ~ ee ee 3. Mr Robertson, counsel for the respondent, conceded that, in the course of 1ts reasoning, the Tribunal made an error of law which was material to its decision. The error conceded by Mr Robertson appears on page 11 of the Reasons for Decision of the Tribunal in which the Tribunal stated:- "... we are not satisfied beyond reasonable doubt that the hypothesis relied upon by the applicant is reasonable." The Tribunal was not required to be satisfied as to a reasonable hypothesis beyond reasonable doubt. It was merely required to be of the opinion or not of the opinion, as the case may be, that a reasonable hypothesis existed. It appears to the Court that a further error in the reasoning may also be identified. The Tribunal said:- "The question which remains is whether the anxiety state has led to the diagnosed condition of essential hypertension, which is thus war-caused." And, ",.. it appears to us that the applicant's essential hypertension did not flow from stress produced by war service but from hereditary factors, together with post-service, possibly health~damaging habits and from increasing age." It appears from those passages that the Tribunal came to a view for itself as to the connection between the hypertension and war service rather than looking at the questions posed in the manner required by sub-sections (1) and (3) of s.120, namely, as to whether there was a reasonable hypothesis and as ar a me tee ye toe ? pe * we rag ye yore neramescsy ' y cm Tv Ye oan 4. to whether 1t was satisfied beyond reasonable doubt there was no sufficient ground for making a finding in favour of the applicant. Mr James, QC, senior counsel for the applicant, contended that the Court should make an order that the applicant's claim for a pension be granted. Mr James submitted that, although the contrary was stated, 1t was nevertheless implicit in the Tribunal's reasons for decision that the Tribunal was satisfied that the hypothesis that had been put forward in the applicant's favour by Dr Eric Schiller was, on the facts of the case, a reasonable one. In the view of the Court, that inference cannot be drawn from the Tribunal's reasons for decision. In the absence of a finding of fact that there was a reasonable hypothesis in favour of the applicant's claim, an order ought not to be made that the applicant's claim be granted. The making of such a finding of fact 1s a matter, in the farst instance, for the Repatriation Commission and, on review, for the Administrative Appeals Tribunal. It is not the function of this Court on appeal to make a finding of fact of that nature. In the absence of that finding of fact, the matter must be remitted to the tribunal for rehearing. The decision of the Court, therefore, 1s that the matter is remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence. wg te ee en ee T FR re ene + As to costs, although the applicant has succeeded in the appeal itself, nevertheless, the applicant has failed on the major issue which was discussed before the Court this day, namely, as to the form of the order that the Court should make. In these circumstances, the Court is of the view that each party should pay his or its own costs. I certify that this and the 4 preceding pages are a true copy of the Reasons for Judgment herein of the Court. : a Associate: D . Date: (s\rebrvary 1988 Counsel for the appellant: Mr G.R. James Q.C. with Mr P. Dwyer Solicitor for the appellant: Legal Aid Commission of NSW Counsel for the respondent: Mr A. Robertson Solicitor for the respondent: Australian Government Solicitor Date of hearing: 8 February 1988 epee cree 4 at eee nny we ww soretn TER ee o > ' eerie oe y