JUDGMENT NO. sou 2 Lalenal ews? Lin CATCHWORDS VETERANS' AFFAIRS - appeal from Administrative Appeals Tribunal - application for pension upon death of veteran - accepted that veteran had relevant operational service - whether death resulting from alcoholism was war-caused - whether Tribunal gave regard to the whole of the material before it - whether whole of the material raised some facts which gave rise to the hypothesis suggested - possible contradiction in documentary evidence leading to the conclusion_that there ~is. "no -evidence" on tthe topic - whether failure by Tribunal to address correct legal question Veterans' Entitlements Act 1986 (Cth), s8, 8120(1), s120(3) Administrative Appeals Tribunal Act 1975 (Cth), 544 Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-70 Bushell v Repatriation Commission (1992) 175 CLR 408 at 416, ELIZABETH ANNE GLEESON v THE REPATRIATION COMMISSION No. NG 255 of 1994 Beaumont, Einfeld and Hill JJ. Sydney 28 September 1994 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION CORAM: ~~ eee TR RY No. NG 255 of 1994 IN APPEAL FROM A DGE OF THE FEDERAL Tr OF AUSTRALIA BETWEEN: ELIZABETH ANNE GLEESON Appellant AND: THE REPATRIATION MMISSION Respondent BEAUMONT, EINFELD AND HILL JJ. WHERE MADE: SYDNEY DATE: 28 SEPTEMBER 1994 MINUTE: RDER RT_ ORDERS: 1. 2. Appeal be allowed, with costs. Set aside the orders made at first instance; in lieu thereof, order that the appeal from the decision of the Administrative Appeals Tribunal be allowed, with costs, and that the decision of the Administrative Appeals Tribunal be set aside and that the matter be remitted to a Tribunal differently constituted to be reheard in accordance with law. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) H DISTRICT REGISTRY ) No. NG 255 of 1994 ) ) IVISION APP. FR DGE OF THE FEDE R' F_ AUSTRALIA + +e .. BETWEEN. ELIZABETH ANNE GLEESON Appellant AND: HE REPATRIATION COMMISSION Respondent CORAM: BEAUMONT, EINFELD AND HILL JJ. DATE: 28 SEPTEMBER 1994 REASONS FOR DGMENT THE COURT: INTRODUCTION The following is the background to this appeal from an order made by a Judge of the Court dismissing an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"). The appellant claimed a pension under' the Veterans' Entitlements Act 1986 ("the Act") as the dependant of her husband, a deceased veteran ("the deceased"). The appellant claimed that the death was "war-caused" within the meaning of s.8 of the Act. The Repatriation Commission refused the claim. The Veterans' Review Board affirmed that decision. The Tribunal having affirmed the Board's decision, the appellant then appealed to this Court under s.44 of the Administrative Appeals Tribunal Act 1975. As has been noted, the primary Judge dismissed that application. IN F_ THE TRIBUN. In order to understand the issues that arise on the appeal, reference should be made to the statement of reasons ~ -of—the -Tribunal-—which,-—in-essence, -were as follows: (1) The deceased, who had rendered eligible and operational service in the Australian Army in the Second World War, died in 1989 from, inter alia, carcinoma of the large bowel (para.2). Pursuant to s8.120(1) and (3) of the Act, the Tribunal shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal shall, however, be deemed to be satisfied beyond reasonable doubt if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that this material does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered (para.6). (2) Since the Commission conceded that there was a link between the carcinoma and alcohol, the question was "whether there existed any evidence to support the hypothesis that the Deceased's partaking of alcohol was attributable to his war service" (para.7). (3) After referring to the evidence of the appellant (who did not know the deceased before his enlistment in August 1940), the Tribunal cited the following statements in a letter from Allan Jones McIntosh: "Over a period of some 12 months in 1941/1942 we —_ —were privates.__;later.NCOs) .in.2.Div HQ, then located at ..., Parramatta. It was every night and weekend dJeave most of the time and this we spent together around the hotels and welfare centres of Parramatta and adjoining areas. It was 6 O'clock closing but some hotels served soldiers till 10 or 11 O'clock. Other times it was bottles of spirits taken to adjoining parklands, and a drunken stagger back to camp around midnight. As well, associations developed with local residents and there were merry house parties regularly. This was the general scene and common to most Army towns at the time. During all of this I clearly recall that Bede Gleeson was in the thick of it. He seemed to have quite a capacity for beer, and I recall that he could cheerfully back up next morning to 'bat on', while I could not look at the stuff. Sometimes he helped me up Church St and Pennant Hills Rd back to Camp, sometimes I helped him. At the time it was just of way of life for so many in the Army, and no one thought much of it. Because we were so closely associated at that time, I can sum up honestly by declaring that along with myself and so many others, Bede Gleeson could be described as a very heavy drinker, even if a product of his time and environment." (4) The Tribunal went on to say this: "12, This account of the Deceased's drinking habits is in contrast to a Statutory Declaration by a brother of the Deceased, a Mr Kevin Gleeson, made 25 July 1992. In that Statutory Declaration he says: 'I can say that between 1937 and 1941 I saw my later brother Bede because for part of that period we were both living at home. I cannot recall seeing him drinking at any time during that period.' 13. The contents of the above document are at variance with a previous Statutory Declaration made by Mr Kevin Gleeson dated 17 April 1991 and which is at page 53 of Exhibit A. In that document Kevin Gleeson stated inter alia: 'I was transferred to the country in 1937 and joined the A.I.F. in 1940. Thereafter I did not see much of my family ---=— m= until..after.the-war -..." 14. The net result is that it is not possible to put any weight upon the evidence of Mr Kevin Gleeson as to his brother's drinking habits." (5) With reference to the report of Dr. Nasser, the Tribunal said: "18. In his report (Exhibit B) Dr Nasser stated that the information he had was that the Deceased did not drink prior to Army service. The fribunal, however, finds that there is no direct evidence as to whether the Deceased did or did not drink alcohol prior to his Army service. Consequently, ODr Nasser's conclusion that the Deceased's post war drinking was connected with a habit developed on service must be rejected." (6) The Tribunal then mentioned (para.19) that in Dr. Nasser's report, he had, inter alia, referred to a statement made to him by the appellant that - "She believed that he began drinking after joining the Army and understood that his brother had signed a Stat. Dec. to this effect." The Tribunal said: "20. This material [which included references to the deceased as a heavy drinker after his enlistment] clearly discloses that the Deceased was drinking heavily when alcohol was available prior to any active service. Further, having regard to this material and the letter from Mr McIntosh, referred to above, it is difficult to escape the conclusion deduced by Dr Mattick, namely, that if the Deceased was naive to alcohol prior to service, his consumption would have been more moderate in the 1941/42 period, ie prior to active service. 21. Dr Nasser also conceded in cross-examination that a physical tolerance to alcohol takes a time to develop. The inference can therefore be drawn that the Deceased's tolerance referred to by Mr McIntosh ..— was..lLnduced.bywalcohol_consumption.prior to service. 22. Given all material before it, the fTfribunal finds that there igs simply no evidence to support an hypothesis that the Deceased did not drink alcohol prior to service and commenced to drink alcohol as a result of the exigencies of his service." (7) The Tribunal went on to say: "23. The matter does not, however, end there. Even if the Deceased drank alcohol prior to service if, as a result of his service, his consumption increased to a level where it could be described as hazardous, or to a level where habituation resulted, then any alcohol related disease can be regarded as attributable to that service - cf McGlynn v Repatriation Commission 1 RPD 210. 24. There is no evidence as to what the Deceased's habits with regard to alcohol were prior to enlistment. During his war service he did drink heavily on occasions but there is no evidence that this was because of his war service as opposed to a mere temporal connection in that he was in a position where alcohol was freely available and he had few responsibilities. 25. After service, there is no evidence that his alcohol consumption was caused by any war related condition, for example - a post traumatic stress disorder, or as a palliative to pain. There is, however, evidence that he worked in the alcohol industry and alcohol was readily available." (8) The Tribunal then cited the following passage from the judgment of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 416: "soe if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for -- ~making-the~determination." Reference was also made to a similar passage in the reasons of Brennan J. in Bushell at 426. (9) The Tribunal stated its conclusion as follows: "27. In this matter the Tribunal is satisfied that there is no evidence to support an hypothesis that the Deceased's ingestion of alcohol was attributable to his war service. As the substratum of fact necessary to found an hypothesis of entitlement does not exist, the Tribunal affirms the decision under review." IN T_ FIR IN; E The primary Judge said that on the "appeal" to the Federal Court the appellant had limited her grounds of appeal to the manner in which the Tribunal dealt with the evidence of Mr. Kevin Gleeson in the form of the two statutory declarations. His Honour said that the Tribunal's conclusion that Mr. Kevin Gleeson's statements should be given no weight "was reached, in part, as part of the Tribunal's consideration of whether there were facts that supported a reasonable hypothesis of the type referred to in s8.120(3)." His Honour then cited the following passage from the judgment of Mason CJ., Gaudron and McHugh JJ. in Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 569-70): "The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is . --reasonable.". . . . The primary Judge said: "Having regard to the contents of the statutory declarations of Mr Kevin Gleeson and the contrast between them and the evidence of Mr McIntosh, the Tribunal decided to accord them no weight. The Tribunal could have, and probably should have, explained more fully why it adopted this course and the consequences of it doing so. I should add that I have found the reasons for decision of the Tribunal difficult to follow in a number of respects but the fact that they might be difficult to follow and might not generally be adequate reasons is not a separate ground relied on by the applicant. However the Tribunal does provide, in a summary way, an explanation of why it accorded the evidence of Mr Kevin Gleeson no weight which, having regard to the contents of the statements themselves, provides a Plausible reason for doing so given the use the applicant sought to make of them." After analysing the contents of the two statutory declarations, his Honour went on to say: "The Tribunal was, in substance, refusing to accept the statements of Mr Kevin Gleeson as constituting sufficiently reliable material from which it might be inferred that, as a matter of fact but sufficient only to constitute a raised fact, the deceased did not drink alcohol prior to his war service. It was open to the Tribunal to reach the conclusion it did about the evidence of Mr Kevin Gleeson and the manner in which it dealt with that evidence does not disclose, in my view, an error of law. It is not for this Court, in an appeal under s.44, to form its own view as to what facts might have been identified as raised facts from the material when the way in which the Tribunal dealt with the material discloses no error of law." For essentially these reasons, the Primary Judge rejected both complaints made on behalf of the appellant, that is (1) that the Tribunal wrongly rejected evidence (i.e. that - Of- Mr. Kevin-.Gleeson) ~that.was_not challenged or contradicted; and (2) failed to consider the whole of the material before it, as directed by s.120(3). CONCLUSIONS ON THE APPEAL In our opinion, the Tribunal failed to address correctly the questions posed to it by s.120, that is to say (a) did the whole of the material before it raise some facts which give rise to the hypothesis suggested; and (b) if so, is the hypothesis reasonable? As Einfeld J. pointed out in argument, where, as here, part of the material before the Tribunal consisted of two pieces of documentary material from a single source, and the maker of the statements in that material is not given an opportunity to explain a possible discrepancy, it is not appropriate for the Tribunal, in effect, to speculate about possible contradictions in those documents and then to conclude (as the Tribunal did in para.22 of its reasons) that, in this respect, there is simply "no evidence" on the topic the subject of the documentary material. On the contrary, some of that material, even if it be assumed to be difficult to reconcile with other material (a questionable assumption here) did, in our opinion, constitute part of the material before the Tribunal which, when taken as a whole, could be said (in the sense of being capable of doing so) to "raise facts" which "give rise to the hypothesis suggested" in the . -sense provided— in—s.120(3).--That.is the first of the two stages of the inquiry directed by s.120 to be undertaken. In the present case, in our view, the Tribunal did not, in embarking upon this first stage of its statutory inquiry, have regard, as s.120(3) required, to a consideration of the whole of the material before it in determining whether that material did or did not raise the hypothesis suggested. On the contrary, in substance, and in form, the Tribunal, for this purpose, entirely eliminated from its consideration a part of that material in the form of the information contained in the two statutory declarations. The Tribunal purported to do this on the footing that it was difficult to reconcile certain of the statements in the declaration. Whilst this may be a basis for evaluating the credibility of the information in the declarations, it could not provide a foundation for a conclusion that there was "no evidence" on the topic for the purpose of determining whether the whole of the material before it raised the requisite facts. The Tribunal has, in effect, proceeded on the assumption that the material from Mr. Kevin Gleeson did not exist. With all respect to the primary Judge, we cannot accept that this can be characterised as no more than an imperfect expression of a process of reasoning which, in its essentials, was correct. It follows, we think, 10. that the Tribunal did not address the correct legal question. In the result, the appeal should be allowed, with costs, and the matter remitted to the Tribunal for a fresh determination. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Court. Associate nrivetur CPO we Dated: 28 September 1994 Counsel and Solicitors Mr. A.T. McInnes Q.C. with for Appellant: Mr. A.L. Hill instructed by Kenneth Harrison Counsel and Solicitors Mr. D. Ryan instructed by for Respondent: Australian Government Solicitor Date of hearing: 26 September 1994 Date Judgment delivered: 28 September 1994